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Illegal Migration Bill

Volume 831: debated on Monday 17 July 2023

Commons Reasons

Motion A

Moved by

That this House do not insist on its Amendments 1B, 7B and 90D to which the Commons have disagreed for their Reason 90E.

90E: Because Amendment 1B is unnecessary, as the courts should have regard to the UK’s international legal obligations in interpreting legislation; because Amendment 7B is inappropriate because the Bill already provides for two classes of suspensive claims with a right of appeal to the Upper Tribunal, so an application for judicial review should not provide an additional route for suspending removal; and because Amendment 90D is contrary to the purpose of the Bill to prevent and deter unlawful migration.

My Lords, before I get into the detail of the amendments, it is worth reiterating why we are here again debating this Bill late at night. The United Kingdom has a proud history of providing protection to those who genuinely need it through our safe and legal routes. The United Kingdom is one of the largest recipients of UNHCR-referred refugees globally, having resettled 28,000 through UNHCR resettlement schemes between 2015 and 2022. This places the United Kingdom second only to Sweden in Europe.

However, the volume of illegal small boat arrivals has overwhelmed our asylum system. We have a duty to house those arriving illegally, but that is now costing £6 million a day and £3.6 billion a year. With over 45,000 people making dangerous channel crossings last year, this is simply no longer sustainable. If people know there is no way for them to stay in the UK, they will not risk their lives and pay criminals thousands of pounds to arrive here illegally. It is therefore only right that we stop the boats and break the business model of the criminal gangs exploiting vulnerable people, ultimately enabling the Government to have greater capacity to provide a safe haven for those at risk of war and persecution.

We have spent many an hour debating these issues. That is, of course, as it should be, but your Lordships will have also seen that the elected House has today reconsidered amendments a second time, and by a significant majority disagreed with the Lords amendments. I suggest we therefore respect the will of the elected House and the British people by passing this Bill.

I turn to the amendments. As I have set out throughout the passage of the Bill, and as the Immigration Minister has set out in the other place, the Government take their international obligations, including under the European Convention on Human Rights, very seriously. There is nothing in the Bill that requires any act or omission that conflicts with the United Kingdom’s international obligations.

In her speech last week, the noble Baroness, Lady Chakrabarti, in referring to her revised amendment, talked of “softening its requirements”, but the words in Amendment 1B,

“and any acts and omissions made as a result”,

mean that it was not simply an interpretive clause. The effect of those words would be that these conventions would, in effect, be incorporated into our domestic law. A Lords amendment to a purported interpretation provision is not the right place to effect something so constitutionally significant.

Amendment 90F seeks to address this concern by substituting new wording, namely:

“In interpreting this Act, regard shall be given to the United Kingdom’s obligations under”

the various specified conventions. I suggest that the revised wording still presents the same challenges I outlined earlier. Either the new clause has substantive effect or it serves no purpose, and the noble Baroness’s intent is clearly the former.

On Amendment 90H, the Bill creates a bespoke suspensive claim and appeals process which will allow illegal migrants to make a suspensive claim if they consider that a mistake has been made in applying the duty, or if they would face a risk of serious and irreversible harm if removed to a third country. These are the only claims that should suspend removal, and limiting the ability of any other claims to prevent removal is necessary to deliver the essence of the Bill, ensuring that illegal entrants are promptly removed following the determination of any suspensive claim and appeal.

The Commons has now considered and rejected amendments similar to this on three occasions. It is time to restore the original Clause 1 to the Bill, with its clear statement of purpose: to avoid and deter unlawful migration, and to create certainty. It is time to respect the clearly expressed view of the elected House by endorsing Motion A. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

90F: Leave out Clause 1 and insert the following new clause—

“IntroductionIn interpreting this Act, regard shall be given to the United Kingdom’s obligations under—(a) the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms;(b) the 1951 UN Convention relating to the Status of Refugees including the Protocol to that Convention;(c) the 1954 and 1961 UN Conventions on the Reduction of Statelessness;(d) the 1989 UN Convention on the Rights of the Child;(e) the 2005 Council of Europe Convention on Action against Trafficking Human Beings.”

90G: Clause 4, page 6, line 7, at end insert “if the court seized of the application refuses permission or interim relief or dismisses the application.”

90H: Clause 52, page 54, line 3, at end insert “without giving reasonable notice to the Secretary of State so as to allow representations as to why, notwithstanding ongoing proceedings as to the legality of a decision to remove the person, they should nonetheless be removed.””

My Lords, I remind noble Lords that this Bill was not a manifesto commitment at the last election; it is rather the extended version of a populist slogan for the upcoming one. That distinction is even more constitutionally significant when the Executive propose to expunge the age-old common law jurisdiction of His Majesty’s courts to issue interim relief in expulsion cases, the judicial practice of considering international obligations, and the Human Rights Act 1998 duty to interpret legislation compatibly with convention rights and freedoms where possible.

Noble Lords, and in particular the noble and learned Lords, Lord Hope and Lord Etherton, rejected the Government’s suggestion that the previous amendment to Clause 1 offended our legal traditions. None the less, we have softened it still further, removing references to “acts and omissions” and intended compliance only in the spirit of dialogue with the other place. Now, it merely requires that those interpreting this measure give regard to the human rights treaties mentioned. Without this amendment, an eventual illegal migration Act 2023 could become effectively exempt from the European Convention on Human Rights under domestic law as soon as its provisions are brought into force.

Again, in attempted dialogue with the other place we have clarified the amendment to Clause 4 to ensure that the duty to remove—so central to the Government’s scheme—is revived the moment a first instance court dismisses an application unless permission to an appeal court is granted. Without this amendment, the duty to remove applicants would continue, even where our higher courts are still considering the safety of a third country such as Rwanda.

The amendment to Clause 52 has been tightened to provide that courts must not only attempt but ensure that they give reasonable opportunity to the Secretary of State to object before granting interim injunctions preventing removal. Without this amendment, no British court would retain its common law power to prevent removal, despite grave risk to a person subject to ongoing legal proceedings. Noble Lords will remember that the Government have already taken the power to ignore Strasbourg interim relief under Clause 53.

