My Lords, I regret to inform the House of the death of the noble Lord, Lord Kerslake, on Saturday 1 July. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.

To ask His Majesty’s Government what assessment they have made of the extent to which Drax biomass power station has complied with sustainability requirements; and whether they are reviewing subsidies to it.

My Lords, this is a matter for Ofgem. The regulator is the administrator for monitoring compliance with the sustainability criteria within the renewables obligation scheme. It has opened an investigation into whether Drax Power Ltd is in breach of its annual profiling reporting requirements related to the renewables obligations scheme.

I thank the Minister for that reply. It is estimated that we will have given Drax some £11 billion in subsidies over the different renewable energy schemes. Is the Minister concerned that Drax’s claim to be using sustainably sourced wood from Canadian forests currently lacks any detailed full-cycle carbon accounting and the audit trail that we have the right to expect for that level of subsidy? Why did Ofgem commission the technical consultancy Black & Veatch to advise on this even though the company is already working for Drax? Finally, does the Minister accept that, in order to get to the truth, independent advisers and scientists should go to Canada to check that 70% of the wood biomass being imported is actually sustainable offcuts, as our rule requires, and not from virgin forests?

A couple of points for the noble Baroness. First, the renewables obligation legislation was originally introduced by the last Labour Government. Secondly, Ofgem is investigating these matters. The noble Baroness is jumping to a lot of conclusions there. If it is proved that Drax is not in compliance, of course some of the value of the certificates that it has received will be withdrawn.

Speaking of proof, has the Minister had a chance to view the devastating “Panorama” on Drax? Drax’s claims have been fatally undermined. Ancient forests have been cut down and indiscriminately turned into pellets, transported 12,000 miles by ship and incinerated in Yorkshire, emitting more CO₂ than coal did before and at gigantic cost to the taxpayer. This is not the route to net zero.

The noble Lord should be careful of jumping to conclusions. I have not seen the programme, but my officials have. They have engaged extensively with forestry experts and Canadian officials following the programme, and the officials’ conclusion is that the “Panorama” programme provided an inaccurate representation of practices by the forestry and biomass sector on the ground.

My Lords, looking at renewables more broadly, does my noble friend have a view on the efficacy and morality of taking electricity that has been generated offshore in the Yorkshire and Humber region and transporting it all the way down to the West Midlands, when we could actually use that electricity locally, particularly to power up electric cars, for which there are so few charging points in rural areas?

I have to say that I am really not sure what the noble Baroness is talking about. There is a national grid. Electricity is transported from all parts of the country to other parts, as demand varies. That is the whole principle of a grid.

The emissions that occur as a result of Drax burning mature trees are not counted as CO₂ emissions; only emissions from transporting trees from forests to furnaces count. When are the Government going to wake up to this ridiculous accounting fraud and stop giving Drax green subsidies?

Again, the noble Baroness is jumping to conclusions before the investigation has proceeded. Based on the evidence reviewed to date, Ofgem has not established any non-compliance with the scheme. But the investigation is continuing and I would caution noble Lords to wait for the outcome from the independent regulator.

My Lords, transporting this woodchip from a forest somewhere in North America by truck or train, loading it on to a container ship, taking it to the Mersey, taking it across the Pennines in another train and then discharging it into Drax—how can that possibly be green?

It is because the sustainability criteria say that the biomass has to come from sustainable sources. Most of it is by-product from normal sustainable commercial forests.

My Lords, a few years ago when this Question came up in the House, the noble Lord assured the noble Earl, Lord Caithness, that if Ofgem found Drax not to be meeting its sustainability criteria, the subsidies would be immediately removed. Since then, we have had the “Panorama” review and, while I accept the noble Lord’s point that the jury is still out, I would like to know whether he is still prepared to make the same commitment to the House today.

Yes.

My Lords, you have to admit that the “Panorama” programme had some interesting facts. In fact, a lot of that information comes from Canadian environmentalists who are on the spot and see the ancient forests being destroyed for those wood pellets. So why on earth does the Minister still persist in saying that we are jumping to conclusions when he is just burying his head in the sand?

As somebody famous once remarked, recollection of facts may vary. Forgive me if I do not necessarily take as absolute fact the statements of some Canadian environmentalists. Officials have looked into it. Ofgem is investigating whether the biomass is sustainable or not. Let us wait for the outcome of that investigation.

My Lords, my noble friend said in his original Answer that it was matter for the regulator. Are the Government wholly satisfied with the way regulation is working at the moment, with questions around the regulator Ofgem? Who regulates the regulators?

The noble Lord was probably in the other place when the regulations and laws for Ofgem were passed. It is an independent regulator; that is the whole principle of it. Until I see any evidence that it is not carrying out its job satisfactorily, I will continue to have confidence in it.

My Lords, when Ofgem opened its investigation into Drax’s biomass sustainability reporting a month ago, it made clear it would act if it found breaches of the rules—the right approach, surely, to a single case. However, what assessment have the Government made of wider compliance with reporting requirements and what steps are they taking to improve monitoring, particularly with regard to the origin of fuel sources?

I refer the noble Baroness to the answers I have given to previous questions. There are other biomass operations that fulfil the sustainability criteria. If any evidence is produced and if the noble Baroness has any evidence, I would be delighted to pass it on, but until then we should trust what they say.

My Lords, in answer to the excellent question from the noble Lord, Lord McLoughlin, the Minister said that officials had looked into this and that Ofgem was satisfied. But, as far as this House is concerned, it is the Minister who is responsible. What has he personally done to look into this since the programme aired so that he could have answered the Question from the noble Baroness, Lady Jones, properly?

My Lords, I have answered the Question properly. Ofgem is an independent regulator and takes these matters extremely seriously. I have spoken to the chief executive of Ofgem about it and I have spoken to officials who have investigated it, so I feel that I have discharged my duties on this one.

My Lords, I declare my interests as set out in the register. The Minister was very dismissive to the noble Baroness, Lady McIntosh of Pickering, on the issues around the national grid and the use of sustainable energy. We had long debates about this, and about community energy, in the Energy Bill. Does he not accept that there is a possibility, with some of the large onshore wind turbines we now have, that we could almost avoid grid connection and go to direct supply for developments that are important?

That was not the question I was asked, but let me tackle the question from the noble Baroness. Of course, it is perfectly within anybody’s rights to set up a private wire supply and their own community generation if they wish, but I think the noble Baroness will find that the vast majority of those schemes also want to be connected to the national grid for cases where it does not work.

To ask His Majesty’s Government what steps they will take to ensure the United Kingdom meets the increased demands to produce nuclear submarines entailed by the AUKUS agreement with the United States of America and Australia.

My Lords, the UK is stepping up to meet the opportunities of the AUKUS nuclear submarine agreement, a multidecade undertaking that will create thousands of jobs. We are investing an extra £3 billion over the next two years in our defence nuclear enterprise, including support for AUKUS. Rolls-Royce plans to almost double the size of its Derby site, creating 1,170 skilled roles and demonstrating our commitment to the expertise embodied in British industry.

I thank the Minister for that Answer. I should add that my declared interest for the Purpose Coalition includes advising Rolls-Royce on how to meet that production challenge. AUKUS is great news for our global security and for the UK submarine industry, but does the Minister accept that it requires a step-change in Whitehall departments working together on a genuine national endeavour, which has long been promised but has not been delivered across Whitehall?

I thank the noble Lord for the role he is playing and wish him well in his advisory capacity to Rolls-Royce. This is a very important project. It is probably one of the most important we have entered into in the post-Second World War period. He is absolutely correct that there is a need for cross-government co-operation and consultation. That is happening. As he is also aware, one of the big challenges is in relation to skills. We are very cognisant of that, and activity is under way to try to increase nuclear sector engagement with young people and attract talent from a more diverse background.

My Lords, does the Minister accept that increasing the number of submarines armed with nuclear weapons invites less responsible countries, like Russia and China, to do the same? This increases the possibility of their accidental or malevolent use, leading to horrendous suffering.

I can simply clarify to the Chamber that the AUKUS programme’s SSN-AUKUS submarines are nuclear-propelled, not nuclear-armed.

My Lords, the first AUKUS pillar 2 autonomous weapons and artificial intelligence trial took place in April. On 27 June, the White House Indo-Pacific co-ordinator, Kurt Campbell, said that there would be co-operation with all three countries on artificial intelligence and quantum computing, and that other allies and partners would be invited to join this development. That is quite a significant development, although not unexpected, given the elements of AUKUS. Is there any possibility that we will get a ministerial Statement on this matter?

What I can confirm to the noble Lord is what is already in the public domain. We have always said that, as progress is made with the three countries on pillar 2—which is distinct from the original pillar, which is trilateral—other critical defence capabilities will then seek opportunities to engage allies and close partners. As the noble Lord correctly indicated, the trial held in April was most encouraging, and a two-minute video was released by all three nations. We have to take one step at a time.

My Lords, while AUKUS is clearly very important, Europe and our neighbourhood remain the closest security partners and allies for the United Kingdom. Could the Minister confirm that working with AUKUS will not reduce our commitment to our neighbourhood? At the same time, if there will be increased skills and work for developing the nuclear-propelled submarines, could some of that expertise be used to ensure that the development of other equipment, under the MoD’s auspices, is fit for purpose the first time round?

On the first point, it has always been acknowledged that, although AUKUS is intended to do two things—to augment our Indo-Pacific tilt and to provide us with our new class of AUKUS submarines and succession to Astute—it will also enable the UK and its partners to develop capabilities that will, for example, not only reinforce NATO but help the states in the Indo-Pacific bolster their own security. On the noble Baroness’s latter point, we already have a huge base of skills in the UK, as I indicated to the noble Lord, Lord Walney. That, quite simply, is why AUKUS is a trilateral agreement with the United States, the UK and Australia. We are building on that; we are not complacent. We need to expand that skills base. I agree with the noble Baroness that, once we do that, we will see a fanning out of other benefits to the broader defence enterprise.

My Lords, for the aspirations set out in my noble friend Lord Walney’s Question to be achieved, we need to ensure that the United Kingdom provides the capital impetus for us to participate fully in the construction and development of the submarines. Will the Minister tell us what steps are being taken by His Majesty’s Government to ensure that the United Kingdom is a full participant in the construction programme?

I respond to the noble Lord by reminding the Chamber that, in March this year, the Prime Minister announced that we are investing an extra £3 billion over the next two years in our defence nuclear enterprise to support AUKUS and other areas. Other financial contributions will be coming from Australia; for example, at the Rolls-Royce base in Derby plans are under way for a significant expansion of its Raynesway nuclear reactor manufacturing site. That will create 1,170 skilled jobs. We expect this tandem of co-operation to produce not only a contribution to the project itself but a financial contribution to the endeavour.

