Lords Chamber

 House of Lords

Thursday 10 February 2022

11:00:00

Prayers—read by the Lord Bishop of Chichester.

Retirement of a Member: Lord Fellowes

Announcement

11:06:00

The Lord Speaker (Lord McFall of Alcluith)
My Lords, I should like to notify the House of the retirement with effect from today of the noble Lord, Lord Fellowes, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I thank the noble Lord for his much-valued service to the House.

National Disability Strategy

Question

11:07:00

Asked by

Lord Holmes of Richmond
To ask Her Majesty’s Government what progress they have made with implementing their National Disability Strategy.

Baroness Scott of Bybrook (Con)
My Lords, good progress is being made. Of more than 100 commitments across government, over 25 have already been delivered in just six months. Among them, the DfE invested over £8 million in 2021-22 on children and young people with complex needs, improving outcomes for these disabled children. The DWP is piloting an adjustment passport supporting disabled people’s transition to employment, and BEIS has launched an online advice hub offering accessible information and advice on employment rights for disabled people. But we understand there is more to do.

Lord Holmes of Richmond (Con)
Disabled people in the UK today face an education attainment gap, an employment gap, a pay gap, a public appointments gap, a suboptimal disabled students’ allowance scheme, inaccessible accommodation and inaccessible transport. Will my noble friend agree three things? First, there is no shortage of issues in urgent need of being addressed, as the strategy rightly sets out. Secondly, this will require unflinching commitment from Ministers and officials across Whitehall. Thirdly, there is an urgent need to get on with it.

Baroness Scott of Bybrook (Con)
My noble friend is absolutely right: there is no shortage of issues. I have mentioned some that are being changed and some that are on their way to changing, but there are a lot more that need to change and many more that are not in the strategy and need to be covered. As the Prime Minister said when he launched the strategy, this is just a “down payment”—this is just the beginning—but we are committed. We are making strides, going forward and delivering.

Baroness Lister of Burtersett (Lab)
My Lords, last week the Work and Pensions Committee took the highly unusual step of publishing a 2020 research report commissioned by the DWP but, in effect, suppressed by it and ignored by last year’s disability Green Paper. What does the Minister think is the policy implication of that report’s finding that disabled people, totally reliant on benefits, are often unable to meet basic needs, such as food, rent and heating?

Baroness Scott of Bybrook (Con)
I am sorry; I have not read that report. The DWP takes a lot of interest in all these reports and it is important that we look at the issues for disabled people, at all times. But we are spending a record £59 billion on benefits this year to support disabled people and people with long-term health conditions. That is 2.5% of GDP. There is another £421 million in the household support fund, so we are putting money into this and supporting disabled people, wherever and whenever we can.

Lord Singh of Wimbledon (CB)
Does the Minister agree that a country’s civilisation is measured by the care and compassion it gives its disabled and vulnerable citizens—a role all too often left to charities with inadequate resources? Charities such as Action for ME work with inadequate resources to improve the lives of those with this debilitating condition. Will the Government conduct a full review of current ME provision, with a view to establishing a national strategy for ME in the UK?

Baroness Scott of Bybrook (Con)
I agree with the noble Lord that charities do a lot in this country, but when the Government work with charities and others in the third sector, we can do more. I will certainly take the question on ME provision to colleagues in the Department of Health to discuss this. I do not know whether they are willing to do a review, but I will ask them to get in touch with the noble Lord.

Lord Ashton of Hyde (Con)
My Lords, it is the turn of the Lib Dems. The noble Baroness, Lady Thomas of Winchester, wants to speak virtually.

Baroness Thomas of Winchester (LD) [V]
My Lords, disabled people look forward to being consulted properly on the National Disability Strategy; in particular, on more accessible housing for rent, fair benefit assessments and reliable social care. Does the Minister agree and please will she give us timescales?

Baroness Scott of Bybrook (Con)
My Lords, across government, we are talking continually to stakeholders and charities for disabled people, nationally and locally. There is a commitment across government to continue to do that. On housing, DLUHC—as it is now called—has committed that 10% of the 180,000 homes being built in the affordable homes programme will be for supported housing and I think this is extremely important. We are doing all we can. We know that consulting everybody who needs a voice is difficult, but we will continue to do that across government.

Baroness Eaton (Con)
My Lords, I ask my noble friend how pupils with special educational needs are being supported.

Baroness Scott of Bybrook (Con)
I thank my noble friend for her question. It is important that we continue to support children with special educational needs, because, if they get the right education, they can go on to living fulfilling lives. The DfE has put a further £2.6 billion over the next three years into delivering new places and improving existing provision for young people with special educational needs. The DfE is also contributing £9.3 million in the next financial year to train educational psychologists—very important in this field. High-needs funding for children and young people with complex needs is increasing by £1 billion to £9.1 billion in the next financial year.

The Lord Bishop of Chichester
My Lords, last year, the Chief Medical Officer’s annual report focused on health in coastal communities, noting higher levels of deprivation and disability in these locations. What will the Government do to tackle the levels of multiple need and disability in these communities?

Baroness Scott of Bybrook (Con)
My Lords, I cannot say specifically, but I will certainly write with the answer. Across the whole of this country, there are areas where disability is more of an issue than in others. That is why we have this cross-government strategy, and why we will deliver on it.

Lord Ashton of Hyde (Con)
My Lords, the noble Baroness, Lady Masham of Ilton, wishes to speak virtually, and I think this is a good time to call her.

Baroness Masham of Ilton (CB) [V]
My Lords, is the Minister aware that some people with a disability just need a little personal help and assistance to get up and to go to bed, so that, once up, they can reach their full potential? Can the Government make it easier for this help to be forthcoming?

Baroness Scott of Bybrook (Con)
I thank the noble Baroness for that question. I know that on a very personal level because I have an adult daughter who is disabled and needs exactly that kind of care. I think it is important that we look to how we can do that better, if that is what disabled people in consultations say is necessary. I will take that back to the department.

Baroness Ritchie of Downpatrick (Lab)
My Lords, will the Government commit to increase the funding for research into conditions such as ME, which has already been referred to, so that children and adults across the UK can receive the right care and support that they so urgently and desperately need?

Baroness Scott of Bybrook (Con)
I think that, working with the charitable sector, exactly as I said to the noble Lord previously, that is something we should do. I will take that back to my noble friend in the Department of Health.

Lord Addington (LD)
My Lords, we have heard a great deal from the Minister—and we are all glad to—about money spent on initiatives. What are the Government going to do to bring them together as a coherent whole? At the moment, we suffer from a multitude of schemes and good intentions that do not co-ordinate. A coherent whole is the primary thrust of any successful strategy here.

Baroness Scott of Bybrook (Con)
My Lords, that is exactly what this strategy is all about. That is why, across Government, we have ministerial disability champions meeting quarterly with the Minister for Disabled People, in order to have a co-ordinated strategy for this country to improve the lives of disabled people.

Children: Online Protection

Question

11:17:00

Asked by

Baroness Merron
To ask Her Majesty’s Government what discussions they have had with the new Information Commissioner about the importance of protecting children online.