In summary, without these amendments, the Government could argue a power, or even a duty, to remove new arrivals—potentially even as we rest this summer—before the Supreme Court hears the Rwanda test case in relation to past arrivals this autumn. That is what is at stake: one of the gravest executive power grabs and abrogations of the rule of law in living memory. That is why the, yes, unelected but more independent Chamber should exceptionally stand firm to protect the constitutional role of our courts and the rule of law.

In a state of sadness and some disbelief that things have come to this in our beloved land of rights advancement, from Magna Carta to the post-war settlement, I beg to move.

I would just like to say, if I may, that I am surprised that the Government do not like this amendment. Quite honestly, it strengthens the Bill when it comes to legal procedure, and they would have fewer legal challenges to all their cases if it goes through. They should welcome it, particularly if there is no conflict with international law, as the Minister told us earlier, in order to restore certainty. The Government should support this amendment.

My Lords, I am speaking for these Benches.

The noble Baroness, Lady Chakrabarti, has eloquently explained why these amendments are necessary to uphold key rule of law and constitutional principles. Quite honestly, in the Minister’s argument about Amendment 90F, on regard being had to international obligations, he keeps regurgitating this idea of backdoor incorporation. That was thoroughly demolished by the noble and learned Lord, Lord Hope, last week—let us remember that he was Deputy President of the Supreme Court—when he said:

“This a pure interpretation provision, and it is entirely consistent with the way the courts approach these various conventions … I support the amendment because it is entirely orthodox and consistent with principle”.—[Official Report, 12/7/23; col. 1817.]

That was about the previous version, and as the noble Baroness explained, the new version is even more about reinforcing the interpretation. Quite honestly, the Minister’s argument holds no water.

Since the Government have been unable to vouch for the compatibility of the Bill with the European Convention on Human Rights because it is too novel and untested to evaluate, we need this safeguard in the Bill to ensure that the Government are kept to the straight and narrow.

The other points about the jurisdiction of the courts are straightforward rule of law issues. Is it the courts or the Executive who will have the final say on what happens to people, whether they are deported, detained or safe? It should be the courts.

My Lords, I support my noble friend Lady Chakrabarti’s Motion A1. We believe it to be a very important Motion.

The only comment I will make in response to the Minister’s opening remarks on the passage of the Bill in the other place is this. We have always said that the Government have a right to get their legislation, but this place also has a right to put forward amendments and to ask for revisions and consideration. It does not help us to believe that this place receives proper consideration of its amendments when the Minister in the other place announced at the end of last week, even before proper consideration, that no concessions would be made with respect to what this House is proposing. That is not the way for business to be conducted. This place has a proper constitutional role to play, which includes sometimes saying to the Government that they should think again, and even sometimes saying it twice.

My Lords, I simply cannot accept the proposition advanced by the noble Baroness, Lady Chakrabarti. As the House will remember from the last occasion, a court always has regard, if possible, to the international treaties binding the United Kingdom, as was made clear by Lord Dyson in the Supreme Court in the Assange case.

The noble Baroness’s amendment is simply unnecessary, and, in addition, it would have the effect of changing the constitutional relationship of our law and international law. I am afraid, therefore, that I cannot accept her proposed Motion. I invite noble Lords to vote against it in the event that it is not withdrawn.

Motion A agreed.

Motion B

Moved by

That this House do not insist on its Amendment 9B, to which the Commons have disagreed for their Reason 9C.

9C: Because the Amendment is contrary to the purpose of the Bill to prevent and deter unlawful migration.

My Lords, I beg to move Motion B that this House do not insist on its Amendment 9B to which the Commons have disagreed for their Reason 9C. I will also speak to Motions C, D and E.

Amendment 9B was rejected by the Commons for the second time earlier today by an increased majority. The elected House agrees that declaring asylum and certain human rights claims to be inadmissible is a core part of the scheme provided for in the Bill which must not be reversed. It is not a proportionate or considered amendment and simply creates a perverse incentive whereby people exploit every opportunity, including through protracted legal challenges facilitated by the early amendments, to reach the six-month point.

I note Amendment 9D has an additional provision, but this does not substantially change the effect of the earlier version of this amendment. Having debated this Bill for many hours, we will all be familiar with one of the key objectives of it—to remove illegal entrants in days and weeks, not months or years. That should be our start and end point. As such, this amendment is not only wrong but it is not needed.

I turn to Amendment 23B. The noble and learned Lord, Lord Etherton, suggested last week that the Government’s case against this amendment was simply to provide an assurance that,

“this will all come out in the wash”.—[Official Report, 12/7/23; col. 1826.]

There is rather more to it than that. The legislation is clear and affords the necessary protection for LGBT people fearful of persecution if they are removed to a particular country.

Throughout the debates in this House, I have been clear that it is simply not the case that anyone who meets the conditions in Clause 2 can be sent to any of the countries listed in Schedule 1 without further ado. The schedule needs to be read with the provisions in Clause 5, which determine whether a person can be returned to their home country, and with the provisions later in the Bill which enable a person to make a serious harm suspensive claim where they are being removed to a third country.

As to the noble and learned Lord’s point about Rwanda and the ongoing litigation, I point him to the terms of the Commons reason, which states that the amendment is not necessary

“because removal of any person to any country will only be done where the arrangements to do this are lawful”.

The Bill therefore already contains sufficient safeguards. This was recognised by the Commons when they voted for a second time to reject this amendment.

The noble and learned Lord, Lord Etherton, and the noble Lord, Lord Cashman, are doughty defenders of LGBT rights, and I entirely understand their desire to get clarity and certainty on this issue. I believe that the Bill provides the necessary clarity, and on that basis, and in view of the further vote by the Commons to disagree with the amendment, I hope that the noble and learned Lord and the noble Lord will now be content to support Motion C.