My Lords, the AUKUS programme is extremely good news; it is very good news for the UK and for stability. Looking to the future, does the Minister agree that this will allow us, in the longer term, to increase the number of SSNs we have—because we have too few—and that that will be good for the north Atlantic and the Arctic as well as the Far East? They can move from one place to the other in a matter of three or four weeks, so does she agree that this is a potential for the future?

It give me great pleasure to agree with the noble Lord—it is refreshing and, I hope, a recurring experience. The noble Lord makes a very good point. As he is aware, we currently have Vanguard that will translate into Dreadnought in due course. On the Astute class, the final two submarines are still being built: boat six, “Agamemnon”, and boat seven, “Agincourt”. They will make an important contribution, but as we move on to the Astute class, the noble Lord is correct. We are aware of diverging maritime challenges, not least in the high north and the Arctic. The MoD is cognisant of that. I referred to the fact that we have published our Arctic strategy to his colleague, the noble Lord, Lord Robertson of Port Ellen, on Friday.

My Lords, His Majesty’s Opposition Front Bench fully supports the AUKUS programme. As the noble Lord, Lord West, has pointed out, it will make a huge contribution to global security in the decades to come. Returning to the point a number of noble Lords have mentioned, there are already thousands of unfilled vacancies in skilled engineering in our defence industries. There will need to be a step change with respect to skills if we are to fully utilise all the opportunities that are available under the AUKUS scheme. The Minister mentioned some of the initiatives the Government are bringing forward, but I ask her—as a matter of urgency—to look at whether that needs refreshing. So far, all our efforts in that have not delivered the results we want.

I can share with the noble Lord that additional apprenticeship and graduate bursary schemes have been implemented across the enterprise, and significant further increases are planned to build the capabilities to increase the cohort of apprentices and new graduate opportunities by 2029-30. Importantly—and it refers to the point the noble Lord, Lord Walney, was making—the MoD, the Department for Energy Security and Net Zero and employers in the nuclear circuit are all working together as part of the Nuclear Skills Strategy Group to address common challenges. The noble Lord is correct to allude to the challenge: it is there but we are not complacent about it, and we have a number of initiatives designed to try to address it.

My Lords, does the Minister agree that moving from the step change we have all agreed this afternoon will require an integrated approach? That will then leave the question of command and control. Who will lead on AUKUS for the whole of the Government to make sure that, end to end, we deliver this important programme?

I hope I can reassure the noble and gallant Lord that the Cabinet Secretary has asked the MoD’s Permanent Secretary, David Williams, to be the UK’s AUKUS principal. That is a very significant position. He will have overall responsibility for the programme in the UK with support from the Director General Nuclear, the Deputy Chief of Defence staff, military capability and senior civil servants from a number of relevant departments from across Whitehall. He will be at the very top of the chain, the essential co-ordinating presence.

To ask His Majesty’s Government what assessment they have made of the balance between (1) the duty of local authorities under section 122 of the Road Traffic Regulation Act 1984 to secure expeditious, convenient and safe movement of vehicular traffic and pedestrians, and (2) the imposition of low traffic neighbourhoods and low emission zones.

My Lords, the department has made no such assessment. It is for local authorities to ensure they manage their roads in such a way as to fulfil the duties placed on them. They have a wide range of traffic management tools to support them in this.

My Lords, I declare a type of interest in that I drive an all-electric car and I have a clear conscience.

Does the Minister want people to return to work and productivity to increase? I am urging the Government to stop any government inducement to obstacles placed in the way of normal life in pursuit of ideology and fines, not science. Studies prepared for Oxford show that pollution is simply displaced from the centre and the same amount goes to the ring road where poorer people tend to live, and they are the ones punished by fines.

There are about 100 empty shops in Oxford. Businesses near the low-traffic neighbourhoods are folding with great losses, and they are often owned by ethnic minorities. There are tussles in the streets over the barriers, ambulances take longer and the once beautiful Broad Street is filled with industrial crates. Working people are having great difficulties, the consultations are ignored and the scientific evidence is withheld. Most important of all, the traffic blockades discriminate—even the blue badge is not exempt. Will the Government enforce the protection of the rights of elderly, pregnant and disabled people?

There was a fair amount in that statement. The noble Baroness mentioned Oxford, and it is important to understand that all the issues she mentioned should be taken up with the local authority. The Government have never been in control of local roads and are not now. These issues are devolved to the local authority, and I encourage her to raise those issues with her local council.

Speaking of convenience and safe movement of traffic, can the Minister say what is happening with autonomous vehicles, be they cars, lorries or buses, particularly with the trials going on in this country and stretching right across Europe?

The Government believe that there is a huge future for autonomous vehicles, and we will bring forward legislation when parliamentary time allows.

My Lords, I am sure the Minister agrees that we must get this right. The Transport for London web page tells us the details about the scrappage scheme changes and the full eligibility criteria for small and micro-businesses and charities. The new grace period will be available on the discounts and exemptions page at the end of this month, but the scheme is to be implemented in August. Does the Minister think it is acceptable that people struggling with rising costs should have only a few weeks to find out if they are eligible?

The scrappage scheme in London is of course under the remit of the Mayor of London, and the Government have no recourse to have any influence over it.

My Lords, the noble Baroness, Lady Deech, raised an important point. Would it not be sensible for the Government to have some conversations with these local authorities? Oxford, with a bereft high street, is not the Oxford most of us know and love, and it is important that we get this thing in perspective. The Government surely have an overall duty here.

My Lords, one-way streets, traffic calming and pedestrianisation have been used for decades. In some circumstances, they have been put in and are not working, and in those cases it is for the local authority to be held accountable by the local electorate. The Government do, however, provide various bits of guidance, both statutory and non-statutory, to assist local authorities to come to the right decisions.

My Lords, the noble Lord, Lord Campbell-Savours, is participating remotely.

My Lords, on low-emission zones, can Ministers identify any research showing that vehicles travelling over a given distance at a constant 20 miles per hour in a low gear at high revs emit less carbon monoxide than vehicles travelling at 30 miles per hour in a higher gear at low revs? When I asked for the evidence in 2021, this Minister gave the following answer:

“The Department does not have specific results for the situations outlined”.

How can the public throughout the UK have confidence in a speeding regime which lacks detailed assessment?

It is up to local authorities to decide on local speed restrictions, which they are encouraged to evaluate. As the noble Lord will know, in most circumstances 30 miles per hour is the limit, but some local authorities have chosen to make some streets 20 miles per hour.

The noble Baroness’s Question raises the important issue of the safe movement of pedestrians. My noble friend the Minister may be aware that the danger to disabled pedestrians posed by the irresponsible use of e-bikes and e-scooters in the centre of London’s low-emission zone was the focus of a recent Policy Exchange paper, A Culture of Impunity, to which several noble Lords contributed. Can my noble friend write to me with a formal response to its recommendations and place a copy in the Library?

I will certainly look into that, but I am not entirely sure that I will be able to do as my noble friend asks. The safety of people on our roads is critical, and one of the elements of traffic management is the reduction in killed and seriously injured people which I am sure all noble Lords would want to see. It is not just about journey time changes but increasing the number of people walking and cycling, and looking at modal shift and levels of car ownership.

My Lords, I was brought up in Oxford. It was known then as the “city of screeching tyres” and the college buildings were blackened by pollution. Surely the best way to promote the city is to continue with the huge environmental improvements that are taking place there.

As I said earlier, that is a matter for the council.

My Lords, local authorities are still having to rely on outdated guidance from 2007 for the design and modification of residential streets. In a debate in the other place in November last year, Minister Richard Holden referred to the Department of Transport publishing a revised version of the Manual for Streets early in 2023. Can the Minister please give us update on when we can expect that new manual?

Yes, I can indeed. The Manual for Streets is an important document on which we have engaged closely with stakeholders. That engagement is still under way but I can commit to the noble Baroness that the document will be published soon.

My Lords, I declare an interest: I was invited to a speed awareness course for travelling at 25 mph on Park Lane. Can my noble friend explain how Park Lane, with three lanes and a bus lane, can possibly be a 20 mph zone?

It is a 20 mph zone because the Mayor of London has decided that it should be.

My Lords, I am biased but the question from my noble friend Lord Campbell-Savours, on the emission levels associated with a 20 mph limit and a 30 mph limit, was splendid. I did not catch whether the Minister answered that question, which is presumably a pretty precise one, on which there can be scientific evidence. Can she try to answer it now?

I am not aware of any research in that area but I will take that question back to the department and write to the noble Lord.

My Lords, I have enjoyed the Minister’s answers, batting away some of the silly questions she has had from her own side. I just wonder whether the explanation for shops shutting is not that people are working from home now but simply the cost of living; and perhaps people are not travelling as far and are shopping locally.

I reassure the noble Baroness that there are no silly questions in your Lordships’ House. As I mentioned earlier, many of these schemes are put in place to enable local economic growth. I cannot conceive of my local town centre still having cars in it: it is a hugely thriving town centre because it is pedestrianised. However, what is really important is that local councils need to get it right. If they do not get it right, they need to listen to local communities and remove any interventions.

To ask His Majesty’s Government what progress has been made in implementing the recommendations on cybersecurity made by Sir Patrick Vallance in his report Pro-innovation Regulation of Technologies Review: Digital Technologies, published in March.

My Lords, in the Government’s response to the review, we set out that the Home Office is taking forward work to consider the merits and risks of the proposals made. We have created a group that includes law enforcement agencies, prosecutors, the cybersecurity industry and system owners to consider these issues and reach a consensus on the best way forward.

My Lords, Sir Patrick made a very clear recommendation to amend the Computer Misuse Act to include a statutory public interest defence for cybersecurity researchers and professionals carrying out threat intelligence research. This has been extremely long awaited. We finally had a review, which started in 2021 and reported this year; we had a consultation, which concluded in April; and now we have the steps that the Minister talked about. What conclusion can we expect at the end of the day? Progress on this has been totally glacial given the importance to innovation and growth of this change to legislation.

My Lords, I agree that there is an enormous necessity to get this right, but that is part of the problem of why things are perhaps not happening as fast as the noble Lord would like—progress is far from glacial. These issues are incredibly complicated because, as the noble Lord noted, the proposals would potentially allow a defence for the unauthorised access by a person to another’s property, and in this case their computer systems and data, without their knowledge and consent. We therefore need to define what constitutes legitimate cybersecurity activity, where a defence might be applicable and under what circumstances, and how such unauthorised access can be kept to a minimum. We also need to consider who should be allowed to undertake such activity, what professional standards they will need to comply with, and what reporting or oversight will be needed. In short, these are complex matters, and it is entirely right to try to seek a consensus among the agencies I mentioned earlier.