The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, the Government are committed to protecting children online and are in regular contact with the Information Commissioner, whom we welcome to his post. The forthcoming online safety Bill will provide children with world-leading protections from harmful content and activity online, and the Information Commissioner will continue to enforce the safeguards for children’s privacy in the children’s code.

Baroness Merron (Lab)
I thank the Minister for that Answer and welcome the recent announcement that the draft online safety Bill will better protect young people from online pornography. Regrettably, the Government have dragged their feet on this, meaning that more young people have been exposed to extreme content than was necessary. A new regime will take several years to come on stream. What consideration is the Minister giving to interim measures to better protect children, including, but not limited to, instructing the Information Commissioner to apply the age-appropriate design code to hosts of adult content?

Lord Parkinson of Whitley Bay (Con)
I am grateful for the noble Baroness’s support for the newer measures the Government announced this week. Of course, we will be responding in full to the work of the Joint Committee and the DCMS Select Committee in the other place. We have looked at the draft online safety Bill to respond to the further recommendations and suggestions they have made. However, we have not been inactive in the meantime. In June last year, for example, we published safety by design guidance and a one-stop shop on child online safety, which provided guidance on steps platforms can take to design safer services and protect children. Last July, we published our Online Media Literacy Strategy, which supports the empowerment of users. So we are taking steps, as well as introducing the Bill, which will be coming soon.

Baroness Kidron (CB)
My Lords, I also welcome the new commissioner, John Edwards, to his role, and congratulate the Government on this week’s announcement that the online safety Bill will include statutory guidance for privacy-preserving age assurance. Given that, to date, many of the eye-catching changes brought about by the age-appropriate design code, such as safe search and dismantling direct messaging by unknown adults to children, have been rolled out globally, are the Government working with the new commissioner to encourage the UK’s allies and trading partners to adopt the code in other jurisdictions to better enforce its provisions? Does he agree that regulatory alignment between the online safety Bill and the code is essential if we are to keep children safe?

Lord Parkinson of Whitley Bay (Con)
I am very grateful for the noble Baroness’s welcome for the new measures. There is agreement at an international level and within the UK that much more needs to be done to create a safer online environment for children, and the noble Baroness has played a significant part in fostering that agreement. The Information Commissioner has an international team responsible for engaging with data protection and information regulators all over the world. He is himself a former privacy commissioner in New Zealand, while his predecessor worked in this area in Canada, and I think that is to the great benefit of international dialogue. The international team works to ensure that the ICO’s regulatory and other priorities are appropriately reflected in international discussions. Through its work in organisations such as the OECD, the Council of Europe and the Global Privacy Assembly, the ICO also influences work on the interoperability of global data protection regimes.

Baroness McIntosh of Pickering (Con)
My Lords, I congratulate my noble friend and the Government on introducing the regulatory sandbox.

Lord Clement-Jones (LD)
My Lords, I welcome—

Lord Ashton of Hyde (Con)
My Lords, there is plenty of time. One of your Lordships can give way to the other.

Lord Clement-Jones (LD)
My Lords—

Baroness McIntosh of Pickering (Con)
My Lords, as chairman of the Proof of Age Standards Scheme board, I join the noble Baroness, Lady Kidron, in congratulating the Government on the work they are doing in this area. Can the Minister give us an update on the sandbox trial of technologies and an idea of when those trials might reach a conclusion, so that they can be rolled out? This is something that, for proof of age for buying alcohol and children’s online activities, will be an immensely positive step forward and one that is very welcome.

Lord Parkinson of Whitley Bay (Con)
I am grateful to my noble friend for her support for the new measures. I am afraid I do not have details of the specific trial to which she refers, so, if she will permit me, I will write to her with those details.

Lord Clement-Jones (LD)
My Lords, the Government seem to be bringing out their response in tantalising instalments. I can only speculate why, but, as a former member of the Joint Committee alongside the noble Baroness, Lady Kidron, I can only welcome what the Government have already announced. There are crucial elements to the control of commercial pornography: first, the age-assurance measures that were set out in the noble Baroness’s Private Member’s Bill, and, secondly, the age-appropriate design code protections for young children. There is, as yet, no indication that the Government have actually accepted the alignment of the age-appropriate design code with the online safety Bill regarding the commercial pornography elements. That is an important factor if we are really going to make sure that young people are safe.

Lord Parkinson of Whitley Bay (Con)
I hope we can continue to please the noble Lord and others with the work that we are doing in this area. The age-appropriate design code will play a key role in delivering protections for children ahead of and alongside the new online safety regulatory framework. We have aligned our approach with the code, which requires companies to apply its standards to protecting children’s personal data where they have assessed that children are likely to access their services. That will provide consistency for companies that may be required to comply with both the code and the provisions of the online safety Bill.

Lord Cormack (Con)
My Lords, does my noble friend agree that this Bill, perhaps more than any other, demands post-legislative as well as pre-legislative scrutiny? It is terribly important to see that things are really working. I add my congratulations to the noble Baroness.

Lord Parkinson of Whitley Bay (Con)
I certainly agree that the Bill has already benefited from the work of the Joint Committee and all the representations that have been made about it by parliamentarians in both Houses. One of the pre-legislative recommendations was for post-legislative attention, and we will respond to that and all the other recommendations ahead of publishing the Bill.

Lord McNally (LD)
My Lords, I think the Minister should beware TS Eliot’s:

“Woe unto me when all men praise me!”
 

There is clearly a direction of travel which is welcomed in the House. Could he assure me that the British Board of Film Classification will be involved in ensuring that this safety legislation is watertight? It has long experience in age verification and other matters that would make it invaluable to whoever will take responsibility for these matters.

Lord Parkinson of Whitley Bay (Con)
The noble Lord makes an important point. We have been speaking to the BBFC and others. The questions which we are addressing through the online safety Bill are not entirely new. The questions of access and how we can protect children, in particular, are ones that we have addressed in relation to other media. We are learning from those who have experience as we look to future regulation.

Lord Brooke of Alverthorpe (Lab)
My Lords, I do not bring any praise. Age assurance can be driven through easily by a coach and horses. The noble Baroness asked what further work is being done on facial recognition and the other factors which are now developing with technology. When we reflect on the great difficulties we have with so many areas on security, was it not a disaster, in 2011, when the then newly elected coalition Government threw away the Labour Government’s work on identification of individuals, when this is needed in so many areas? What are the Government doing to look back, reflect on that, change direction and produce proper self-identification for everyone, not just children?

Lord Parkinson of Whitley Bay (Con)
I am not sure that a national identity card scheme would be the right approach in this area. In the decade since, technology has moved on in a number of ways to enable both age verification and age assurance in a lighter touch way that affords the protections we need for children online while respecting the privacy of legitimate adult users.

Lord Farmer (Con)
My Lords, the Government’s announcement acknowledges that porn gives children unrealistic expectations about sex and relationships and encourages misogyny. However, it fails to mention the addictiveness of its consumption up the age range. Are the Government concerned about the effect on adults’ relationships, as is revealed by this worrying research? The Bill is urgently needed, and I join others in asking, because the Bill is urgently needed, when it will be introduced.