The detention powers in the Bill are fundamental to achieving its objectives. We need a robust scheme which broadly applies to all and does not allow the system to be gamed. The Bill is designed to be operated both quickly and fairly, and our aim is to ensure that people are not held in detention for longer than is absolutely necessary to effect their removal from the UK.

With regard to Amendment 33B and the detention of families for no more than 96 hours, or the new Amendment 33D, which sets a time limit of 120 hours, I put it to the right reverend Prelate the Bishop of Bristol that these amendments risk creating a significant loophole in the system. We will see criminal gangs putting together fake family groups, more adults seeking to pass themselves off as children, and genuinely unaccompanied children being put at risk.

On Amendments 36C and 36D, I remind noble Lords that unaccompanied children are not subject to the duty to remove. The power to remove them in Clause 3 will be exercised only in limited circumstances. Therefore, for the most part, unaccompanied children will not be detained under the provisions of the Bill but will instead be quickly transferred to local authority accommodation.

Where an unaccompanied child is detained, this will be for the shortest possible time, in appropriate detention facilities and with relevant support provisions in place. Such a person will be detained in age-appropriate accommodation, as the law already provides. As I informed the House previously, this is already set out in the Detention Centre Rules 2001.

The elected House has now on three occasions endorsed the Government’s positions on the detention powers in the Bill. Indeed, the votes earlier today delivered increased majorities for the Government’s position. Your Lordships’ House should be under no illusion that the position would change if new Amendments 36E and 36F, which only marginally change the earlier amendments, were returned to the other place. I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by

9D: Clause 4, page 6, line 13, leave out “cannot be considered under the immigration rules” and insert “must be considered under the immigration rules if the person who made the claim has not been removed from the United Kingdom within six months of the day the claim is deemed inadmissible, subject to subsections (3B) and (3C).

(3A) From the point at which the provisions of subsection (3) apply to a person, no other provision made by or by virtue of this Act applies to that person.(3B) For the purpose of calculating the period of six months under subsection (3), any period during which the person cannot be removed by virtue of section 46 (suspensive claims: duty to remove) is to be disregarded.(3C) Subsection (3) does not apply if the reason that the person has not been removed from the United Kingdom can be attributed to the actions of that person.””

My Lords, when the House last debated this issue, the noble Lord, Lord German, stressed the risk to the public purse as thousands are locked up while the search goes on for further Rwandas to send them to. I will not repeat his arguments. The House found them convincing and supported his Motion by a majority of 61; nor need I remind the House that neither my Motion nor the Motion tabled by the noble Lord, Lord German, asks that those locked up for over six months be granted asylum. We ask simply that their cases be heard, as the refugee convention requires. Nothing in the Motion pre-judges the asylum adjudication procedure. It simply rules out the possibility—maybe the probability—of limbo, of extended inadmissibility gagged and incarcerated behind barbed wire.

I will make only three points, two new and one sadly familiar. First, the Minister, in arguing against the Motion moved by the noble Lord, Lord German, advanced only one argument—which he made again tonight. He said that it would simply encourage people to game the system, drawing things out to reach the six-month cut-off date. I suspect that the threat of being sent to Rwanda might be sufficient reason to seek a delay. However, in any case, the Minister’s point is met in the new version of the amendment. With all due respect to him, the change is substantive. The final subsection, proposed new subsection (3C), is new and means that nothing that a detainee does can advance the date on which the Government would have to countenance and begin to consider his application for asylum. Gaming the system would not be possible. If the Government’s concern was real, their objection is really met.

Secondly, the reason that the other place gave tonight for rejecting the amendment tabled by the noble Lord, Lord German, and so many other amendments, was that it is contrary to the purpose of the Bill to prevent and deter unlawful migration. However, willing the end does not and cannot mean willing all and every possible means. Capital punishment might be an effective deterrent, as might tarring and feathering or hanging, drawing and quartering. Willing the end does not absolve Parliament from discriminating among possible means, distinguishing the acceptable from the unacceptable. Sine die incarceration, case unheard, surely falls on the wrong side of the line.

My third and final point is that the underlying issue here is simple and sadly familiar. Our debate has not been just about conventions and commitments. It has been about people, about common humanity. It is about whether the House and the country think that locking people up sine die is a fair and reasonable way to treat those fleeing oppression, famine and war—locking them up and denying them any chance to explain why they seek sanctuary here and what it is that they fear back home. Doing that was in no party’s election manifesto. The House has so far taken the view that it is not what the country should do. I hope that we shall maintain that view. I beg to move.

My Lords, I shall speak to Motion D1. I remind the House that this issue was raised at an earlier stage, either on Report or in ping-pong, by a Member of the Conservative Benches in this House. I also remind the House that how the law will be applied is not what the Minister says; it is what the law actually states. We are hearing from the Minister that in relation to unaccompanied children it will not be used very much, but that is absolutely not good enough. If the law allows unaccompanied children to be detained for well over 28 days—that is, unless the child gets to the tribunal, and how will the child know that he or she is to apply to the tribunal?—then under this law they could remain there indefinitely.

I have four points to make. First, there is a risk to the welfare of the child of this indefinite detention instead of the present 24-hour maximum—a very considerable increase. The Government talk about child-appropriate detention. I just wonder what that really means.

I am afraid that I have banged on to this House again and again about the Children Acts, but I am particularly concerned about the impact of the Children Acts on Home Office detention if the detention goes beyond just two or three days, because there is no parental responsibility. What happens, as a Conservative Peer said much earlier, if a child suffers a serious medical emergency? There is no one, particularly not in the Home Office, with the right to sign the consent form for a child. They would have to go to the court to get an emergency protection order for the child to be able to receive proper medical attention. It would be quite a good idea if the Home Office remembered that. I said it to it earlier, and so did the Conservative Peer, but it does not seem to have put that in its mind.