My Lords, I declare my interests as set out on the register. Does my noble friend accept that it is very difficult for Governments to keep up with the speed of change of technology in their legislation? The Computer Misuse Act is now 33 years old. If progress is not glacial, please could we have an injection of urgency into the changes to it that we need?

I agree with my noble friend that it is difficult for Governments to keep up with the pace of technological change, but I also reflect on the fact that much of the legislation going through your Lordships’ House at the moment contains many efforts to future-proof it in this area. As I said, I do not agree that this is glacial. I know that the Act is old. The report was delivered only earlier this year and the discussions are very complicated, as I just highlighted.

My Lords, if it is not glacial, it is very slow. The point we have heard from both noble Lords is that Sir Patrick Vallance made nine recommendations; the Government have accepted them. We know that cybersecurity is a real problem—the Government accept that—but what everybody is waiting to hear is what the Government intend to do and the timescale.

My Lords, I am trying to answer this question. Sir Patrick Vallance reported in April; it is now July. I do not think that is glacial or particularly slow. The fact is that these are complicated matters that need to be considered very carefully. They involve all sorts of different implications for us all.

My Lords, in addition to the amendment to the 1990 computer Act and the opportunity the Minister will have to address that in due course, will he reflect on what Sir Patrick said about international harmonisation and the need for regulation of significant emerging technologies to reflect what other countries are doing, as well as what we are doing?

The noble Lord makes a very good point, and one I inquired about this morning. There is a considerable exchange of information with our friends and allies and other interested countries across the world. It is perhaps worth pointing out that the Department of Justice in the States has just reissued guidelines for prosecutions only. Guidance and prosecutorial discretion are major features of the American way of doing it; we are going a slightly different route and seeking consensus, but of course we will consult.

My Lords, the Minister may be aware of reports out this morning that Barts Health NHS Trust has been hacked, potentially by a ransomware group of thieves—I suppose that is the right word—and that 7 terabytes of data may have been taken control of, which of course may well involve confidential personal medical data. Does the Minister agree that it is really important that the NHS workforce plan includes and considers the NHS’s IT needs and IT skill needs? Is that something the Minister is talking about with the health department?

I have not spoken about it directly with the health department, but I note from other debates that we have had in your Lordships’ House over the past few months that a skills shortage in the area of computers, data and whatnot is a problem across all economies, not just ours.

My Lords, I thank the Minister and his colleagues in the Home Office, and those in the Foreign, Commonwealth and Development Office and the Ministry of Defence, for the excellent and detailed briefings they give us on security issues, which are really helpful. What precautions are taken to make sure that this information is not passed, either deliberately or inadvertently, to representatives of the Government of Russia?

My Lords, I am afraid I have no idea; I will find out.

My Lords, I am a member of the Joint Committee on the National Security Strategy. We are currently conducting an investigation into ransomware and cybersecurity, which are very much at the heart of this Question. I agree with the noble Lord opposite who said that the Computer Misuse Act is now 33 years old—it is. Heaven knows the world has changed since then. I agree with the Minister that an enormous amount of co-ordination has to be done within government to get this right. Can the Minister provide some future opportunity in government time to have a more general debate about the issues involved? Otherwise, knowing what this House is like, it will take a year or more before the report that the committee eventually introduces can be debated here.

The noble Viscount makes a good point. I am obviously unable to comment on the scheduling of parliamentary business but, when the group that I referred to in my initial Answer has finished its consultations and considerations and come to a consensus, we will of course report back to Parliament. I imagine that will include a debate.

My Lords, does not everything that has been said on this Question today demonstrate the importance of fresh intelligence work and, therefore, the importance of changing the Computer Misuse Act?

I do not think that anybody disagrees with that. I am just saying that we need to get it right and do it properly.

My Lords, the Vallance report talks about the fact that, under the Computer Misuse Act, professionals conducting legitimate cybersecurity research in the public interest currently face the risk of prosecution. It asks us to look at the examples of France, Israel and the United States. Is my noble friend the Minister aware of any possible unintended consequences of modifying the Act to align it with the changes in those countries?

Yes; one of the considerations that is being looked at is the various potential unintended consequences of making some of these changes. As I say, they involve a fairly significant invasion of privacy—I suppose that is the right phrase. There may well be circumstances in which that is appropriate but, obviously, who does it and how they do it are incredibly difficult.

My Lords, before the House resumes consideration of the Illegal Migration Bill on Report, we come to two Divisions that the House agreed to defer after the failure of the pass reader Division system on 28 June, beginning with the deferred Division on Amendment 15.

My Lords, Amendment 51 in my name seeks to retain existing statutory time limits for the detention of unaccompanied children put in place by a Conservative Government. I am grateful for the significant support from these Benches and across the House during last Wednesday’s debate. Although we have received some verbal reassurances throughout the passage of the Bill, the Government have yet to put in place the necessary safeguards in time limits to protect children from the harms of detention under the Bill. Therefore, I have no alternative but to test the opinion of the House. I beg to move.

My Lords, if Amendment 51 is agreed to, I cannot call Amendments 52 to 54 because of pre-emption.

My Lords, I have thought long and hard about calling another Division from these Benches, this time on retaining our current statutory time limits on detention of accompanied children or children who are with their families. These children are likely to be much younger. The psychological harms of detention on young children are significant and likely to impact them for the rest of their lives. For that very reason, I ask that we retain the statutory time limits put in place by a Conservative Government. I wish to test the opinion of the House. I beg to move.

My Lords, this is consequential and I beg to move.

My Lords, I move Amendment 64 and will introduce Amendment 65. One is consequential to the other so I will take them together. I thank the right reverend Prelate the Bishop of Gloucester and the noble Baronesses, Lady Sugg and Lady Gohir, for their invaluable support, and Women for Refugee Women for all its work on the amendments.

The amendments do no more than restore the status quo ante by limiting the detention of pregnant women to 72 hours, extendable up to a week with ministerial authorisation. This aim is supported by the JCHR, Children’s Commissioner and many organisations.

The existing time limit represented a compromise put forward by the then Home Secretary Theresa May in response to your Lordships’ House voting time and again for the absolute exclusion of pregnant women from detention, as recommended in the government-commissioned review by Stephen Shaw, former Prisons and Probation Ombudsman. Shaw based his recommendation on what he considered to be the incontrovertible evidence of detention’s deleterious effects on the health of pregnant women and their unborn children. His verdict was referenced in a recent letter to the Times from, among others, the CEO of the Royal College of Midwives and the president of the Royal College of Obstetricians and Gynaecologists, calling on us to oppose the removal of the detention limits.

I still await an answer to the question I posed in Committee, citing an unanswered letter from the Independent Advisory Panel on Deaths in Custody to the Home Secretary. Has the Home Office

“carried out a full assessment of the risks linked to the indefinite detention of pregnant women”?—[Official Report, 7/6/23; col. 1494.]

Given that the limits on detention for pregnant women were introduced only seven years ago, and it has been admitted that very few have come over in small boats, there must surely be strong grounds for this change in policy. However, as the noble Baroness, Lady Sugg, exposed so skilfully in Committee, we have been given the flimsiest of justifications, lacking any evidential base. For example, in Committee the Minister declared that he was

“happy to repeat … that we must not create incentives for people-smuggling gangs to target pregnant women or provide opportunities for people to exploit any loopholes”.—[Official Report, 7/6/23; col. 1504.]

Could the Minister explain what the Government have in mind here? Are they suggesting that women might deliberately get pregnant to avoid unlimited detention or that people smugglers will be scouring refugee camps for pregnant women?

To be fair to the Minister, he tried to persuade us that pregnant women would be treated well on a case-by-case basis. But let us remember what Theresa May said in 2016:

“This new safeguard will ensure that detention for pregnant women will be used as a last resort and for very short periods”.—[Official Report, Commons, 18/4/16; col. 679WS.]

For a safeguard to be effective, it needs the backing of law. Discretionary case-by-case consideration is simply not enough to ensure the protection of women in very vulnerable circumstances. We can see this from what was happening before the time limit was introduced. Previous Home Office guidance stated:

“Pregnant women should not normally be detained”.

However, under this guidance, nearly 100 pregnant women were detained in 2014, with one-third held for over a month and four held for between three and six months. The gulf between policy and practice has been closed only with the implementation of the statutory time limit.

The Minister also insisted that pregnant women will be protected through categorisation as adults at risk level 3. Yet during the passage of the 2016 Act, the Government ultimately recognised that this approach provided insufficient safeguards. Why are they now arguing the opposite? The Minister further tried to reassure us by pointing out that

“it will be open to pregnant women to apply to the First-tier Tribunal for immigration bail after 28 days”

or that

“a writ of habeas corpus”—

which, as pointed out in Committee, is very limited in its application—could

“be made at any point”.—[Official Report, 7/6/23; col. 1505.]

But these are women who are likely to be very stressed and may already be traumatised by what they have been through, with damaging effects on their unborn baby. Twenty-eight days in detention is a long time, particularly in the context of a pregnancy.

How realistic is it to expect them to have to engage with the legal system for protection that they receive automatically now? If they did so, why would the Government want to spend time and money on what should be unnecessary legal challenges? This is all in the context of what the JCHR has described as a severe restriction on judicial supervision.

When we debated a similar amendment in Committee, not only did all those who spoke give it unequivocal support but I was aware of a number of noble Lords sitting on the Government Benches and the Cross Benches who were supporting the amendment in silent solidarity. That was quite something, given that it was well past midnight. While I feel passionately about the amendment, it is a very small cog in the wider wheel of the Bill. It is one which the Government could easily concede without undermining the Bill’s objectives, as much as I disagree with them. I very much hope that the Minister will remember what is at stake for pregnant women and their unborn children and will do the right thing today. I beg to move.

My Lords, it is a great pleasure to follow the noble Baroness, Lady Lister, who expertly outlined why the amendment is needed.

I will not repeat all the points made, but this is an issue of dignity for a highly vulnerable group. I will highlight one or two things that have been said. There is no evidence to suggest that the current 72-hour time limit on their detentions resulted in lots of pregnant women making the crossing. The Government have previously conceded that the adults at risk policy would not adequately safeguard pregnant women, and, in response, the 72-hour limit was brought in. We have research from prior to the introduction of this time limit that highlighted the inadequate healthcare for detained pregnant women. It is hard to believe that any healthcare arrangements would therefore relieve the stress of detention and the damaging impact on both a pregnant woman and her unborn baby.