Lord Parkinson of Whitley Bay (Con)
I thank my noble friend, too, for his welcome. He raises points about the further potential harms of pornography and, although the strongest protections in the Bill are for children, it looks at the harms that online content can pose to people of all ages. On the time- table: it remains our intention to introduce the updated Bill in the coming weeks and to respond formally to the Joint Committee and to the Select Committee in the other place at the same time as the Bill is published.

Covid-19: Lateral Flow Tests

Question

11:28:00

Asked by

Baroness Finlay of Llandaff
To ask Her Majesty’s Government how many COVID-19 lateral flow tests are awaiting approval under the Medical Devices (Coronavirus Test Device Approvals (Amendment) Regulations 2021; how many have been approved; and how many that already hold Medicines and Healthcare products Regulatory Agency approval will fall if not re-approved by the extended deadline of 28 February.

The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall)
As of 3 February 2022, 87 lateral flow devices were in the CTDA approval process, and none have been approved—

A noble Lord
Speak up.

Lord Kamall (Con)
I am sorry, this is a 2.45 am hang- over. Lateral flow devices from 20 CTDA applications are currently included on the temporary protocol. If we interpret the phrase “Medicines and Healthcare products Regulatory Agency approval” as CE marking, we are currently considering proposals to ensure the continued supply and usage of tests beyond 28 February and will announce plans once a decision has been confirmed.

Baroness Finlay of Llandaff (CB)
I am grateful for the Minister’s response despite the late hour of last night’s debate. I am concerned that the information I have is that there are still 200 tests waiting, 46 have been assessed and validated at Porton Down, and the process is not well-aligned with the MHRA processes. What is being done to bring those processes back in line? What is being done to bring forward applications from devices that provide a differential diagnosis between Covid and influenza? These are already being used in Europe, but I understand that none are available in the UK because they have been held up in the validation process.

Lord Kamall (Con)
I should perhaps start with some background on this and why we have reached the situation we are in. Her Majesty’s Government began the large-scale procurement of Covid-19 test kits at the height of the pandemic. To ensure supplies for the universal testing offer, Porton Down assesses tests offered to Government. It found that three-quarters of those offered failed to meet their stated performance in their instructions for use. For most testing technology, the manufacturer needed only to do self-assessment to meet the CE marking rules, but clearly, when they were tested, they were not meeting those standards. We considered that the current standard was insufficient and did not keep bad tests off the market. That is why we had a public consultation in April that showed strong support for a more rigorous regime. In terms of avoiding a cliff edge, as it were, if they have not been validated, we are looking at solutions.

Lord Scriven (LD)
My Lords, reports indicate that the Government are seeking to implement testing only in health care settings and for the most vulnerable people, along with stopping the requirement to self-isolate if a person has Covid-19, in the next two weeks. What evidence from SAGE and NERVTAG do the Government have to show that at present, this is in the best public health interest of the country?

Lord Kamall (Con)
I am not aware of any announcements or measures that accord with the noble Lord’s question.

Lord Brownlow of Shurlock Row (Con)
My Lords, for some time I have been testing every day and use testing kits that I acquire online and pay for from the same manufacturers that the Government use to distribute free tests. Why are those tests not registerable through the Government website, so that you can get an email confirmation of a negative test? The QR codes are not recognised if you buy tests yourself.

Lord Kamall (Con)
I must say to my noble friend that I was not aware of that, and therefore I will have to go back to the department. If he could write to me about that, I will be happy to respond.

Lord Hunt of Kings Heath (Lab)
My Lords, can the Minister say how many British companies are caught in this and waiting for approval? Can he also say how many billions of pounds we have spent importing these tests from China?

Lord Kamall (Con)
I will try my best to answer the questions, but if I do not, I hope the noble Lord will accept a written response. Some 25% of approved devices are from UK manufacturers, but it is important, as a fair and neutral regulator of market access that all applicants are treated equally. The Government are working to review applications for devices submitted by the process. At the same time, while we want to make sure that the British tests are of the highest standard, we are determined to harness the power of the UK’s leading diagnostic industry. We will continue to be enormously engaged with UK manufacturers and trade bodies to support a thriving domestic diagnostic industry.

Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I wish the Minister a speedy recovery. He has been working late hours and deserves our total sympathy. I wonder, however, whether he could give us some indication of how much was wasted in preferential procurement of this kind of equipment. How much has all the equipment that is now out of date and has to be destroyed cost? I do not blame him for any of it, because he has relatively recently become a Minister, but will we have some kind of inquiry into preferential procurement and the wastage of all this equipment?

Lord Kamall (Con)
It is interesting that an earlier question asked if we are looking at British-based manufacturers. We want to be very careful that there is no preference, it is all based on merit and we have tests that meet all standards. To answer the question about the wider procurement process, there was a Question last week when I gave some detailed answers about the write-down of some of the value. We bought some of that equipment at the height of the market when people were desperately trying to buy equipment all over the world. Ships were being redirected en route when people thought they were receiving goods. That is why we paid the market price at the time.

Baroness Wheatcroft (CB)
My Lords, there is still the occasionally ping heard. Can the Minister bring us up to date with how many people are still employed on Test and Trace and what the total cost has been so far?

Lord Kamall (Con)
That is a valid question and if the noble Baroness could write to me, I will respond.

Baroness Merron (Lab)
My Lords, in addition to the need to improve the approval process for lateral flow tests, when can we expect to see a real plan for living well with Covid? Will this include proper provision for better sick pay, improved testing and those who are clinically vulnerable.

Lord Kamall (Con)
Clearly, the noble Baroness raises a number of important considerations for when we come up with a living with Covid strategy. At the moment, we are consulting on it to make sure that we have an appropriate strategy that covers many of the issues she referred to.

Lord Cormack (Con)
My Lords, am I right in thinking that my noble friend said that 25% of the testing kits are made in this country? Does it follow from that that the other 75% are made in China, or is there a wider field of manufacture?

Lord Kamall (Con)
As far as I am aware, they are from other countries; I do not know the exact figure for China. The suppliers that have been chosen have passed our protocol and meet the requirements of the procurement framework. It is really important that we have a rigorous standard, given that we found that many of the tests did not meet the instructions for use, as they claimed. We want a testing regime that is not only one of the best in the world but also very well trusted, especially if we are looking at using home testing for future diagnostics to identify more diseases and viruses, rather than waiting for people to go into hospital.

Baroness Featherstone (LD)
My Lords, given the Prime Minister’s announcement that in a couple of weeks, people will no longer have to isolate, what can the Minister say to those who have been shielding for all this time and who are now terrified that if they go out of their door, they will meet someone who is positive, so they will have to stay at home? Are their lives not as valuable as those of the rest of us?