Secondly, I worry about the Department for Education. To what extent does it know the implications of the Bill? I get the impression that the members of the DfE in this House do not really have any knowledge of it.

Thirdly, there may be disputes between local authorities and the Home Office over a child being removed from local authority care under the Children Acts and taken into detention. What happens if there is a care order where a judge has ordered that a child should be living in a particular place under the care of a local authority? Is the Home Office really going to move the child where there has been a judicial order over where the child lives?

Fourthly, although I know this is not necessarily popular with many people, Article 5 of the human rights convention talks about detention. In due course I would like to test the opinion of the House.

My Lords, I shall speak to Motion E1. This Motion, as with Motion D1, concerns vulnerable children being deprived of their freedom—in this case, those accompanied children. I am disappointed that, regardless of the strength of opinion across this Chamber, the Government are still not proposing to set limits on the detention of children in the Bill, whether they are accompanied or unaccompanied. Despite the comments of the Minister about the possibility of fake families earlier in the debate, I wish to press the point.

My amendment, as originally tabled by the right reverend Prelate the Bishop of Manchester last week, seeks to address and bring forward provisions for children within families. It was the Prime Minister himself who stated that it is not the intention of the Bill to detain children. This amendment seeks to go some way towards ensuring that commitment for all children. It would ensure that for families with children, the children could be detained for no longer than 120 hours—five days—or for no longer than seven days, with ministerial approval. It presents a proportionate response to the possibility of unlimited detention of children that is a compromise on what is in the 2014 Act. Given that the Government intend to deport those meeting the conditions of Clause 2 swiftly, It would not hinder that objective.

Throughout the Bill’s passage, we have debated the debilitating effect and lifelong impact of detention on children, and I respectfully disagree with the Government that the high number of asylum arrivals requires such damaging impacts down the generations. Indeed, if the Government’s assurances on using detention powers for the shortest possible periods are to be believed, as we have heard earlier this evening, they will not fear having their powers subject to a degree of limitation when it comes to children—all children. I will want to press this Chamber to a resolution this evening.

My Lords, we on these Benches support all three amendments, Amendments B1, D1 and E1. The amendment of the noble Lord, Lord Kerr, on admissibility is very sensible, because it is in line with the Government’s expectations of the Bill. It is not a wrecking amendment. The Government say that the deterrent impact of the Bill will be sufficient to ensure that everyone being removed will be processed within six months—in fact, the Minister already said this evening that it will be days or weeks, not months. The amendment of the noble Lord, Lord Kerr, does not alter any of the intended deterrents, and any time spent on an appeal pauses the six months. So this amendment protects the indefinite commitment of taxpayers’ money to support people kept in limbo, and it must be the expectation that in their rejection of it, the Government expect people to be detained for six months or more—otherwise they would not be objecting to it.

The amendment of the noble and learned Baroness, Lady Butler-Sloss, is very worthy of support. This Government have taken a regressive step without justification and without evidence of it causing a pull factor—even from recent history since the current limits were introduced in 2014. Children should be treated as children first, not by their immigration status. We know enough about detention of children to know that it is not in the child’s best interest, whether they are on their own or with their family. That is why we also support the amendment from the right reverend Prelate the Bishop of Bristol on accompanied children. If we ought to have them, we need proper time limits in the Bill, not permission to make a bail application. This part of the Bill will be a stain on our reputation, and it is not the will of the British people—although people will say it is—to lock up children. We can control immigration without inflicting suffering on children.

My Lords, the noble and learned Lord, Lord Etherton, has asked me to give a short commentary. He did not put an amendment down, but he wanted me to say, first, that the Government have never denied that the specified countries in the Bill are unsafe for LGBT people, and that includes Rwanda. He also asked me to say that it is reasonable that there should be no removals to Rwanda so long as there is litigation in process, and that prohibition on removal in the case of countries facing a proposal of proceedings under Article 7 is right in principle and mirrors the existing provisions regarding return under Section 80A. He wanted me to make those points even though he has chosen not to table a further amendment.

We have heard all the movers of amendments give a full explanation of their amendments. The noble Lord, Lord Kerr, spoke about common humanity—I of course agree with that—and about trying to support people who will potentially be kept in limbo through this Bill. The noble and learned Baroness, Lady Butler-Sloss, gave four examples of why she will be moving her amendment. The one that resonated most with me was her second point about needing to get an emergency protection order for a medical intervention for a child. As a family magistrate, I occasionally do those orders. I find it really quite shocking that, even for relatively routine orders, the Home Office would have to go to court to get a medical intervention. She made other points as well but that is the one that particularly resonated with me.

The right reverend Prelate the Bishop of Bristol introduced her amendment about a time limit of 120 hours, or up to seven days when authorised by a Minister; we will support the right reverend Prelate should she choose to move to a vote.

My Lords, His Majesty’s Government cannot accept any of the proposed amendments. I shall deal first with the matter raised by the noble Lord, Lord Kerr, in relation to his Motion B1 and his amendment concerning a proposed subsection (3C) where subsection (3) would not apply

“if the reason that the person has not been removed from the United Kingdom can be attributed to the actions of that person”.

I suggest that that phrase would generate a tidal wave of litigation were this amendment to be accepted. It would make the statute wholly uncertain and, I suggest, open a very large loophole in the scheme of the Bill.

I turn to the points raised by the noble and learned Baroness, Lady Butler-Sloss, and the right reverend Prelate the Bishop of Bristol in relation to the provisions concerning the responsibility in respect of children. I can reassure both the noble and learned Baroness and the right reverend Prelate that we are working closely with DfE on the implementation of this Bill, but I am afraid that I cannot accept the other propositions that they advanced.

Finally, in response to the noble Lord, Lord German, it is not our intention to “lock up children”, as he put it, under this Bill. It is our intention to have the power to do so should that be necessary in very rare circumstances. For those reasons, I invite the House to reject these amendments in the event that they are not withdrawn.