We have already heard from the noble Baroness, Lady Lister, on the number of medical organisations and people who are opposed to removing the 72-hour limit. I join with them by strongly supporting this amendment, and I urge noble Lords to do likewise.

My Lords, I support the amendment from the noble Baroness, Lady Lister, to which I have added my name, because this Government are compromising the safety of pregnant migrant women and their babies.

To date, the Minister has not provided evidence that the numbers will increase if women are not detained. I wrote to the Minister and last week he acknowledged that, since January, no pregnant migrant women have arrived in this country illegally. Evidence has also not been provided that housing a few handfuls of migrant women, who have probably arrived over several years, will provide a danger to our society. For those reasons, I urge the House to support the amendment from the noble Baroness, Lady Lister.

My Lords, I support the cross-party amendments in this group. I thank my noble friend the Minister for his engagement, which I have truly appreciated, but I regret to say that I have yet to hear an argument as to why this amendment should not be accepted.

This is a very narrow and focused amendment that simply maintains the current protection on the detention of pregnant women. There is a clear medical case, which is why it is supported by the royal colleges, medical professionals and over 140 groups representing women. It will not create loopholes. It will not incentivise pregnant women to make a dangerous crossing across the channel. It does not exempt women from the rest of the provisions of the Bill, such as removal. It will not create a pull factor, and there is really no way it can be exploited by the criminal gangs who arrange crossings. There cannot be false claims of pregnancy, as the time limit starts only once the Home Office is satisfied that a woman is pregnant.

Some have said that pregnant women are unlikely to be removed, given fitness to fly, but that is not the case, as NHS guidelines say that women can travel safely well into their pregnancy. That argument also misses the point, as this narrow amendment is not about removal; it is about detention. If it is the Government’s case that pregnant women may not be removed, it is even more important that this amendment be accepted, so that pregnant women are not detained for lengthy periods of time.

The amendment does not undermine the Bill. It is not a wrecking amendment; I have been very careful to try to avoid those. It impacts just a small number of women, but it will have a big impact on those women’s health and futures.

My noble friend the Minister is sincere when he says that the Government do not wish to detain pregnant women for any longer than is strictly necessary. Sadly, however, before this protection was in place and in legislation, women were kept in detention for weeks and sometimes months. We should not return to that. This narrow amendment is designed to ensure that that does not happen and that no women can slip through the cracks. Even at this last minute, I sincerely hope that my noble friend will accept the amendment. If he does not, however, and the amendment is pressed, I will, with regret, vote against the Government and in support of the amendment.

My Lords, we on these Benches are pleased to support both amendments in the name of the noble Baroness, Lady Lister. I recommend that the Minister take note of the request she has made time and time again in this House for some form of impact assessment in respect of pregnant women.

My Lords, I have not spoken earlier on the Bill, but I hope the House will forgive me for speaking for a couple of minutes now.

This debate takes me back 25 years to when I chaired a hospital trust. Pregnant women prisoners from Holloway were brought in wearing handcuffs and were chained to beds when receiving treatment and giving birth. We fought a battle with exactly the people who are supporting this amendment to stop that practice. It left me with an overwhelming long-term view that, in all but the most exceptional circumstances, pregnant women should not be in prison in the first place—and those were pregnant women who had been convicted of crimes. Here, we are talking about the detention of people who have not been convicted of crime in that way: they are migrants who are extremely vulnerable. It would be a terrible, retrograde step to take away the protections they have at the moment, so I support the amendment.

My Lords, enforced equality, no matter where, cannot be right. To say that everybody must be treated precisely the same under this Bill—which is the only substantive argument that has been advanced—is something that I just could not accept.

My Lords, I thank my noble friend Lady Lister and the others who have signed these amendments, which we fully support. At its heart, there may be debate and disagreement with respect to this Bill. It is certainly contentious and sometimes we have large disagreements. Despite that, however, whatever the disagreements, we should do the right thing. That is why we support the amendments from my noble friend Lady Lister—because they seek to do the right thing by pregnant women.

My Lords, as we have heard, with these amendments we return to the issue of detention time limits in relation to pregnant women. As I explained last Wednesday, holding people in detention is necessary to ensure that they are successfully removed from the United Kingdom under the scheme provided for in the Bill, which is designed to operate quickly and fairly.

However, our aim is to ensure that no one is held in detention for longer than is absolutely necessary to effect their removal. The duty on the Home Secretary to make arrangements for the removal of all illegal entrants back to their home country or to a safe third country will send a clear message that vulnerable individuals, including pregnant women, cannot be exploited by the people-smuggling gangs facilitating their passage across the channel in small boats on the false promise of starting a new life in the UK.

Under the Bill, detention is not automatic. The Bill confers powers to detain, and the appropriateness of detention will be considered on a case-by-case basis. As regards pregnant women, we expect that anyone who is in the later stages of pregnancy and who cannot be removed in the short term will not be detained but would instead be released on immigration bail.

For women who are detained in the earlier stages of pregnancy, we already operate our adults at risk policy, where pregnant women are recognised as a particular vulnerable group. In all cases in which a pregnant woman is detained for removal, the fact of her pregnancy will automatically be regarded as amounting to level 3 evidence under the adults at risk policy, and thus the pregnancy will be afforded significant weight when assessing the risk of harm in continued detention. This means a woman known to be pregnant should be detained only where the immigration control factors that apply in her case outweigh the evidence of her vulnerability—in this case, the evidence of her pregnancy. Such control factors at level 3 are where removal has been set for a date in the immediate future or where there are public protection concerns.

The detention of a pregnant woman must be reviewed promptly if there is any change in circumstances, especially if related to her pregnancy or to her welfare more generally. Examples of specific welfare considerations that may need to be taken into account include the stage of pregnancy, whether there have been complications in the pregnancy, any known appointments for scans, care or treatment, and whether particular arrangements may be needed to facilitate safe removal. While in detention, pregnant women will receive appropriate healthcare.

I assure the House that, as now, the enforced removal of a pregnant woman must be pursued only where it can be achieved safely and there is no suggestion that her baby is due before the planned removal date. Additionally, pregnant women will not be removed from the UK if they are not fit to travel based on medical assessments.

Given the safeguards we have already built into the arrangements for the detention of pregnant women, the Government remain of the view that these amendments, however well-meaning, are not necessary. I am very grateful to those who have spoken in this debate for outlining their—I am sure—well-held concerns and for their thoughtful contributions. However, in light of what I have just said, I ask the noble Baroness, Lady Lister, to withdraw her Amendment 64. If, however, she is minded to test the opinion of the House, I invite noble Lords to reject the amendment.

My Lords, I am very grateful to everyone who spoke, and to the Minister as well. Unfortunately, I do not think that he really heard, or listened to, the arguments put. He says he does not think that the amendment is necessary. I am sorry, but countless health organisations, Members of this House and many others think that it is. It is not enough simply to give us assurances here. I have no choice but to test the opinion of the House.

My Lords, I rise to speak to Amendments 66 to 76, which stand in my name, and in support of Amendments 77 to 79. The substance of my amendments is in Amendment 76. What I apprehend will happen, if the matter is brought to the opinion of the House, is that we will vote on Amendment 66 and, if it is carried, Amendments 67 to 76 will be moved formally. That seems the correct procedure to me; I have not been contradicted in that.

The amendments I have tabled are designed to confirm that the lawfulness of immigration detention is not simply put in the hands of Ministers but remains subject to the principles established in common law. All the amendments in this group would reinstate the existing Hardial Singh principles and be consistent with the conclusion and recommendation of the Joint Committee on Human Rights at paragraph 202 of its report. What did it say? It said:

“The common law approach to immigration detention, established in the case of Hardial Singh, currently operates to ensure that immigration detention complies with Article 5 ECHR”.

Before we possibly hear criticism from some quarters of the House about the use of the European Convention on Human Rights, I remind your Lordships, as a parenthesis, that it has recently been cited by the Government in support of their case in the High Court. They cannot have it both ways; they have had it the way of wanting to support the convention in court. The Joint Committee goes on:

“This recognises that it must be for the courts to determine the legal boundaries of administrative detention … We are extremely concerned that this change would result in an immigration detention system that is not consistent with Article 5 ECHR. The Bill should be amended to ensure that there is independent, judicial oversight of individual liberty and compliance with Article 5”.

What are the Hardial Singh principles? Before I come to them, I will cite a dictum from my noble friend Lord Brown of Eaton-under-Heywood, who—very sadly for the rest of us on this side of the House—retired recently. In 2012, in the case of Lumba v Secretary of State for the Home Department in what was then the House of Lords, rather than the Supreme Court, he stated:

“Freedom from executive detention is arguably the most fundamental right of all”.

That has been adopted, repeated and uncontradicted.

The four limbs of Hardial Singh, which were created by my noble and learned friend Lord Woolf in his judgment in that case, have been identified and described in more detail by Lord Dyson as four propositions governing the legality of Immigration Act detention emerging from Hardial Singh:

“i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

iv) The Secretary of State should act with … reasonable diligence and expedition”.

Those are magnificent principles, created after repeated cases following our common-law tradition of creating sound precedent when there is not statutory law in place that is lawful.

The court makes its own judgment when applying the Hardial Singh principles and is not limited to reviewing the jurisdiction that has been exercised by a Secretary of State. It can examine “incidental questions of fact”, some of which

“the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary’s views as may seem proper”.

Those are the words of Lord Justice Toulson in R v Secretary of State for the Home Department in 2007.

That is the legal basis for these amendments. I will now leave the world of reality and the law and take a short trip into cloud-cuckoo-land. If any of your Lordships wishes to have a quick cup of tea, they can hear a shorter version of this by simply going into iPlayer and listening to last weekend’s edition of “Dead Ringers” on Radio 4, which tore this Bill to pieces in about 35 seconds. We keep hearing from the Minister something that is not based on reality. He seems to have forgotten that the Government lost a case in the Court of Appeal last week. We hear their plea in mitigation that it was a 2:1 decision, but every day in this House we have majority and minority votes. Verdicts of juries by 11 to one or 10 to two are no less verdicts of juries than verdicts by 12 to zero, so that argument has no power whatever.

Above all, we in this House are entitled to expect the Government to obey the law. They cannot send anyone to Rwanda; it is unlawful. The Court of Appeal found that the risk of unlawful refoulement from Rwanda meant that the Rwanda scheme was unsustainable. Furthermore, when the statistics for June—which I mentioned in the House last week—were recalculated yesterday, they showed that the number of people coming on small boats has reached record levels. So it is not exactly the deterrent that the Minister has been calling for repeatedly, unless they are going to change their approach and say, “Come to Britain in your small boats; it’s the quickest way of getting to Rwanda and to the two-star hotel accommodation that is being supplied there”.