Lord Kamall (Con)
I am sure the noble Baroness will appreciate that you always have to get the right balance. There will be those who do not want to stay at home and who want to return as quickly as possible, and you also have to consider the wider economy. We cannot shut down the whole economy for a small section of people. What we have to do is make sure that they are looked after. I have recently seen a submission about what we are going to do in future with people who are now termed clinically vulnerable and extremely vulnerable, and we will be publishing that in detail. In fact, just recently I approved a letter to the noble Baroness, Lady Brinton.

Lord Watts (Lab)
My Lords, will the Government learn the lesson of Covid and look at supply chains and the need to stockpile equipment in the future?

Lord Kamall (Con)
I could bore for Britain on supply chains. It was one of the academic subjects that I looked at, globally. As we become more economically efficient and supply chains become more efficient, they become more brittle. We saw how the shops were affected by lockdown and by China, and much of the manufacturing, as part of that supply chain, started in China. Companies across the world have looked at different options. Some have looked at sourcing elsewhere; some have looked at stockpiling; some have looked at reshoring; but all those options add considerable costs to the supply chain. Some have even looked at intermediary solutions, including warehousing in cheaper countries and then bringing the goods in closer. I am very happy to go on at length to the noble Lord at any time, but not now.

Medical Abortion Pills

Question

11:38:00

Asked by

Baroness Sugg
To ask Her Majesty’s Government what plans they have to extend the availability of the home use of pills for early medical abortion.

The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
We are carefully considering all evidence submitted to the Government’s public consultation on whether to make permanent the temporary measure allowing for home use of pills for early medical abortion. We will publish our response as soon as possible and before the end of March to give providers sufficient time to plan for whatever the outcome is.

Baroness Sugg (Con)
I thank my noble friend the Minister for that Answer. The consultation on this finished 12 months ago and the current regulations expire next month. Abortion providers have made it clear that without telemedicine services, we will face enormous demand pressures resulting in longer waiting times, later abortions and even women having to resort to unsafe abortions. It would be very helpful to understand the delay to a permanent decision and why it cannot be reached when the evidence is so clear.

Lord Kamall (Con)
One of the reasons, as my noble friend would acknowledge, is that we had lockdown and then we were let out, and then we had more restrictions. We did not want to announce something and then have to go back on it. All I would say is that it was always intended to be a temporary measure. We have looked at the responses to the consultation in order to reach a decision, and we will be issuing our considerations later.

Baroness Blackstone (Ind Lab)
My Lords, I wish to declare my interest as chair of the trustees of the Royal College of Obstetricians and Gynaecologists. Following up on the question from the noble Baroness, Lady Sugg, I find it very strange that the Government are taking so long to make this decision. The temporary service that was provided for early medical abortions comes to an end at the end of next month. The evidence is clear. According to a survey of 50,000 women published in a leading medical journal, telemedical abortion is

“effective, safe, acceptable and improves access to care.”

In these circumstances, what is holding up the Government’s decision? It seems obvious that it would be welcomed by doctors involved in the treatment of such women, and by the women who need this care.

Lord Kamall (Con)
As I am sure noble Lords will acknowledge, this is a very sensitive area. Initially, it was meant to be a temporary-only service. If we do decide to respect its temporariness, an extension will probably be made to ensure that the clinics and other medical services have time to adapt before returning to the position before the pandemic.

Baroness O'Loan (CB)
My Lords, is the Minister aware of a recent study, based on FOI requests to NHS trusts, which revealed that in 2020 more than 10,000 women who took at least one abortion pill at home, provided by the NHS, needed hospital treatment for side-effects? That is equivalent to more than one in 17 women, or 20 women a day, needing hospital treatment. Does the Minister agree that such reports indicate a serious and disturbing lack of understanding by its advocates of the dangers of the telemedical abortion policy?

Lord Kamall (Con)
I am grateful to the noble Baroness for giving the other side of the debate; it shows what a difficult subject this is. Sometimes people dig up the wider debate, but I think we have to be very careful and focus on the issue. This was a service offered to women, and the initial consultation was in person, but we made temporary provision, rightly, during the pandemic to ensure that women were treated with dignity, while appreciating that it had to be done at distance. We have looked at whether this should continue to be temporary or become permanent, and we are still weighing up this difficult decision. I think the debate today shows that there are a number of views, and it is not as simple as either side proposes.

Baroness Barker (LD)
My Lords, the telemedical abortion service has been evaluated separately in England, Wales and Scotland and it has proven to be world leading. The US Food and Drug Administration has recently approved telemedical abortion care in America on the basis of the UK studies. Does the Minister agree that women’s access to safe, high-quality abortion care in the UK should be non-negotiable?

Lord Kamall (Con)
I do not think that is in question. There is no doubt that women should have access to abortion services and to the right advice, but as the noble Baroness who spoke earlier indicated, there are some concerns and risks. We have to consider all the factors. Of course, it would be wonderful for some people if it was made easier and was available online; others say you must be prepared for the risks. Whatever happens, if something goes wrong, I am sure that the noble Baroness and others would be back here questioning why we did what we did.

Lord Winston (Lab)
My Lords, I declare an interest as a fellow of the Royal College of Obstetricians and Gynaecologists and of the Academy of Medical Sciences. Have the Government considered the evidence from Imperial College London—indeed, from my own laboratory—showing that most human embryos are born with abnormalities which are potentially lethal, and they usually die? They are then aborted by the same process which this Bill causes, only at a later stage of pregnancy. This method of natural abortion, which occurs all the time, is mostly without symptoms to the woman: they do not even know that they have lost an embryo. It is safe and does not cause the medical complications which invariably happen with a late abortion, which a woman is then committed to. What are the Government going to do about this, firmly, to make it avoidable in future?

Lord Kamall (Con)
I am grateful to the noble Lord for informing me about that—it is something I have learned today. I will take it back and consider what he has said. To return to the Question, when we made this measure it was clear that it was supposed to be temporary. Will have consulted and will look at the consultation and decide what we will do. If we do go back to what it was like before, we will make sure there is a sufficient period to ensure there is no cliff edge.

Lord Patel (CB)
My Lord, to return to the original Question asked by the noble Baroness, Lady Sugg, may I respectfully suggest that the Minister is trying to defend the indefensible? The evidence is quite clear about the safety of the procedure. We can have a debate about alternative views, but the evidence from other countries which routinely use this method of treatment is clear: it is safe and more convenient for women, and it should be implemented immediately. Will he take this back to the Department of Health?

Lord Kamall (Con)
I think the noble Lord is being slightly unfair. It is a complicated issue and not as simple as people make out. The noble Baroness said that we should be aware of dangers. These are the issues that we considered during the consultation. Whatever we do, we will be criticised— rightly so—but we want to make sure that when we make a decision it is the right decision.

Baroness Wheeler (Lab)
My Lords, RCOG data has shown that complications related to abortion have decreased since the telemedicine for EMA service was introduced. The college has warned that failure to make it permanent could lead to more women accessing an illegal abortion. NICE has recommended the service as best practice, so does not its future urgently need to be secured by making it permanent? It does not have to be temporary.