The Minister said at the outset that Motion B1 contained no substantive change. He has now asserted that it contains a change that would be unworkable, wrecking and mammoth. He ought to make up his mind; but I hope the House’s mind is made up that we are not prepared to see sine die incarceration. I ask to test the opinion of the House.

Motion B agreed.

Motion C

Moved by

That this House do not insist on its Amendment 23B, to which the Commons have disagreed for their Reason 23C.

23C: Because the Amendment is unnecessary as an LGBT person who is a national of a country specified in the Amendment and who makes a protection claim will not be returned to their home country and can make a serious harm suspensive claim in the event that it is proposed to remove them to a safe third country, and because removal of any person to any country will only be done where the arrangements to do this are lawful.

Motion C agreed.

Motion D

Moved by

That this House do not insist on its disagreement with the Commons in their Amendments 36A and 36B; and do not insist on its Amendments 36C and 36D.

Moved by

Leave out from “House” to end and insert “do insist on its disagreement with the Commons in their Amendments 36A and 36B, do not insist on its Amendments 36C and 36D, and do propose Amendments 36E and 36F in lieu of Amendments 36C and 36D—

36E: Clause 10, page 14, leave out lines 41 to 44 and insert—

“(2E) If the person being detained under sub-paragraph (2C) is an unaccompanied child, then the person may not be detained under that sub-paragraph for more than a period of 72 hours or for more than a period of 96 hours where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975).(2EA) Where a person is detained under a provision of this Act and then (without being released) under a provision of the Nationality, Immigration and Asylum Act 2002, or vice versa, the period referred to in sub-paragraph (2E) begins with the point at which the person was first detained under the relevant provisions of either of those Acts.(2EB) The Secretary of State may, by regulations, specify time limits of less than a period of 72 hours or less than 96 hours where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975), that apply in relation to the detention of an unaccompanied child under sub-paragraph (2C).”

36F: Clause 10, page 16, leave out lines 32 to 34 and insert—

“(2C) If the person being detained under subsection (2A) is an unaccompanied child, then the person may not be detained under that subsection for more than a period of 72 hours or for more than a period of 96 hours where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975).(2CA) Where a person is detained under a provision of the Immigration Act 1971 and then (without being released) under a provision of this Act, or vice versa, the period referred to in subsection (2C) begins with the point at which the person was first detained under the relevant provisions of either of those Acts.(2CB) The Secretary of State may, by regulations, specify time limits of less than a period of 72 hours or less than 96 hours where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975), that apply in relation to the detention of an unaccompanied child under subsection (2A).””

Motion D agreed.

Motion E

Moved by

That this House do not insist on its Amendment 33B, to which the Commons have disagreed for their Reason 33C.

33C: Because the Amendment is contrary to the purpose of the Bill to prevent and deter unlawful migration.

Tabled by

33D: Clause 10, page 15, line 29, leave out “for any period” and insert “for a period of not more than 120 hours, or for a period of not more than seven days in cases where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975)””

My Lords, given the lateness of the hour and the current mind of the House as indicated thus far, with sadness I am minded not to move Motion E1.

Motion E1 not moved.

Motion E agreed.

Motion F

Moved by

That this House do not insist on its Amendment 56B, to which the Commons have disagreed for their Reason 56C.

56C: Because the Bill already makes sufficient provision to enable a potential victim of modern slavery to remain in the UK where the Secretary of State considers it necessary for the person to do so for the purpose of cooperating with a public authority which is investigating their exploitation.

My Lords, in moving Motion F, I shall speak also to Motions G, H and J. As regards Amendment 56B, this Bill provides an important exception to the application of the public order disqualification where it is necessary for a potential victim of modern slavery to remain in the United Kingdom for the purpose of co-operating with a law enforcement agency in connection with the investigation of their exploitation.

While there is indeed a presumption that it is not necessary for such co-operation to take place within the United Kingdom, the presumption does not apply where there are compelling circumstances to the contrary. In deciding whether there are such compelling circumstances, caseworkers will be guided by statutory guidance, and we are committed to such guidance having particular regard to persons believed to have been victims of slavery or human trafficking in the United Kingdom. Noble Lords will therefore appreciate that this guidance will effectively achieve the aims set out in this amendment.

The guidance will be published ahead of commencement of the relevant provisions of the Act. Statutory guidance assists decision-makers by providing them with detailed information and examples to consider when making judgments. It allows for flexibility in its implementation, which can be adapted to different situations while still adhering to the overarching legal framework, and plays an important role in supporting the interpretation and application of legislation. My noble friend and I are therefore of a similar mind as to the support offered to victims of exploitation that takes place in the UK. The Government’s view is that statutory guidance is the appropriate way to achieve this aim.

Amendment 103B seeks to confer an explicit statutory function on the National Crime Agency to combat organised immigration crime connected to illegal entry into the United Kingdom via the channel. As the noble Lord, Lord Coaker, will be fully aware, the NCA’s functions already extend to combating all types of organised crime, including organised immigration crime. Following the pledge made by the Prime Minister last December to stop the dangerous small boat crossings, the Government have doubled the funding for the next two years for the multiagency organised immigration crime task force, of which the National Crime Agency is a leading component. Our determination to tackle the criminal gangs that facilitate the channel crossings is not in doubt. It remains the case that this amendment is not needed.

We have debated at length what the Government are doing, and by when, to establish additional safe and legal routes. Therefore, in response to Amendment 102B, I will simply repeat what my noble and learned friend Lord Stewart set out last week. These commitments are on behalf of His Majesty’s Government and not just an individual Minister. I therefore hope that this amendment will not be pursued.

Finally, returning to the amendment proposed by the most reverend Primate the Archbishop of Canterbury, I remain wholly sympathetic to the need for an holistic approach and action in dealing with large-scale displacement crises and the abhorrent crimes of modern slavery and human trafficking. We work relentlessly to identify victims of modern slavery and human trafficking, delivering personalised, needs-based support and assisting recovery to rebuild lives for some of the most vulnerable in our society. Alongside this, we collaborate with a wide range of domestic and international partners to enhance awareness of modern slavery and human trafficking, bolster resilience and minimise opportunity for exploitation, supporting our ability to take a long-term approach to this issue.