We are not in a realistic situation, because they can send nobody to Rwanda at the moment. The appeal to the Supreme Court will not be heard and adjudged upon before October at the earliest. We will probably be into the next Session of Parliament. It is a little bit of an insult to this Parliament that the Government have not obeyed the law as found in that case, withdrawn this Bill and said, “We’ll start again when we have a decision from the Supreme Court”.

We have to be careful that we are the antidote to oblique motives. There are oblique motives based on the assumption, and not on any good grounds, that the Government will be able to send people to Rwanda—maybe they will, maybe they will not, but at the moment they have lost. My request and submission to your Lordships is that the only decent thing this House can do—Members on all sides, and I hope that the lawyers will not contradict this—is support the Hardial Singh principles and back Amendments 66 to 79.

My Lords, I speak to Amendment 76 which, in my view, sets out in the clearest possible terms the principles that should be applied to the power of detention presently under discussion. Indeed, if I have correctly understood the law—of which the noble Lord, Lord Carlile, reminded us—Amendment 76’s principles are principles that are currently being applied by the courts, and will be applied unless this Bill is enacted in its present form.

It is perhaps worth reminding the House of the strategic purpose of the Bill: to deter would-be migrants by the prospect of deportation to their country of origin or to a safe country. In my view, that is a perfectly legitimate objective; nation states are entitled to regulate the flow of migration. However, I also think that, in the modern world, that can be done only by the collective action of countries working together. That may require—I think it probably will—the substantive amendment of existing international agreements and conventions. I think there is very little prospect of unilateral action succeeding, save on the margins of the problem. The policy that underpins this Bill will fail because it will not be possible to deport migrants in sufficient numbers to constitute an effective deterrent.

Given that, I am extremely concerned about the ability of a Secretary of State to use a power of detention to reinforce, rather than to implement, the policy of deterrence. That would be an improper use of the power of detention. I am also deeply concerned that the power of detention as contemplated by the Bill will be used as an administrative convenience: detention without obvious limits of time in the hope that some possible prospect of deportation in respect of an individual will turn up. In my view, that would be highly objectionable.

I come to the four detailed provisions in Amendment 76. They should be considered individually. I will not repeat each one, because the noble Lord, Lord Carlile, has read them out, but just take the first and ask a sensible question:

“the Secretary of State must intend to remove the person being detained and can only use the power to detain for that purpose”.

That seems to be a very fair statement of the law, and we are entitled to know from my noble friend the Minister what the principled objection to such a statement is. The same question applies to each of the remaining three provisions. I will not read them out because the noble Lord already has. Each one of them seems to me to be wholly right as a statement of principle, and this House is entitled to know the principled objection to them if there is one.

As it happens, I think I know the principled objections—at least I know the objections—because they are set out in paragraph 95 of the Explanatory Notes. The Government wish to give the Secretary of State, rather than the courts, the right to determine the length of time deemed to be reasonable for a period of detention. Moreover, when early deportation is not practicable, the Bill will give the Secretary of State the power to detain for such a period that the Secretary of State deems reasonable. That is a huge enlargement in the discretionary powers of a Secretary of State, and I do not want to give any Secretary of State, least of all the present Home Secretary or her immediate predecessor, such additional powers. In my view, the judgment of the legality of detention should be left to the judges and the courts, in applying the principles that are so well set out in Amendment 76.

My Lords, I have been asked by my Front Bench not to speak at all and, if I break that, to speak in the shortest possible terms. I can do that, because I completely support the noble Lord, Lord Carlile, in the speech that he just gave and most particularly in his admonishing the Government for not withdrawing this Bill. I have read the two court judgments and can say only that, until or unless the Supreme Court takes a different view, Clause 2 is a nullity, and that is the heart of the Bill.

My Lords, I shall be even briefer. I listened with great interest to our two lawyers. They spoke with the fluency and knowledge that one simply has to respect. However, I point out that we face a very difficult policy problem, with serious effects on public opinion towards immigrants and arrivals in Britain. We face a situation in which, so far, what the Government have done has had no or very little effect. If this continues for some months or longer, there will be a serious impact on the authority of this Government and, possibly, the successor Government. I ask the lawyers and other Members of the House to bear those aspects in mind.

My Lords, in the absence of my noble friend Lady Ludford, who cannot be in her place today, I will speak to Amendments 77, 78 and 79, which are in her name and that of the noble Lord, Lord Anderson of Ipswich. Those three amendments are intended to tackle the same issues as those tackled by the noble Lord, Lord Carlile, albeit with a different approach. If the noble Lord wishes to press his Amendment 66 to a vote, we will support him.

It is critical that the decision about the reasonableness—we have just heard that word from the noble Viscount, Lord Hailsham—of the length of immigration detention remains a matter for judges, not for the Secretary of State. Incidentally, those who read the judgment of the Appeal Court last week will have noted subsection (5) of paragraph 264, in which the Appeal Court questions

“whether the culture of the Rwandan judiciary will mean that judges are reluctant to reverse the decisions of the Minister”.

This very much puts the separation of powers between the courts and the Executive in Rwanda under question. Here we have virtually the same process, in which the courts of this country are being denied the principles on which they have operated. Set against that is a decision that is down to the reasonableness of the Secretary of State.

It is critical to preserve the Hardial Singh principles to ensure that the most vulnerable people do not have their freedoms curtailed unjustifiably. When the Secretary of State deprives someone of their liberty, there must be a clear avenue for the person to seek independent review of the legality and necessity of their detention. Detention should be for only a short period pending removal. We know now from the judgment that that will be much more unlikely. With no viable agreements in place, save with individual countries for individual persons who belong to those countries, it is highly likely that the 28 days that people will be detained on arrival in the UK will not be pending removal but will be purposely and purely to deter others.

We will be building up more and more people in detention or in some form of curtailed liberties. That is wrong, and it is why the judiciary needs to maintain oversight. This is critical, given that the Bill intends to detain everyone, regardless of age, ill health, disability and trauma. I am pleased to speak to these amendments and, as I say, these Benches will support the noble Lord, Lord Carlile, if he wishes to press his amendment.

My Lords, we will support the noble Lord, Lord Carlile, when he presses Amendment 66, and we would expect the subsequent amendments he mentioned to be consequential to that. He clearly and helpfully set out the four Hardial Singh principles and gave their legal basis and history, and I thank him for doing so. As he pointed out, the Government themselves recently cited those principles in a High Court case. I also thank the noble Viscount, Lord Hailsham, who succinctly summed up the Opposition’s view on the Bill. He said that there is little prospect of unilateral action succeeding, and we agree. He deplored the Secretary of State’s using the power of detention to reinforce the message of deterrence, rather than speaking of the need to implement the Bill, and we agree with that as well. He said that the power should not go to the Secretary of State rather than the courts, and he cited the Explanatory Memorandum. We agree with that too, so I thank the noble Viscount for summarising our view of the Bill.

The noble Lord, Lord Green, said that what the Government have done so far has not had much had effect. The Government are asking us again to support them to do more, yet they have been unsuccessful in the various Bills they have introduced in recent years to try to address this problem. It is a real problem, and there needs to be a different approach to reduce the numbers. Of course, I agree with the noble Lord, Lord German, as well. For all those reasons, we will be happy to support the noble Lord, Lord Carlile.

My Lords, as we have just heard, Clause 11 clarifies the time period for which the Secretary of State may detain individuals by placing two of the common law Hardial Singh principles on to a statutory footing. As we have also heard, the principles provide that a person may be detained only for a period that is reasonable in all the circumstances, and if it becomes apparent before the expiry of the reasonable period that the Home Secretary will not be able to examine, effect removal or grant leave within a reasonable period, the Home Secretary should not seek to continue the detention.

As my noble friend Lord Hailsham noted, the Explanatory Notes published with the Bill make it clear that it is the Bill’s intention expressly to overturn the common law principle established in R on the application of A v the Secretary of State for the Home Department, 2007, and that henceforth it will be for the Secretary of the State rather than the courts to determine what constitutes a reasonable time period to detain an individual for the specific statutory purpose. In this regard, these amendments seek to preserve the status quo and leave it to the courts to determine the reasonableness of the period of detention. I put it to your Lordships that it is properly a matter for the Home Secretary rather than the courts to decide such matters, as the Home Office will be in full possession of all the relevant facts and best placed to decide whether continued detention is reasonable in the circumstances.

If my noble friend is right, he is effectively saying that people who are detained will be released if there is no prospect of deportation. If that is right, the policy of deterrence is entirely without merit.

My noble friend is right, in that it is one of the Hardial Singh principles that, if there is no reasonable prospect of removal, that person should not be detained. But I cannot agree with him that the policy of deterrence is not right, because it is clearly the Government’s intention to remove any illegal entrants to a safe third country. In answer to the noble Lord, Lord Carlile, I add that the Court of Appeal unanimously agreed with that being lawful as a matter of principle.

We recognise that circumstances can change. Where that is the case, detention must be reviewed. If it is considered that the anticipated period of detention is not reasonably necessary, the individual will be bailed. This reflects the existing legal and policy position on the use of detention.

It remains the Government’s view that the provisions in Clause 11 provide an appropriate balance between the respective roles of the Home Secretary and the courts. Accordingly, I ask the noble Lord to withdraw his amendment.

My Lords, I express my gratitude to the noble Viscount and others who have spoken on the Bill, including the noble Lord, Lord German. I now come to this place for my daily dose of disappointment. It seems to me that the Minister is deliberately missing the point. He cannot be failing to see it, and I very much regret having to say that.

Who do noble Lords trust to make these decisions: a Minister or the courts? I will tell them something about the latter, in case they have never seen any of these cases in court. Judges sit day after day in the Administrative Court, hearing case after case involving asylum and refugees, and they make decision after decision about whether a period of detention is too long, too robust or unreasonable in some other way. They have built up a corpus of law which has become reliable and admired not just in this place but throughout our jurisdiction and the common law world.

Make your choice. I am going to test the opinion of the House.

My Lords, can the noble Lord explain why our courts, and our officials acting under their duties, reach such different decisions from the courts and officials on the continent? Why do we reject only 25% of claims for asylum, whereas France rejects 75%?

My Lords, this is Report and that intervention is not appropriate, I am afraid.

Whether it is appropriate or not—and I tend to agree with the noble Lord, Lord Paddick, on that subject—it seems to me that the noble Lord who just intervened has made a very selective judgment without analysing the continental cases that have taken place. I have given a fair description of what happens in our jurisdiction; it is the one that I regard well, and I hope that your Lordships will too.