Lord Kamall (Con)
As I said, we are looking at the consultation carefully and considering all views. If we made it permanent, there would be lots of criticism, which we have to be aware of and make sure that we have the answers for. If we continue to expect it to be temporary, there will be plenty of criticism. Whatever we do, we will be damned, but we are going to try our best.

Baroness Bennett of Manor Castle (GP)
My Lords, the noble Lord, Lord Patel, talked about convenience of telemedicine for women. The fact is that women from the most disadvantaged backgrounds are three times as likely to need an abortion as those from the wealthiest backgrounds. It is not just an issue of convenience. It is a question of whether childcare is available and affordable; whether someone has a zero-hours contract job and cannot afford to take time off; or whether someone does not have access to public transport. This is very much an equalities issue—that abortion is available to every woman who needs it.

Lord Kamall (Con)
I agree with that statement but it is not what the Question is about. The Question is about a temporary measure that was put in place and whether it should be made permanent. It involves the consideration of difficult issues, including ethical issues, and we want to make sure that when we come to a decision, it is justified.

Baroness Boycott (CB)
Does the Minister accept that, as this provision is medically supported by all the experts, this decision is a political one that discriminates against women and is not based on sound medical evidence?

Lord Kamall (Con)
First, I remind the noble Baroness that we have not made a decision. I completely refute the allegation. It is unfair but I expect that, whatever we do on this issue, people will refer to the wider debate and accusations will fly around. I accept that, but we will concentrate on looking at the data and the consultation and make a decision.

Learning Disabilities (Access to Services) Bill [HL]

First Reading

11:49:00

A Bill to make provision for a review of access for people with learning disabilities to healthcare and other services, to make provision for a review of the provision of learning disability services across Government, to make associated provision for the reform of such services, to provide a statutory code of practice on the public sector equality duty for public bodies for matters relating to learning disabilities and for connected purposes.

Lord Wigley (PC)
My Lords, I draw attention to my registered interest as a vice-president of Mencap.

The Bill was introduced by Lord Wigley, read a first time and ordered to be printed.

North Sea Oil and Gas

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Wednesday 9 February.

“There will continue to be ongoing demand for oil and gas over the coming years. It is a clear choice between a transition that secures our energy, protects jobs and leads to innovation in new technologies like carbon capture and hydrogen, and an extinction for our energy sector, as I think the honourable Lady proposes. Flicking a switch and turning off our domestic source of gas overnight would put energy security, British jobs and industries at risk and we would be even more dependent on foreign imports. The way we produce oil and gas is cleaner than in many jurisdictions, so it would be illogical to import them at further expense to Britain and our planet.

The fields referred to in these reports are already licensed, some dating back to as early as 1970, and are now going through the usual regulatory processes. All proposals are subject to a rigorous scrutiny process prior to consent, as opposed to licensing, by our expert regulators, including an environmental impact assessment and a public consultation. No decisions have been taken by the regulators, so it would be inappropriate to comment further on that process. However, to be clear, continued support for Britain’s oil and gas sector is not just compatible with our net-zero goals; it is essential if we are to meet the ambitious targets we set for ourselves while protecting jobs and livelihoods.

As announced last year, and forming part of the North Sea transition deal, we will introduce a climate compatibility checkpoint for any new licences to ensure that any future licensing rounds remain consistent with our goals. Meanwhile, we continue to make progress on developing new nuclear, which I think the honourable Lady also opposes, and renewables that will power our future. Today, we have announced that we are ramping up our options for our flagship renewable scheme, contracts for difference, establishing new industries, boosting investment and creating jobs in our former industrial heartlands.”

11:50:00

Baroness Chapman of Darlington (Lab)
My Lords, the energy price crisis is a fossil fuel crisis. This means we must go further and faster on zero-carbon energy, energy efficiency and clean energy storage. In their White Paper, the Government said that they would

“develop the existing checkpoints in our processes before proceeding with future licensing rounds.”

How is what the Government said yesterday consistent with that approach? Further, can the Minister explain whether he believes that any licensing decisions must be compatible with keeping warming to 1.5 degrees and how the Government will make that assessment?

The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
I thank the noble Baroness for her question. She is right: we intend to introduce a climate-compatibility checkpoint for all new licences, which will be used to assess whether any future licensing rounds remain in keeping with our climate goals.

Lord Fox (LD)
My Lords, in Q3 of last year, which is the last time for which data is available, exports from the UK North Sea were double those of the period in the previous year. At the same time, Ministers were reported to be scrabbling to Kuwait to secure extra supplies of LNG to the UK to meet the energy crisis. This is very counterintuitive. Does the Minister agree that shipping expensive—in environmental terms—LNG from the Middle East, rather than using gas that comes from our doorstep, is not sensible or good for the planet? Will he tell your Lordships’ House how the Government will turn that around and make better use of the resources we already have and are already producing?

Lord Callanan (Con)
First, I agree with the noble Lord that it is much more sensible to use our own domestic resources, rather than LNG. However, the reality is that, throughout this period, the UK remains a net importer of oil and gas. Therefore, it makes no sense to pursue the operations he is proposing. We do not produce enough of our own domestic energy. We are expanding our renewable capacity massively and have the largest developments of offshore wind in the world. We need to go further and faster, but it makes no sense to isolate ourselves from the rest of the world and cut off imports and exports.

Lord Howell of Guildford (Con)
My Lords, in running down North Sea oil and gas for climate purposes, is it not vital to ensure that supply does not shrink so fast that it falls behind continued demand, with the resulting price explosions in all the fossil fuels that we see now, which are causing such misery and crisis?

Lord Callanan (Con)
I totally agree with my noble friend. I know he speaks with great authority on this matter as a former Energy Minister. As I just said in response to the noble Lord, Lord Fox, we remain a net importer. Production from the North Sea is sadly declining. We need to make sure that we ramp up our renewable capacity as quickly as possible, but it remains a fact that we will still have demand for oil and gas during the transition. If we have that demand, it makes sense to produce this domestically rather than importing it from other, unstable, parts of the world.

Lord Foulkes of Cumnock (Lab Co-op)
My Lords, can the Minister confirm whether decisions on these matters are within the total competence of the United Kingdom Government? Is there any way that the Scottish Government could thwart them?

Lord Callanan (Con)
No, these decisions remain a matter for the UK Government. The noble Lord makes a good point. It is sad to see the reaction of the Scottish Government in not being totally supportive of the tremendously successful North Sea oil and gas fields which, as well as employing thousands of people in good, well-paid jobs, also contribute large amounts to the UK taxpayer.

Lord Brownlow of Shurlock Row (Con)
My Lords, can my noble friend the Minister tell me whether the Government are reviewing their position on fracking?

Lord Callanan (Con)
No, we are not reviewing our position, is the short answer to my noble friend’s question. Let me explain this issue: there is currently a moratorium on fracking because of the tremendous seismological damage that it caused. We remain open to reviewing this if it can be demonstrated that fracking can go ahead in a safe and responsible manner, but nobody should run away with the idea that this could be a solution to our problems. The quantities produced would be relatively small and they would not impact on the current high prices and it would be many years, perhaps even decades, before significant quantities could come on stream, even if we overcame all of the environmental problems and gave the go-ahead tomorrow.