The Government have already embedded actions to tackle refugee crises through existing cross-government strategies, including the international development strategy and the humanitarian framework. Much of this work has effectively and appropriately been spearheaded by the Foreign, Commonwealth and Development Office due to its focus beyond our borders. We also continue to collaborate with state and non-state actors, such as the United Nations High Commissioner for Refugees and non-governmental organisations. As noble Lords will be aware, the UNHCR has a global mandate to protect and safeguard the rights of refugees. We will continue to work with the UNHCR, as we have done many times before, to respond to displacement crises globally and offer safe and legal routes to protection in the United Kingdom. Furthermore, we have played a key role in intergovernmental processes that have shaped the way the international community responds to displacement crises, such as through the Global Compact on Refugees adopted by the international community in 2018. We continue to work to find durable solutions for refugees with like-minded international partners.

I agree with many of the points made previously on the Bill by the most reverend Primate and other noble Lords. I wholeheartedly recognise the importance of addressing the underlying drivers and taking a long-term approach to tackle these issues, and believe that our ongoing efforts already embody a commitment to an extensive and strategic approach.

Our dedication to tackling these challenges and to finding sustainable solutions remains unwavering. However, the immediate focus of this Bill is stopping the boats. As I set out at the start of this debate, it is only through stopping the boats that we can enable the Government to have a greater capacity to provide a safe haven for those at risk of war and persecution.

The House has fulfilled its proper role within our constitutional framework in relation to the Bill. Your Lordships have asked the elected House to examine these issues again—not once, but now twice. The answer has again come back from the Commons that it disagrees with the Lords amendments. It is time to leave it there. I beg to move.

Motion F1 (as an amendment to Motion F)

Moved by

56D: Clause 21, page 26, leave out line 19 and insert—

“(3A) If the relevant exploitation took place in the United Kingdom, subsection (2) also does not apply in relation to a person—(a) for a period of 14 days following the making of the decision referred to in subsection (1)(b), renewable (more than once) should the Secretary of State deem it necessary for a victim to establish cooperation with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation; and(b) on expiration of the period in paragraph (a), whether or not that period has been renewed, if the Secretary of State is satisfied that the person is cooperating with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation for the duration of those criminal proceedings thereafter.(3B) Where subsection (3) or (3A) applies in relation to a person the following do not apply in relation to the person—(a) section 22,(b) section 23, and(c) section 24.(4) In this section—””

My Lords, I first declare my interest as a trustee of the Human Trafficking Foundation, and the work that I do with Nottingham University in the Rights Lab there, as declared in the register of interests.

There are times when you stand up in this House and are proud to do so to move a particular amendment. I am proud to stand up and move this amendment before your Lordships late this evening, in defending what I think was one of the finest pieces of legislation that this country has passed in many a year. That legislation was passed in 2015 by the previous Conservative Government. Many people, as I look across this Chamber, were members of that governing party at that time. If you had said to me eight years ago that I would be stood here defending that Modern Slavery Act in the face of what a Conservative Government were doing, I would have found that almost impossible to believe.

Why do I say that? Because even today, a significant number of Conservative MPs voted for a Conservative Peer’s amendment; namely, that of the noble Lord, Lord Randall, another fine advocate of the work in this area. A former Conservative Prime Minister—not to be dismissed, I would say—and former Home Secretary, Theresa May, found it unbelievable, astonishing and incredible that her own party was driving a coach and horses through the legislation of which she was proud, of which this country was proud, and which, in fact, as many of your Lordships will know from the international conventions and conferences that they go to, has been used as an example by other countries across the world.

So I stand here moving this Motion F1, which seeks to protect UK-based victims of modern slavery with a 14-day grace period, which can be renewed by the Home Secretary, to allow them to access support and to facilitate co-operation with the authorities in relation to criminal proceedings against traffickers. During that period, all it does is restore and reapply the protection offered under the recovery period of the Nationality and Borders Act.

It is not just about helping the victims, important as that is; it is seeking their co-operation to see criminal gangs prosecuted. Noble Lords across the House have experience. All it seeks to do is, for a certain period of time, to disapply the measures contained within the Bill which would see potential victims of modern slavery detained and deported. Is that what people want? I do not believe that anybody wants that. Even people who are going to vote for this tonight do not want that. But that is the consequence should people vote for this particular piece of legislation. I am not one of those who believe that noble Peers opposite want to see victims of modern slavery dealt with in that way. All I ask them to consider is that that will be the consequence. In the Bill, there is no grace period. There is no period which will disapply the Bill from potential victims of modern slavery. They can be instantly detained and deported.

Co-operation with the police can take place overseas—what planet is that on? On what planet do we believe that you can deport a victim of modern slavery to wherever and they will continue to co-operate with the police of this country? Those victims are terrified and victimised, as are their families. You will not be able to seek what we all desire, which is to see more criminal gangs brought to justice.

This Motion is very modest. When the Modern Slavery Act was passed, 45 days’ grace was given. That was reduced, on guidance, to 30, which is what the noble Lord, Lord Randall, sought to put back into the Bill. I have gone to 14 days. Some people would say that that is pathetic—what sort of amendment is that? All I am trying to establish is the principle that a period of grace is needed for a potential victim of trafficking in this country. I do not believe that anybody objects to that, but the consequence of voting against what the noble Lord, Lord Randall, initially proposed, and which I have picked up on his behalf, would be exactly that.