My Lords, Amendment 87 is in my name, and I thank the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Berridge, and the noble Lord, Lord Touhig, for adding their names to it. We on these Benches support all the amendments in this group. With the exception of the amendments in the name of the noble Baroness, Lady Meacher, who wishes to remove Clauses 15 and 16 from the Bill—that would be the ideal solution but is unlikely to win the day—they try to fully understand the relationship between the Home Secretary’s new powers as indicated in Clauses 15 and 16 and the obligations and duties of local authorities to children as laid out in the Children Act 1989.

The statutory scheme for looked-after children has been carefully developed over many decades, with safeguards added in response to learning from systematic failings and research into different aspects of child well-being. Empowering the Home Secretary to radically change that statutory scheme and the provisions around it on the basis of how a child arrives in a local authority area is both radical and untested; it restructures England’s child welfare system.

Where there was total clarity on the interests of the child, the clauses bring ambiguity and confusion. I am confused, as are many other noble Lords, about how the powers given to the Home Secretary in Clauses 15 and 16 are in line with the duties and obligations of local authorities. Unaccompanied children seeking asylum are children in need under the Children Act 1989, and local authorities have specific duties to them and specific powers—for example, under Sections 17 and 47. Under Part 1 of Schedule 2 to the Act, certain activities have to follow.

Section 22C of the Children Act sets out the ways in which local authorities are to accommodate and maintain children. Section 23ZA requires local authorities to regularly visit looked-after children. Sections 25A and 26 place a duty on local authorities to appoint an independent reviewing officer for looked-after children and to make arrangements for independent advocates for them.

The first question I wish to tease out is: when children are removed—either put into the Home Office accommodation initially or removed at the request of the Secretary of State—do they still have looked-after status? If so, how will provision be made for local authorities to carry out the duties they have to looked-after children? The significant question is: what happens when the local authority deems that the Home Office accommodation is not in the best interests of the child, as the statutory scheme suggests? Under this provision of the Bill, can the local authority override the Secretary of State’s request to move a child into certain accommodation and move them into accommodation that is in their best interest? It is a key question that was asked in Committee which the Minister did not answer. The Minister said that he would write to noble Lords on this issue, and I am very pleased that at 12 pm today a letter dated 3 July arrived in our inboxes.

However, that letter creates further confusion and does not answer the following central questions. How will local authorities be able to conduct all their duties under the Children Act 1989? Why does the Secretary of State’s new power lie in the provisions of that Act in terms of where a child shall be put, particularly in terms of the best interests of the child? We really need clarity to be able to understand the interrelationship and how local authorities can carry out their full legal duties under the Children Act 1989 to put the interests of the child first. The Minister was unable to clarify this in Committee and it is important that those issues are now clarified on Report. I beg to move.

My Lords, I declare that I was President of the Family Division and tried endless care cases involving local authorities. I am extremely concerned about Clauses 15 and 16 and their interrelation with the Children Acts, particularly the Children Act 1989. As the noble Lord, Lord Scriven, has already pointed out, the Secretary of State does not have parental responsibility for children.

I pointed this out to the Minister several times in Committee. So far, and I do not mean to be impolite, I am not sure that either he or—more importantly—the Home Office have put their minds to the implications of parental responsibility. I have not seen a copy of the letter that apparently was sent. It would have been helpful if I had seen it before I came to this House, because since I have been here I am afraid that I have not been looking at my emails.

The local authority is, under the Children Act, the only corporate parent and no one else can be. If the local authority goes to the court and seeks a care order under Section 31 of the Children Act 1989, there will be a court order requiring the local authority to keep the child and place the child in appropriate accommodation. I ask the Minister: has the Home Office has reflected on what Clause 16 is saying—that the Home Secretary can take a child away from local authority accommodation and put that child somewhere else? Is it intended that this Bill is to override the Children Acts and create a new situation where parental responsibility is of no significance if the Home Secretary considers that a child should be dealt with by the Home Office and not a local authority?

This is a very serious legal situation for children. Although there may not be all that number of younger children, there are certainly some. Even a child of 16 is entitled to the care of a local authority. I just wonder whether the Government have thought through the implications of this. I do not believe that this matter will be taken to a vote, which I am rather sad about in a way, because I would like the Government to put their minds to the existing law—which, I have to tell noble Lords, a Conservative Government passed in 1989, and I was one of those who played a part in the legislation. I am extremely sad to see these two clauses.

My Lords, I have added my name to Amendment 87. Like the noble Lord, Lord Scriven, I do not support the other amendments, which would get rid of these clauses entirely.

I had hoped not to have to put my name to that amendment, particularly as I hoped there would be a government amendment because of the clarification by the Family Division of the High Court during Committee on 9 June, in a case brought by Article 39, which was trying to make missing unaccompanied asylum-seeking children wards of court. It is interesting to note in that case that the lead submissions from the Government were not from my noble friend the Minister’s department but from the Department for Education, which holds the responsibility for the Children Act.

I have a simple question to my noble friend the Minister. As a Conservative, I believe it is important that every child has a parent. While the children are accommodated by the Home Office when they initially come into the country, who has parental responsibility? From my reading of the Bill—I am grateful to the noble and learned Baroness, Lady Butler-Sloss—we are changing a fundamental principle in our law and children may not have a parent, without due consideration of the consequences. It might just be for two days, two weeks or four weeks, but it is really important.

I can foresee, even on my cursory glance at this, at least three cracks in that foundation. First, if a child who is being accommodated in these hotels or hostels ends up at A&E and needs an operation but there is no parent to consent to that surgery—so to do that surgery would be an assault—then precious NHS time would be spent contacting the Home Office and not caring for patients.

The second healthcare situation is that children can be detained under the Mental Health Act. That Act gives important powers, duties and safeguards to the statutory nearest relative—and there is a list of those. Again, if a child is under a care order, under the Mental Health Act the corporate parent is the nearest relative. If the child has no parent and is detained in a secure mental health unit, who will be the nearest relative? Again, precious NHS resources will be, in my view, ill-used.

The most worrying crack—which I hope I am wrong about; I remind noble Lords that I am not a criminal lawyer, and I have done my best when looking at this piece of legislation—is that, when child protection functions under Parts 4 and 5 of the Children Act, such as Section 31, are exercised, there is then a very important exemption for local authorities or public authorities from criminal liability under Section 7 of the corporate manslaughter Act 2007. I would be grateful to hear my noble friend the Minister’s view on that statute. It defines senior management. That perhaps includes the board, civil servants in the department, as well as Ministers and, potentially, the Secretary of State. Giving evidence to public inquiries and appearing before Select Committees is commonplace for civil servants; what is not commonplace is being called as a witness to a Crown Court trial for such a prosecution of the corporate body, the Home Office, which is included under Schedule 1 to the corporate manslaughter Act. If there were to be a change of Government next year, it might be the right honourable Member for Pontefract going to the trial, and it would not be good enough for her to say, “We had only been in office for two weeks before the child fell out of the hotel window”.

My Lords, I do not want to detain your Lordships for many minutes and will not do so, but I will speak in support of Amendment 87. It will probably not be pushed to a vote, but, if it were, it would help us to regain our self-respect as a nation that cares about the plight of unaccompanied migrant children.

When I spoke in Committee on 5 June, I highlighted the fact that 4,500 unaccompanied migrant children have been placed in Home Office-run hotels and not in the care of a local authority, as prescribed by Section 20 of the Children Act 1989. Some 200 of those children have gone missing. A whistleblower working at the hotel in Brighton said that he believed that they have just disappeared. Perhaps they were trafficked—who knows?—but they have not been found. Some of the children are as young as 10; they are put into hotels, unaccompanied and unsupervised, at the age of 10.

I pressed the Minister in Committee—as I did before and after—to explain which Act of Parliament allows the Government to place these children in the care of the Home Office and not local authorities. In his reply, he did not directly answer my question, but what he said is important:

“The present position will change when this Bill passes”.—[Official Report, 5/6/23; col. 1174.]

I am not trying to put the Minister on the spot—he has enough woes trying to take through this awful piece of legislation—but, from his answer, I must deduce that the Government are acting unlawfully. They know that they are acting unlawfully and that they are not properly caring for these unaccompanied migrant children. All children arriving in this country should surely be afforded the rights under the Children Act 1989. Let us ask ourselves: who among us, if, God forbid, it was one of our children facing this perilous situation, would not want them to be properly cared for?

My Lords, I declare my interests as laid out in the register. I will speak to Amendment 89, and I am grateful to my noble friends from differing Benches—the noble Lords, Lord Coaker and Lord German, and the noble Baroness, Lady Helic—for their support. It is a damning indictment that an amendment of this nature is even required, as it proposes such a basic safeguard to ensure the well-being of unaccompanied children. It requires that, if a child is to be transferred from local authority child protection systems, a justification should be provided as to why it is in their best interests to be looked after by the Home Office rather than the local authority.

It is reasonable that councils should not be mandated to follow a child transfer direction, regardless of any safeguarding or protection concerns. If the Government are unwilling to accept this point, can the Minister say how they will enable the appropriate scrutiny of a decision to move a child out of the formal child protection system and ensure the highest level of safeguarding consideration? These questions deserve full and detailed answers, since the Bill does not set any standards, safeguards or protective obligations for the Home Office when providing accommodation for children. It is even more pertinent given the Home Office’s own record on accommodating unaccompanied children.

The Minister was pleased to share, during the passage of the Bill, that no children are currently accommodated in hotels, but let us not forget that this does not mean that all unaccompanied children are therefore in the care of local authorities. Up to April this year, 186 children remained missing, and it should keep us all up at night, including Ministers, when we think about whose care those children may now be under.

Regardless of the power that the Bill gives to the Government to accommodate children, two things remain true—both of which have already been explained well. First, the Children Act applies to all children, regardless of nationality, ethnicity or immigration status, and therefore any child under the care of the Home Office should have access to the same level of care and protection as any other child in need. Secondly, as recent legal judgments have shown, the Home Office does not have the expertise, knowledge or experience to look after children.

Therefore, it is only right and just that the power to remove a child from the well-established care system should be exercised only when a child’s well-being will be served by doing so—I suspect that that would be very rare. I share the fear of the Children’s Commissioner that accommodating children outside of foster families or children’s homes will be harmful and unsafe; we have no evidence to the contrary. Fundamentally, the care of children is, first and foremost, not an immigration matter, and safeguarding cannot be allowed to be a casualty in pursuit of the objectives of the Bill. Thus, I also support Amendment 87, for all the reasons already laid out. Neither amendment should be regarded as controversial, as, frankly, a child’s life, security and future are too important for them to become collateral damage. Therefore, I support Amendment 87 and intend to test the opinion of the House on Amendment 89.