Lord Watts (Lab)
My Lords, a previous question was about why we are exporting something that we desperately need in the UK. People cannot understand why we are still exporting, when there is a shortage and we are having difficulties getting supplies in the UK. Can the Minister explain it?

Lord Callanan (Con)
Yes, I realise that it is counterintuitive but supplies are required in different parts of the country. We are importing and exporting. The corollary to the noble Lord’s question would be to say that we seal the borders, disconnect all our interconnection pipelines and import no further LNG—and we would not have enough supplies to satisfy our domestic demand in such circumstances. We import and we export, but the point remains that we are a net importer of both oil and gas supplies.

Lord Naseby (Con)
Bearing in mind that the four Governments previous to this one have ignored the role of nuclear—that appears to be the situation—can my noble friend assure this House that we will now see what useful role nuclear can play in giving us, in a sense, a defensive supply?

Lord Callanan (Con)
Indeed, my noble friend makes a very good point. The House will shortly have the opportunity to consider the Nuclear Financing Bill, which has its Second Reading on 21 February, I believe.

Lord Walney (CB)
The Government agree—do they not?—that the actions of President Putin show that the whole of the West needs to increase the priority it gives to energy security. New nuclear must be part of that, but it should cause us to rethink some of the finely calibrated decisions on fossil fuels here in the UK if it can mean extra security for our western partners.

Lord Callanan (Con)
The noble Lord makes an excellent point. Regarding energy, first, it takes many years to develop new sources—sometimes even tens of years—and, secondly, we need diversity of supply. Yes, we need continued oil and gas production during the transition period; yes, we need to encourage new renewables; and, yes, we need to encourage nuclear. We need a diverse mixture of supplies.

Baroness Fox of Buckley (Non-Afl)
My Lords, can I press the Minister? People have stressed the importance of reliable domestic energy sources. In response to the question on fracking, the Minister raised all sorts of problems of safety and so on. These are contentious but could it be possible for the Government to lift the moratorium or at least commit themselves to looking again at this important issue? Nobody suggests that shale gas will solve all the problems but in an energy crisis that is really serious, we want to look at nuclear, fracking and all reliable energy sources. Fossil fuels should not be demonised so that we move away from them, and safety fears should not be used to stop what would be sensible for the British economy.

Lord Callanan (Con)
The noble Baroness makes some good points. As I said in response to my noble friend earlier, we keep these matters under review. If it can be demonstrated that fracking can be carried out in a safe and reliable manner, then of course we need to consider it. But we have to be realistic about this: it is not going to be the answer to our short-term difficulties. In preparation for this, I was chatting to some specialist officials and they said it could easily be 10 years—even if we got rid of the moratorium tomorrow and overcame all the environmental problems that were caused—before any fracked gas came on stream.

Baroness Wheatcroft (CB)
My Lords, the oil companies, including BP and Shell, have been making record profits. Yet for their North Sea operations they have had a negative tax rate for several years. Given the current circumstances, might the Government re-examine the fiscal regime in the North Sea? Can the Minister tell the House?

Lord Callanan (Con)
Of course, I leave all tax decisions to the Chancellor. But, again, I think that the noble Baroness is wrong and looking at this too simplistically. First, most of the profits announced by the companies in recent days were made in worldwide operations; a very small percentage came from British domestic production. Secondly, it was only last year or the year before that they were making net losses; I do not remember the noble Baroness or others saying that we should give them taxpayer support. Thirdly, where do these profits go? First, they pay more corporation tax and, secondly, they go to UK pension funds, shareholders and people who need that income to help them though the crisis. There are no easy answers; the idea that there is some magical, mythical pot of money that we can just extract from to solve all of our problems is not true, I am afraid.

Divorce, Dissolution and Separation Act 2020 (Consequential Amendments) Regulations 2022

Motion to Approve

12:01:00

Moved by

Lord Stewart of Dirleton
That the draft Regulations laid before the House on 11 January be approved.

Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 8 February.

Motion agreed.

Money Laundering and Terrorist Financing (Amendment) Regulations 2022

Motion to Approve

12:01:00

Moved by

Baroness Penn
That the draft Regulations laid before the House on 6 January be approved.

Considered in Grand Committee on 8 February.

Motion agreed.

Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2022

Motion to Approve

12:02:00

Moved by

Lord Kamall
That the draft Regulations laid before the House on 14 December 2021 be approved.

Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 8 February.

Motion agreed.

Representation of the People (Proxy Vote Applications) (Coronavirus) (Amendment) Regulations 2022

Motion to Approve

12:02:00

Moved by

Lord True
That the draft Regulations laid before the House on 10 January be approved.

Relevant documents: 27th Report from the Secondary Legislation Scrutiny Committee and 22nd Report from the Joint Committee on Statutory Instruments (special attention drawn to the instrument). Considered in Grand Committee on 8 February.

Motion agreed.

Non-Domestic Rating (Levy and Safety Net) (Amendment) Regulations 2022

Motion to Approve

12:03:00

Moved by

Baroness Bloomfield of Hinton Waldrist
That the draft Regulations laid before the House on 10 January be approved.

Relevant document: 28th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 8 February.

Motion agreed.

Waste and Agriculture (Legislative Functions) Regulations 2022

Motion to Approve

12:04:00

Moved by

Baroness Bloomfield of Hinton Waldrist
That the draft Regulations laid before the House on 13 January be approved.

Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 8 February.

Motion agreed.

Organ Tourism and Cadavers on Display Bill [HL]

Order of Commitment

12:04:00

Moved by

Lord Hunt of Kings Heath
That the order of commitment be discharged.

Lord Hunt of Kings Heath (Lab)
My Lords, I understand that no amendments have been tabled to the Bill and no noble Lord has indicated a wish to move a manuscript amendment or speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.

Nationality and Borders Bill

Committee (5th Day)

12:05:00

Relevant documents: 7th and 9th Reports from the Joint Committee on Human Rights, 11th Report from the Constitution Committee, 18th and 19th Reports from the Delegated Powers Committee

Clause 57: Provision of information relating to being a victim of slavery or human trafficking

Amendment 151D

Moved by

151D: Clause 57, page 61, line 31, at end insert—
 “(1A) The Secretary of State may not serve a slavery or trafficking information notice on any person who— (a) is aged 17 or younger, or(b) was aged 17 or younger at the time they were a potential victim of slavery or human trafficking on the basis of which they have made a protection claim or human rights claim.”Member’s explanatory statement
 This would exclude children from the provisions of Clause 57.

Lord Coaker (Lab)
My Lords, I declare my interests as set out in the register as a research fellow at University of Nottingham, in the Rights Lab, and as a trustee of the Human Trafficking Foundation. I hope that can be noted as we go through this part of the Bill, rather than me saying it at the beginning of every group of amendments, if that is in order.