I ask noble Lords to consider that when they vote, because I will tell them what will happen; something will happen that nobody in this Chamber will want. In six months, a year, two years or whatever, there will be a report which finds that numbers of people who were victims of modern slavery within the UK were detained and then deported as a consequence of this Bill. People will ask how that happened. I will tell you how: because on nights like this, in Parliaments like this, legislation was passed which had the consequences I have outlined. That is why we all need to consider, to think and to look inside ourselves: nobody wants that but that is what the consequence will be. When people ask how it happened, others will say that it was on a night like this when legislation was passed—that we did not mean it to happen but that was the consequence, and people like me stood up and said it. The noble Lord, Lord Randall, would say the same thing if he was here. If it was not so late, countless other people would stand up and say the same thing. All I ask is that people consider that.

I have to move on to Motion H1 before I forget. It deals with the National Crime Agency. I put this before the House simply to say that there has to be at least one part of the Bill that deals with tackling the criminal gangs that organise the misery before us. All the way through the Bill’s passage we have talked about the victims and what we are going to do to stop the boats. There is not a single person in the Chamber who does not want to do more to tackle the criminal gangs. All I have asked, and all we are asking for through this Motion, is for the Government to consider how they tackle this in a more coherent, constructive and urgent way.

Of course the National Crime Agency will look at and deal with this through its organised crime objective. All I am saying is that, if it is a national emergency, such that the Government are determined to push this Bill through, as is their right, why is it not important enough for us, in dealing with the national emergency, as we would do with any other national emergency, to demand regular reports to understand how the agents of the state are acting to deal with it effectively? That is what Motion H1 seeks.

In speaking to the two Motions, I will finish where I began. As I said, the Modern Slavery Act was one of the finest achievements of the last Conservative Government—I say that as a proud Labour politician. Credit where credit is due: Theresa May, as Home Secretary, drove it through. She is appalled, frankly, by what the consequences of the Illegal Migration Bill will be to that flagship Act. We have the opportunity tonight to say that we will make sure that we will at least protect the bit that says that UK-based victims of modern slavery will have protection for a certain amount of time to seek the support that they need and to work, where possible, with the police to bring the criminal gangs to justice. Is that too much to ask? I do not think that it is.

My Lords, I will speak very briefly to Motion J1. The amendment put forward under Motion J1 aims to ensure that, not only now but in the future, the Government’s policy is examined. As the Minister said, the current Government’s concentration is on international co-operation and working, although with some hesitation at times, with groups such as the UNHCR and others internationally. The amendment would ensure that that strategy—the way the Government are working—and the context in which migration is being considered are brought in front of both Houses, simply for a debate, with an analysis of the situation by the Government.

The Minister has said very clearly that he does not wish this to happen on the grounds that it is being done now, but this Bill is not about today. It will shortly be an Act, and when it is an Act it will last years—it may last many years. Who knows what will happen in elections in the future, whether they are next year, in 10 years or whenever? We cannot guarantee what kind of Government there will be at that time. That is why we have Acts of Parliament and a system of law which requires changes in the case that people wish to change the way in which this country operates.

It seems to me that the problem with the Bill is that it has not started at the right place. Where it needed to start was on a matter such as this—to have a level of national consensus and agreement on what the aim of our migration and immigration policy will be in the long term. We know what our aims are for other matters. For instance, the NHS is care that is free at the point of delivery to all who need it; it is not a political matter—at least not at the moment. That is something that holds us together, and then we argue about how it is done—fair enough.

The Bill, and the failure to pursue this amendment, seems to me to have four very simple failures. I will not repeat what the noble Lord, Lord Coaker, said so eloquently just now. First, it does not give space and time for the Houses of Parliament—for politics—to generate a consensus on what we do about a problem that the Foreign Secretary himself said last week is one that is global, geopolitical and generational. We have to make time to discuss such threats. We put time aside for threats such as climate change. Much of the migration will be generated by climate change and, in being so generated, it will move literally hundreds of millions of people across borders.

We cannot put into the Bill that we should set time aside once a year in both Houses to look at that context and discuss it and try to generate a consensus across our nation, where so many communities, including in my own diocese, which I serve, are divided, depressed and anxious—reasonably, because so much is said to them that does not have a common, united vision for this nation. That is a failure of reconciliation; it is a failure of vision to leave the structures of migration better than they used to be—because heaven alone knows it is more than 25 years since we could last look back and see an immigration policy that was really working. It is not a party-political thing.

Secondly, the rejection of this amendment—and much of the Bill, as we have heard earlier this evening—diminishes parliamentary accountability. It does not say that the Government must come to the House of Commons and the House of Lords and give reasons for what they say. It does not say that a Minister of whichever party must stand up and face people such as the noble Lord, Lord Dubs. I apologise for embarrassing him, I am sure, but I would venture to suggest that he is probably the most respected man in this House. His own experience of being an unaccompanied irregular migrant is without parallel, but his approach was casually dismissed. That is not how we should listen to the wisdom of so many years and so much experience.

Accountability is diminished. Parliament exists to hold the Executive to account—not just this Executive but future ones. It diminishes our leadership. I shall not repeat what the noble Lord, Lord Coaker, said, but he was right in everything he said about the Modern Slavery Act, as was the former Prime Minister today and as she has spoken over the past weeks, publicly and privately. It also diminishes our flexibility. This Bill pins everything down; it does not give grace periods or enable Parliament and the Government to say that the situation had changed dramatically. Who would have said four years ago that we would have 45,000 people coming across the channel in boats? Of course, we must stop that—I agree entirely with the Minister. Of course, we must stop it, but I fail to see how this legislation does that, and I have not heard anything to convince me.

But that is the view of the other place and I agree that, in the end, on most things, except the most essential, this House must give way to the other place. Therefore, I shall not be seeking to divide the House on this Motion.

I speak for these Benches, first, on modern slavery and trafficking. The Government characterise victims as fraudulent and frivolous—those are both words that have been used in debate—but you do not get into the national referral mechanism unless you are referred by Home Office-accredited first responders. They are not frivolous and they are not fraudulent.

We are left trying to salvage something from the wreckage that the Government are making of our tackling of slavery and trafficking. The Minister in the Commons today said they would not remove anyone to a country where they are endangered. But we cannot know that traffickers will not be operating in the country to which people are removed. The chances must be very high that they will operate in Rwanda, or wherever, and we will be opening up new markets for the traffickers instead of tackling them as criminals.