My Lords, I support most strongly the remarks of my noble and learned friend Lady Butler-Sloss and the other powerful comments already made from the Conservative Benches, the Bishops’ Benches and elsewhere.

My amendments propose that Clauses 15 and 16 should left out of the Bill in their entirety. These clauses, for the first time, provide the legal power for a central government department to take responsibility for extremely vulnerable unaccompanied children and to provide so-called care, protection and support, both while they are children and as adult care leavers.

I understand that the Home Office has recently been housing unaccompanied children in hotels, without the legal authority to do so. But, according to the Immigration Minister, Robert Jenrick MP, no unaccompanied young people are currently in hotels. The Home Office has recently reopened a hotel in Eastbourne, and another in Brighton and Hove, in anticipation of the Bill becoming law. The local authority in the second case is threatening legal action, and I anticipate that it will be successful.

Ofsted has described the housing of unaccompanied children in hotels as utterly unacceptable. The UN Committee on the Rights of the Child called for the urgent repeal of the provision in the Illegal Migration Bill, describing this practice as violating children’s rights under the Convention on the Rights of the Child and the refugee convention 1951. Seven organisations responsible for protecting children have written to us, arguing that they consider Clauses 15 and 16 to be such a danger to unaccompanied children, and to our child welfare system, that they must be removed from the Bill altogether. The Association of Directors of Adult Social Services makes the point that unaccompanied children seeking asylum are fleeing desperate situations; they are extremely vulnerable and should not be placed in hotels, where they are open to further exploitations and abuse.

Clauses 15 and 16 are ill conceived and discriminatory in principle. They give the Home Secretary wide powers to house unaccompanied children of any age in any type of accommodation for any length of time—housing a one year-old or 18 month-old in great big ex-Army barracks, or whatever. The clauses direct that a local authority stops looking after an individual child irrespective, it appears, of the child’s needs, characteristics, experiences and legal status. They legitimate and potentially make lawful arrangements that hundreds of non-governmental organisations have contended are unlawful for nearly two years.

I know that Amendments 87 and 89 might help a little. However, bearing in mind the powerful comments from his own Bench from the noble Baroness, Lady Berridge, and from the right reverend Prelate the Bishop of Durham and from other parts of this House, I appeal to the Minister to seek within himself his humanity and to withdraw Clauses 15 and 16 from the Bill.

My Lords, I do not support Amendment 87. It would undermine the purpose of the measure to prevent and deter illegal and unsafe routes. It would require that all children who enter this country, and are subject to Section 3, be afforded the same rights as afforded to children under the Children Act 1989, as noble Lords have heard from the noble Lord, Lord Scriven. That Act includes that the child’s wishes and best interests are taken into account. However, that could undermine Clause 3, which gives the Secretary of State discretionary powers to remove unaccompanied children who enter illegally, albeit with exceptions. Clause 3 is also concerned with returning children to their parents, and there is provision for that where it is safe to do so.

Moreover, Amendment 87 could and would give families across the world an incentive to try to get their children into this country. For the cost of a modest traffickers’ fee, they would be more likely to make a dreadful gamble to get their children here to be educated, housed, looked after and supported at a cost to our taxpayers. Is there any reason—and I think it is important to ask this question—why taxpayers should be asked to pay sums for those who break the law in this way when there are safe and legal routes for entering this country? This amendment would provide an incentive to send children by these very dangerous routes. It is the very opposite of the purpose of the Bill, which is to deter people from using unsafe and illegal routes.

Noble Lords may not like what I say, but I cannot put from my mind the dangers occurring to children and women and even men on these unsafe routes. Only two weeks ago, we heard of the trawler which left the Libyan port of Tobruk and sank off the Greek coast. According to reports, over 700 people were on that boat. The women and children were in the hold: not one of them survived.

It is incumbent on this House to avoid giving any possible incentive to people traffickers to continue their unlawful and fatal trade. Anything we can do to stop it, we should do. This scheme is the first practical scheme that I have heard proposed which will deter people trafficking and the smuggling of children into the country by that route. The impact assessment has shown that the Australian scheme worked as a deterrent. For these reasons, I would prefer a practical scheme which deterred the use of these dangerous routes. Your Lordships should give the Bill a chance if we want to stop these fatal crossings.

I do not agree with the noble Baroness, Lady Lawlor. The amendments before us do not seek to punish children who are in a situation that many of them have no choice in. We have a duty to them as a humanitarian country with proud traditions. We have a duty to protect children, and that is what we seek to do. We need to remember that we are talking about children here. Whatever we do, I do not want to punish children for however they may have arrived here.

We fully support the amendments of the noble Lords who have spoken in this debate, particularly Amendments 87 and 89. Amendment 89, of course, is in the name of the right reverend Prelate the Bishop of Durham and it is one to which I have added my name, along with the noble Baroness, Lady Helic, and the noble Lord, Lord German.

I do not want to speak for long, but the point that was made is significant, especially when one looks at Clause 16. The Secretary of State can decide on the transfer date that an unaccompanied child be moved away from the local authority. The point made by the noble and learned Baroness, Lady Butler-Sloss, goes right to the heart of the issue: the local authority acts as the parent. If you move a child away from that situation, you are effectively making them an orphan. There is nobody responsible for them by law. Is that really what we want? Is that really what we are trying to achieve? We all agree that there is a problem, but we should not make children pay the price of trying to resolve it. That is not the right way of going about it.

As the right reverend Prelate the Bishop of Durham pointed out, the Secretary of State can direct the local authority to cease providing accommodation. There is no discussion between the Secretary of State and the local authority to view what is in the best interests of the child. The Secretary of State can compel the local authority—as the parent—to cease providing accommodation for a child, which will then take them into Home Office-provided accommodation. Within that Home Office accommodation, as the right reverend Prelate pointed out, we still have 186 children lost. They are missing. We have no idea where they are. I say it time and again but if the Home Office was a human being and a parent, that human being—the parent known as the Home Office—would be prosecuted. We would not tolerate losing children. We would not say that we are doing all we can. We would ask what on earth is happening that children are being lost. The local authority provides the best solution to looking after unaccompanied children in these circumstances.

The Home Office can demand that of the local authority with no justification. It can demand it with no idea of where these children are going to go and with no idea of the standards to be provided for them. They are simply to be housed in Home Office accommodation or wherever. That is not acceptable to the people of this country, irrespective of the fact that they understand there is a problem with the boats, and irrespective of the fact they understand that something needs to be done. They do not want is to see migrant children, or any child, having to pay the price for that. The Government need to sort it out in another way and ensure that all children in this country are properly protected.

My Lords, Amendment 87 put forward by the noble Lord, Lord Scriven, seeks to ensure that all children covered by the duty in Clause 2 have the protections afforded to children under the Children Act 1989. No one can disagree with the sentiment behind his amendment. However, in a sense, it misses its intended target, as the 1989 Act does not impose obligations, duties or responsibilities on the Secretary of State but rather on local authorities. There is nothing in this Bill that alters those duties or responsibilities, particularly as regards an unaccompanied child—a point well made by my noble friend Lady Berridge.

That said, Section 55 of the Borders, Citizenship and Immigration Act 2009 already requires that the Home Secretary carry out her functions in a way that takes into account the need to safeguard and promote the welfare of children in the United Kingdom, and I can assure noble Lords that this will continue to be the case.

Subsection (3) of the proposed new clause brings me to the provisions in Clauses 15 and 16 which were referred to by the noble Baroness, Lady Meacher. She seeks to remove those clauses; the right reverend Prelate the Bishop of Durham seeks to amend them with Amendments 88A, 89 and 89A.

Clause 15 makes provision for the accommodation of unaccompanied migrant children in scope of this Bill. This clause confers on the Secretary of State a power to provide, or to arrange for the provision of, accommodation and other support to unaccompanied migrant children in England. While the clause contains no time limit on how long any child spends in Home Office accommodation, as I have said previously on a number of occasions, our clear intention is that their stay be a temporary one until they transfer to a local authority for a permanent placement. This is not detained accommodation, and the support that will be provided will be appropriate to the needs of these young people during their short stay.

The problem is Clause 16, because the Home Office can remove the child from the otherwise permanent care of the local authority. How on earth is what the Minister is saying compatible with Clause 16?

It is obviously necessary that the Bill contain a power to allow for such a transfer, in order to ensure the appropriate removal of a child on attaining their majority, for example, or for any other purpose that might be necessary to ensure implementation of the scheme. The Government expect local authorities to meet their statutory obligations to unaccompanied children from the date of their arrival in the United Kingdom, and that the Home Office step in only sparingly and temporarily. Indeed, an unaccompanied child in scope of the scheme may enter local authority care without first being accommodated by the Home Office under this power. However, it is important that there be legal certainty about the ability of the Home Office to step in to ensure that an unaccompanied child arriving on the south coast can immediately be accommodated and supported.

As we have just discussed, Clause 16 then makes provision for the transfer of an unaccompanied migrant child from Home Office accommodation to a local authority in England. The clause provides a mechanism for the Secretary of State to decide that a child is to cease residing in Home Office accommodation and to then direct a local authority in England to provide accommodation to the child, under Section 20 of the Children Act, after five working days of the direction being made. As was the subject of the intervention a moment ago, the Secretary of State may also direct a local authority in England to cease accommodating an unaccompanied child and to transfer the child into accommodation provided by the Home Office after five working days of the direction being made. This power is the subject of the right reverend Prelate’s amendment.

I suggest, with respect to the right reverend Prelate, that this amendment is unnecessary given that protections are already in statute in Section 55 of the 2009 Act, which I have already referred to. The Secretary of State is required to have regard to the interests of children as a primary factor in immigration decisions affecting them. Let me be clear: best interests are not the only factor that must be considered; other relevant factors, such as close consideration of individual circumstances, must be taken into account. In making decisions and devising policy guidance under this Bill, the Home Office will continue to apply the Section 55 duty.

We are working through the operational processes relating to unaccompanied children and the circumstances in which we will use this power. This includes engaging with stakeholders to understand the concerns they might have about the power to transfer unaccompanied children into Home Office accommodation. We are working very closely with the Department for Education, as we want to deliver the objectives of the Bill while being mindful of the needs of children and young people. I hope this provides some reassurance to noble Lords.

My Lords, I refer my noble friend back to his point about legal certainty and the very narrow question I asked: is it correct that while the Home Office is accommodating these children before they go into local authority accommodation, they actually have no parent?