Part 5 of the Bill deals with modern slavery. There are a couple of things to say before I turn to my amendment and some of the other amendments in this large group. It is sad to see modern slavery in what is essentially an immigration, refugee and asylum Bill. That is to be regretted. Notwithstanding that, it is in this Bill, and we have a large number of amendments and important issues to discuss.

I regret much of what is in Part 5, given that one of the iconic achievements of any Government over the last few decades was that of the Conservative Government under David Cameron, with Theresa May as Home Secretary and then as Prime Minister: the Modern Slavery Act. As a Labour politician, I was pleased and proud to support it. It was a fantastic achievement, and a model for the rest of the world, and indeed the rest of the world has followed it. That should be set down as a marker in this place. I hope that the right honourable Member for Maidenhead, the former Prime Minister, hears loud and clear what I think the vast majority, if not all, of this House believe with respect to the Modern Slavery Act.

I find it therefore somewhat difficult to understand why the Government have come forward with a number of proposals which undermine some of the basic principles upon which that Modern Slavery Act was established. Clauses 57 and 58 put victims on a deadline to give information or evidence and penalise them for late disclosure. They take no account of the realities faced by victims of slavery and trafficking, and will make it harder for victims to access support.

Like much in this Bill, the starting point for the Minister must be why the Government are doing this. What evidence is there of a real problem here that needs urgently to be tackled? There is none—I cannot find it. I can see no explanation from the Government for why they are doing this, other than a belief that part of the modern slavery legislation—the national referral mechanism, or whatever you want to call it—is being abused and misused by those who seek asylum or get into this country using the devious route of claiming to be victims of slavery when they are not. Where is the evidence for that? Where are the statistical points that the Government can use to show us the scale of the problem, to say that this is what is happening, and that this is why we must deal with it?

This goes to the heart of the problem. I do not know what the politically correct term is, but the Government have set up this target to justify legislation and legislative change on the basis of attacking some mythical statistical problem—“We have to do this to deal with that”. The first thing to know is what has caused the Government to believe there is such a problem that they need this to deal with it. From memory, about one-third of referrals to the national referral mechanism are from British citizens, so you start to wonder.

Those are the parameters of the debate. I will return to many of those themes as we go through Part 5.

It is very unclear what problem the Government are trying to fix with these changes and what is gained by the clauses, because the cost of them is stark. We look forward to the Minister justifying that at the beginning of his remarks. What assessment have the Government done on the impact that these provisions, if passed unamended, will have on the national referral mechanism?

Clause 57(3) suggests that a slavery and trafficking notice will be used even before a reasonable grounds decision can be made, putting up barriers before a victim has taken even their first step into the national referral mechanism. Can the Minister explain if that is the case? Is that the purpose of Clause 57(3)?

At Second Reading, the former Prime Minister Theresa May said:

“It takes time for many victims of modern slavery to identify as a victim, let alone be able to put forward the evidence to establish that.”—[Official Report, Commons, 19/7/21; col. 728.]
 

This is not from some wild, middle-class liberal or a person who is blinded by the belief that refugees, asylum seekers and those fleeing modern slavery can do no wrong; the former Prime Minister of this country outlined one of the deficiencies that many in this Chamber believe is a real problem. Does the Minister agree or disagree with the former Prime Minister? If he agrees, why does he not do something about it? If he disagrees, I think we will come to our own conclusions. How is that reflected in measures that create artificial deadlines, which have not been needed until now, and that penalise victims for not meeting them?

Also on Clauses 57 and 58, it is not clear, and I ask the Minister to explain, whether slavery or trafficking information notices will be served on all asylum applicants or on only some. It would be discriminatory if they were served on some asylum seekers or certain categories of asylum seeker—for example, the people the Government expect to be captured by these clauses. That point was made by the Joint Committee on Human Rights.

Clause 58 provides that decision-makers must take account of a missed deadline and that it must damage a victim’s credibility, unless they have “good reasons” for providing information late. Why is the national referral mechanism all of a sudden not trusted to make decisions and give weight to these matters?

Amendment 154, which I have tabled with the noble Baronesses, Lady Prashar and Lady Hollins, and the noble and learned Baroness, Lady Butler-Sloss, seeks to find out what the Government mean by “good reasons” in Clause 58(2)—

“unless there are good reasons”.

No doubt the Minister will say that this will be clarified in guidance, that we can look forward to regulations and that, when the clause talks about “good reasons”, we can trust them, and that of course “good reasons” means good reasons”, et cetera. We will get into the nightmare situation in which nobody has a real clue what it means. That is why I am grateful to other noble Lords in the Committee for supporting that amendment.

I particularly highlight paragraph (g) in Amendment 154, which deals with the

“fear of repercussions from people who exercise control over the person”.

Time and again, you meet victims who are terrified of the system, and therefore will not co-operate, or victims who are coerced into activity that all of us sat in here—in the glory of the wonderful House of Lords Chamber—would think wrong, but which completely misunderstands the coercion that victims or survivors in those circumstances face. It is not the real world to believe that they cannot be coerced into doing activity that we might sometimes think is not right. It is not the real world; it is not their life; it is not the reality of their situation. I say to every noble Lord here, if you were told that unless you co-operated fully with individuals you were entrapped by, your parents, grandparents or family in the country from which you originated would be attacked or worse, I wonder how many of us would say, “Don’t worry, I won’t do it”. It is just not the real world.

12:15:00

How can the Minister reassure this House that all of that will be taken into account by those who make the decisions? We have trusted them to make these decisions up to now. We believe that the decision-makers will understand this without necessarily laying out in primary legislation that, if information is provided late, there must be good reasons for it or the information should automatically be disregarded.

So, as I say, the Government have so far given no clarity on what “good reason” will be; let us hope that the Minister can give us some clarity today. How many people entering the NRM who are victims of slavery and trafficking do the Government expect not to have a good reason if they struggle to present their evidence in a neat file by a specified date? Who knows?

Amendments 151D and 152 again seek to understand why the Government do not disapply any of this automatically from children who are captured by exactly the same provisions as adults. Time and again in our law—it does not matter which aspect; we have some very distinguished Members who are experienced in this—it is a fundamental principle that we treat children differently from adults, that we understand that children have different developmental needs, and that we do not expect a child to act in the same way as an adult. That is a fundamental principle of the legislative system on which this country’s democracy has been based for ever—or since for ever, or whatever the term is; your Lordships understand the point I am making—yet this part of the Bill drives a coach and horses through that principle and takes no account of children at all. That cannot be right. Even if we think that late disclosure and some of these things are right for adults, it cannot be right for children. The Minister will say that the decision-makers will of course take this into account. He will say, “Of course that won’t happen. If we have a 12 or 13 year-old child before us, nobody can expect them to be treated in the same way as an adult”. So put it on the face of the Bill so that there is no doubt about it—so that those who take decisions can have no doubt about what our intention is. Can the Minister explain why children, who made up 47% of those referred to the NRM last year, should be subject to the same provisions in this Bill as adults?

In closing, let me say that the Government’s own statutory guidance says:

“Child victims may find it particularly hard to disclose and are often reluctant to give information.”