Iain Duncan Smith emphasised again that victims would be driven back into the hands of traffickers and that the requirement about co-operating with the prosecution will provoke such fear that prosecutions will be reduced. I agree with that concern.

We are told that guidance is the better way. I am not convinced. The Bill provides that the Secretary of State must assume that it is not necessary for a person to be in the UK for the purposes of prosecution or investigation unless there are “compelling circumstances” which require his or her presence in the UK. The Bill also provides that the Secretary of State must have regard to the guidance issued by the Secretary of State—that same Secretary of State—in determining whether there are compelling circumstances. This is the guidance that the Minister is referring to—in other words, limited to compelling circumstances.

As regards the NCA’s responsibilities, I will be sorry if we see the only attempt to focus on smugglers and trafficking—at whom we are told the Bill is directed—going.

Also in this group is the amendment which we agreed last week on safe and legal or regular routes, disagreed by the Commons today. I am sorry that this is not being pursued. The Minister said last week that time is needed after the report is published. The amendment from the noble Baroness, Lady Stroud, was to pursue action after a government report. I appreciate that the practicalities need to be pinned down, but there is no point in publishing a report if what is proposed is not practical. I am not reassured.

Safe and regular routes are what the public want and they are all that come anywhere near to making a bit of sense out of this disaster of a Bill. They are a major component of the alternative approach which some noble Lords have been saying has been missing from the debate. But all along there have been amendments dealing with that and with the administrative backlog—they have been very evident in our debates. Had the House not responded to the detail of this Bill, I am sure we would have been told that we were ignoring the Bill when that is what we are here to deal with.

The most reverend Primate’s amendment is exactly what we are told by some of those who criticise opposition to the Bill. It is exactly what he is proposing and what we should be dealing with. He has attempted to require through the means of legislation a wide and long view of the issues, and the Government have rejected that. We will be supporting the amendments to the Motions that are moved.

My Lords, as I indicated in my opening remarks, I agree with my noble friend Lord Randall—from his speeches in earlier stages of the Bill—and much of what the noble Lord, Lord Coaker, said, that we are of a similar mind as to the support offered to victims of exploitation that takes place in the United Kingdom. It remains the Government’s view that statutory guidance is the appropriate way to achieve this aim, and for that reason the Government resist the amendment proposed by the noble Lord, Lord Coaker.

Moving on to deal with the revised Amendment 103D, to which the noble Lord, Lord Coaker, spoke, he seeks to confer an explicit statutory duty on the NCA director-general to produce a report within a period of three months, beginning with the day on which the Act is passed and every three months thereafter. I am sure that noble Lords will join me in thanking the officers of the National Crime Agency, who consistently bring their expertise and dedication to combating serious and organised crime and making the UK a safer place. With regard to publishing reports, surely noble Lords can agree that the NCA’s time is better spent focusing on reducing serious and organised immigration crime and arresting the criminals behind it rather than producing reports. One has only to read the NCA’s annual report to appreciate the range of activities it is already engaged in to help tackle the cross-channel people-smuggling gangs. The NCA has also published its annual plan for 2022-23, which sets out priorities for the year ahead and how it will deliver them. I commend it to noble Lords.

On Amendment 107E, proposed by the most reverend Primate, I welcome the fact that he has put forward a new amendment which no longer seeks to provide for a 10-year strategy but rather a one-off debate. However, I am afraid that the Government remain unpersuaded of the case for his new amendment, and it is not accepted by the Government. It is not for the United Kingdom in isolation to assess the effectiveness of the refugee convention, as the amendment appears to suggest.

For all those reasons, I invite the House, in the event that any of these matters are put to a Division, to oppose them.

My Lords, for the reasons that I outlined earlier, and for the reasons that I gave with regard to the Modern Slavery Act, I beg to move my Motion F1 and wish to test the opinion of the House.

Motion F agreed.

Motion G

Moved by

That this House do not insist on its Amendment 102B, to which the Commons have disagreed for their Reason 102C.

102C: Because the Amendment is unnecessary as the Government has already committed to implement additional safe and legal routes as proposed in the report to be published under clause 59 as soon as practicable and in any event by the end of 2024.

Motion G agreed.

Motion H

Moved by

That this House do not insist on its Amendment 103B, to which the Commons have disagreed for their Reason 103C.

103C: Because the Amendment is unnecessary as section 1 of the Crime and Courts Act 2013 already provides for the National Crime Agency to have functions (including duties to publish information) in relation to combating organised crime; this function encompasses organised immigration crime.

Moved by

103D: After Clause 60, insert the following new Clause—

“Reviews: NCA organised immigration crime operations(1) The Director General of the National Crime Agency must, within the period of three months beginning with the day on which this Act is passed and every three months thereafter—(a) prepare a report summarising the nature and outcome of organised immigration crime operations undertaken by the National Crime Agency in the preceding three months, and(b) send the report to the Secretary of State.(2) Upon receiving each report under subsection (1)(b) and subject to subsection (3), the Secretary of State must, as soon as practicable, lay each report before Parliament.(3) The Secretary of State may, if they deem it appropriate for reasons of national security, publish a summary of any report from the Director General rather than publishing the report in full.(4) For the purposes of this section, “organised immigration crime operations” are operations to combat organised crime where the purpose of that crime is to enable the illegal entry of a person into the United Kingdom via the English Channel.(5) This section ceases to have effect at the end of the period of two years beginning with the day on which this Act is passed.””

Motion H agreed.

Motion J

Moved by

That this House do not insist on its Amendments 107B and 107C, to which the Commons have disagreed for their Reason 107D.

107D: Because the Amendments are unnecessary as the Government already works in collaboration with the UN High Commission for Refugees and others in response to refugee crises and in tackling human trafficking.

Motion J1 not moved.

Motion J agreed.