It is clearly right that in the situation that arose with the rush of people crossing the channel—which gave rise to this legislation—consideration had to be given to the legislative arrangements. The situation in law is clear and is as my noble friend set out. The Home Office is able, in extreme circumstances, to exercise this power on behalf of local authorities. As I say, the purpose and intention of these provisions is to look after children only for as short a time as possible before transferring them to the care of local authorities. I want to stress that the Home Office is having to accommodate unaccompanied children out of necessity.

My Lords, can the Minister give the House an assurance that he will put in the Bill that these children would not be in the so-called care of the Home Office for more than, let us say, 48 hours —some very limited period of time? If that is the Government’s intention, can the Minister assure the House that this will be in the Bill and that it really will be for a very short time?

No; I am afraid I cannot provide that assurance, and the reason for that is obvious. We are dealing with a situation in which we have thousands of people crossing the channel, and we cannot tie the hands of the Home Office in dealing with this great problem that we all face. I say again that we are having to accommodate unaccompanied children out of necessity. My noble friend Lady Lawlor highlighted in her brave speech the Hobson’s choice that we face here. These children will not all immediately enter the care system on arrival in a small boat, simply because the Home Office does not have the powers set out in Clauses 15 and 16. It is right that we take steps to ensure that there is clarity, and I suggest to noble Lords that it is in the best interests of these children that we put in place these measures, which recognise the reality of the current situation.

On the basis of my explanation and the assurances I have given, I hope that the noble Lord, Lord Scriven, will be content to withdraw his amendment, and if the right reverend Prelate the Bishop of Durham is minded to test the opinion of the House on Amendment 89, I invite noble Lords to reject that amendment.

My Lords, I am sure that, like everyone who has listened to this debate, I am now more confused than when it started. Clarity has not been brought. I thank all noble Lords for taking part in the debate, including the noble Baroness, Lady Lawlor, who I completely disagree with; she really does not understand the concept of what safeguarding and the rights of the child are once the child is in the UK. That is the issue, and there is no evidence in any impact assessment or anything that the Government have done that says that protecting and safeguarding children under the Children Act 1989 is a pull factor. But I welcome the noble Baroness’s intervention and understand that she starts from a position that is, I am sure, very different from that of nearly everybody else in your Lordships’ House.

It is my wish to test the mind of the House because the Minister has not answered some of the questions, and my concerns remain. Some of us have not seen a copy of the letter that was circulated to some noble Lords, so can the Minister undertake to ensure that it gets circulated to those who have been involved in these debates? We really need the local authority to have the say in this, so I beg leave to test the mind of the House.

My Lords, I wish to test the opinion of the House.

My Lords, Amendment 101 pre-empts Amendment 102.

My Lords, this amendment was tabled by my noble friend Lord Morrow, who sends his apologies. He is unable to attend today and has asked me to move it in his place. I beg to move.

My Lords, Amendment 104 pre-empts Amendment 105.

My Lords, my noble friend Lady Ludford is unable to be in her place today. I am introducing her Amendments 114 and 116 in this group, which remove children from the effects of the loss of citizenship pathways under the Bill. On these Benches we welcome the government amendments removing the original Clause 30(4) from the Bill, which would have barred British citizenship children born in the UK after 7 March 2023 if a parent had entered the UK illegally. We also welcome the amendment that removes bars to citizenship under the British Nationality Act 1981—the settled route and the 10-year route. I thank the Minister for the helpful meeting regarding British national (overseas) citizens. I look forward to hearing from him, perhaps on Wednesday, that BNO passport holders will get clearer and correct information from immigration officials in the future.

However, despite the Government’s amendments, there are still key risks for children who the Government admit will rarely qualify for citizenship under Clause 2. That is why Amendments 114 and 116 remove children from the loss of routes to UK citizenship. The fundamental problem that needs to be resolved here is that, as we discussed in the debate on the previous group, as children arrive in the UK they are put under the responsibility of a local authority. As minors, our state decrees that these children cannot make decisions for themselves, so the logic must also be that when they were brought into the UK they were not deemed to have the capacity to make that decision. We noted that the Minister said that there is a potential safeguard under Clause 35 if a decision were to breach the UK’s obligation under the ECHR, but it was just reported again, on Saturday in the i newspaper, that the Government want to remove the UK from the ECHR.

The Government’s intention to prevent these children obtaining British citizenship would close off all the major routes to citizenship if their parents were irregular entrants: the discretionary route, the settled route and the 10-year route. On these Benches we believe that children who are deemed by the state not to be able to make decisions about themselves should not be penalised by the Bill, particularly because they are in the care of the state. On these grounds, I beg to move Amendment 114.

My Lords, I will speak to Amendments 115 and 117 to 125 in this group, all standing in my name. They have a similar approach to that set out by the noble Baroness, Lady Brinton, but the focus is rather different, as I shall explain.

I support the general thrust of the Bill; the argument for the Bill is that it creates a number of deterrents to people arriving in this country illegally. The principal deterrent is of course that of immediate, or at least rapid, removal to another country. But the Bill goes further than that and also seeks to deprive those who have fallen foul of the tests in Clause 2 of their subsequent right to apply for naturalisation as a British subject or, more crucially and to the point of my amendments, their right to apply for registration as a British subject at any point in the future.

Noble Lords are well aware that there is a great distinction between naturalisation and registration. Naturalisation is a concession by the state to those who are not British, to allow them to become British. It is perfectly natural that there should be conditions attached to that, and those conditions very often can and do include good behaviour conditions—such as, perhaps, if the Bill passes, not having previously arrived illegally in a small boat.

My Lords, I am grateful to the noble Lord, Lord Moylan, for bringing back these amendments, but I am disappointed that he had to do so given the strong case that he made for them in Committee. They are important from the perspective of both citizenship and the rights of children. I once again declare my interest as a patron of the Project for the Registration of Children as British Citizens.

From reading the exchanges in Committee, it seemed to me that the Minister was not really listening to the arguments put but simply responded by trying to justify what, in our view, is unjustifiable. Once again, children are the main victims, as highlighted by the noble Baroness, Lady Brinton, whose amendments I also support. As the noble Lord, Lord Moylan, said, it was welcome that the Minister, when challenged on this point, did not impute any culpability to children. However, the fact remains that children are being punished for the actions of a parent, which is contrary to the refugee and other conventions, as has been pointed out by the UNHCR, JCHR and the Northern Ireland Human Rights Commission, among others. This is yet another instance of where we need to see the child rights impact assessment yet, despite the Government Chief Whip promising it for today “if possible”, there is still no sign of it.

It is not an indicator of strength to refuse to countenance any amendments in pursuit of the mythical god of deterrence, regardless of the force of the argument. The main losers are, again, children, whose best interests are being ignored and trampled on. I hope the Minister will think again today.

My Lords, as we have heard, these amendments relate to the bans on re-entry, settlement and citizenship which are a key part of the deterrent effect of the Bill and send an important message that, if you enter the country illegally, you will not be able to build a life here.

Amendments 114 and 116, in the name of the noble Baroness, Lady Ludford, and spoken to so eloquently by the noble Baroness, Lady Brinton, seek to remove from the scope of the bans those who meet the duty in Clause 2 but who are under the age of 18.

As the Bill is currently constructed, anyone, including children, who meets the criteria of the duty also becomes subject to permanent bans on obtaining leave to remain, settlement, citizenship and re-entry. The application of the bans is irrespective of whether the child was complicit in the act of entering illegally. I hope that addresses the points noble Lords have raised in that regard.

The inclusion of children is to ensure that there is no perverse incentive for parents or others to put children in harm’s way by forcing them on to small boats or other dangerous methods in an attempt to gain entry to the UK. We want to send a clear message that children cannot be exploited and forced into making dangerous attempts to gain entry into the UK for the purpose of starting a new life here. Instead, the only way to come to the UK for protection will be through safe and legal routes. This will take the power out of the hands of criminal gangs and protect vulnerable people, including children.

I thank the noble Lord for allowing me to intervene. Could he update the House, in light of what my noble friend Lady Lister said, on where we are with the child rights impact assessment?

I was saving that until the end of my remarks, which I will do, if I may.

Under our proposals, anyone who has entered illegally will be removed, so it is unlikely that they will qualify for settlement or citizenship on the basis of long and lawful residence. I therefore take my noble friend Lord Moylan’s point, in that regard. However, the powers in the Bill provide the Secretary of State with the discretion to waive the bans in specific circumstances, as we discussed in Committee. In practice, these powers mean that the Secretary of State retains the discretion to waive the bans on obtaining settlement as well as to consider an application for citizenship where they consider that failure to do so would result in a breach of the United Kingdom’s obligations under the ECHR.

The Bill also provides additional discretionary powers to waive the bans on limited leave to remain and re-entry. The Secretary of State may waive the ban on re-entry if they consider that other exceptional circumstances make it appropriate to allow someone to return; these would include to ensure compliance with international agreements to which the UK is a party. Similarly, in the limited leave to remain area, there is a power allowing the Secretary of State to waive the ban where it is appropriate to ensure compliance with the ECHR or other international agreements to which the UK is a party, as well as where an individual who is seeking to remain in the UK has been allowed to return on the basis of other exceptional circumstances.

I am grateful to my noble friend Lord Moylan for again raising these interesting issues in the amendments he has tabled. They seek to change provisions in Clauses 30 to 36 so that the citizenship ban applies only to naturalisation and not registration routes. I am grateful to my noble friend for meeting me to talk about this. We had a useful discussion, although we did not quite reach agreement on these topics.

Our view is that registration is not just about recognising a person’s claim to British citizenship that they do not have the documents to demonstrate. Instead, a number of the registration routes within the British Nationality Act have requirements based on residence and many have good character requirements. It is not a case, as my noble friend has suggested, of merely acknowledging a status that a person already holds, but an opportunity for a person to demonstrate their suitability to become British.

My Lords, the Government Chief Whip promised that it would be published well before Report concludes. Does the Minister really think that tomorrow is well before Report concludes on Wednesday?

Yes.

That is clearly not the case. I accept that the Government Chief Whip did not exactly say that it would be put before your Lordships’ House today, but the expectation was that it would be. We have reached 7 pm; we are debating children’s issues and have done so all the way through Report, and we have not got the children’s impact assessment. It is utterly unacceptable for the Government to run a contentious Bill in this way. All the impact assessments were late, by and large. This is particularly late; it is no way to carry on. I can understand my noble friend Lady Lister’s upset and anger at this, and my noble friend Lord Kennedy raised it last week. The Minister knows, frankly, the anger and disappointment there is about this. I do not know what else to say, other than: what does “tomorrow” mean? Is it first thing tomorrow morning, or will it turn up at 8 or 9 pm, just before Report finishes? Perhaps the Minister can clarify what tomorrow means, and register the deep anger and upset in this House.