I could not agree more with the Government in their own guidance—why do they not follow it themselves? Clauses 57 and 58 are a serious undermining of the current provisions in an Act we are all proud of, and the Government should think again.

Baroness Butler-Sloss (CB)
My Lords, I declare my interests in the register. I was much involved with the Modern Slavery Act and the review led by the noble Lord, Lord Field, so I feel I have some knowledge of this. I do not know whether the Minister, who is not at the Home Office, realises the extent to which all the non-governmental organisations of this country—including the Salvation Army, which works for the Government on modern slavery, together with the anti- slavery commissioner—deplore this part of the Bill without exception. This Minister may not know that but, goodness me, the Home Office does.

I am very concerned about children, but I heard what the noble Lord, Lord Coaker, said, so I propose to refer specifically to Clause 58. Again, because he is not at the Home Office, the Minister may not have read the statutory guidance on the Modern Slavery Act. I have it with me—it was published this month. I wonder whether the Home Office’s right hand does not know what the left hand is doing, because the requirement to be timely in providing the information needed is totally contrary to the entire work set out by the statutory guidance.

I do not want to bore the Committee, but I must refer very briefly to one or two points so the Minister can know. Under “Introduction to modern slavery”, the guidance says:

“It is important for professionals to understand the specific vulnerability of victims of modern slavery and utilise practical, trauma-informed methods of working which are based upon fundamental principles of dignity, compassion and respect.”
 

For goodness’ sake, does Clause 58 have anything to do with that? The guidance sets out how you should deal with identifying potential victims of modern slavery. In particular, paragraph 3.6 on page 35 states:

“In practice it is not easy to identify a potential victim—there are many different physical and psychological elements to be considered as detailed below. For a variety of reasons, potential victims of modern slavery may also … be reluctant to come forward with information … not recognise themselves as having been trafficked or enslaved”
 

and, most importantly, may

“tell their stories with obvious errors and/or omissions”.

One important aspect—which the Home Office on the one hand states in the statutory guidance and yet is clearly totally unaware of in relation to the Bill—is that a lot of victims who come to this country are given a story by the traffickers. That is the story they tell first, and it will not be the truth. Just think what will happen to them consequently under Clause 58. They will be treated as liars who have not given accurate information. Through the NRM—imperfect though it is—they will probably have got to reasonable grounds, but then they will get this appalling notice and find themselves not treated as victims. This is totally contrary to the Modern Slavery Act. It is totally contrary to the best of all that has happened in this country, in the House of Commons and this House, which will be ruined by this part of the Bill.

Having worked in this sector since about 2006, I am absolutely appalled that the Government think they are doing a good thing in putting this part of the Bill forward. For goodness’ sake, will they for once listen and get rid of it?

Baroness Ludford (LD)
My Lords, I will speak to Amendments 153 and 155 in the name of the noble Lord, Lord Dubs. Before I do so, I fully associate myself with the powerful words of the noble Lord, Lord Coaker, and the noble and learned Baroness, Lady Butler-Sloss. The only correction I will make to the noble Lord is that the Modern Slavery Act originated in the coalition Government, and we had a Liberal Democrat Minister in the Home Office in the person of my noble friend Lady Featherstone, who was here earlier.

Group 1 covers amendments and proposed deletions to very objectionable clauses, as we have heard. Clause 57 shifts the onus from the state to the potential victim to identify themselves and possess the relevant expertise to know what information is relevant to a slavery and human-trafficking determination. There is no provision for the specified date for supplying the information to be reasonable, or for whether and how an extension could be granted. Can the Minister say whether there will be guidance on these matters? As the noble Lord, Lord Coaker, asked, will notices be served on all asylum applicants or only on some? There would be potential for these notices to be discriminatory, in breach of the European Convention on Human Rights, if they were served only on certain categories of people. What criteria will be used if only certain people will get these notices?

There is no clarity or guidance as to what might be considered good reasons for why information has arrived late. Vulnerable or traumatised victims might take time opening up; they might well be unfamiliar with the legal process, or they might not realise that a particular detail was relevant until later. There at least needs to be guidance on what constitutes good reasons to improve legal clarity and certainty, otherwise Amendment 154 from the noble Lord, Lord Coaker, needs to be accepted.

On Clause 58, the Court of Appeal in a 2008 case said that the word “potentially” should be included if the decision-making authority were required to assess late supply of information as damaging to credibility. Hence, Amendment 153, inspired by the Joint Committee on Human Rights, changes “must take account” to “may take account” as potentially damaging to credibility. Amendment 155 would amend Clause 58 so that it does not apply to child victims or victims of sexual exploitation, similar to Amendments 151D and 152 from the noble Lord, Lord Coaker.

The bottom line is that Clauses 57 and 58 should not be in this Bill and, as has been said, Part 5 as a whole should not be in this Bill. They are arguably in breach of both the European Convention on Human Rights and the Council of Europe Convention on Action against Trafficking in Human Beings.

I think that my noble friend Lord Paddick will refer to the worries of the Independent Anti-Slavery Commissioner—we are all very conscious of this matter. Indeed, Dame Sara Thornton has a comment article in the Times today, to which I shall refer in a later group. She has been very active, not least in briefing the JCHR and outlining her extreme worries, and we have heard from the noble and learned Baroness, Lady Butler-Sloss. The whole of the sector believes that this tightening up, to the disadvantage of vulnerable and traumatised victims of human trafficking and slavery, is wholly inappropriate.

Lord Henley (Con)
My Lords, I have not yet spoken on this Bill—I missed the Second Reading for reasons beyond my control—but, like the noble Baroness, Lady Ludford, and the noble Lord, Lord Dubs, I am a member of the Joint Committee on Human Rights, which issued a number of reports on the Bill. I want to refer to the 11th report, covering Part 5, where we unanimously, as a committee, came forward with a number of recommendations. I hope that the Committee will bear with me—bearing in mind the strictures of the Chief Whip a day or two ago—if I make a brief intervention on this to support those amendments in the names of the noble Baroness, Lady Ludford, and the noble Lord, Lord Dubs. The noble Baroness was speaking to Amendments 153 and 155, but all of us are also, to some extent, in support of all the other amendments, and take note of everything that the noble and learned Baroness, Lady Butler-Sloss, said.

I offer my thanks to the noble Lord, Lord Coaker, for his very kind words about all the work my right honourable friend Theresa May has done on modern slavery over the years. I served briefly in the Home Office, as I have served briefly in a great many departments, before I was moved on—as happens so often. I know from when I served with my right honourable friend just how seriously she took this issue—she treated it as important even before she became Home Secretary. She was a member of the shadow Cabinet in the run-up to the 2001 election and then continued with this work beyond. She will be grateful for everything the noble Lord, Lord Coaker, has said. If I do not pass it on to her, I am sure she will read Hansard.

12:30:00

I do not want to make a very long intervention as I missed out on most parts of the Bill and was not here until 3.20 am on Wednesday morning. I will just underline a fact raised by the noble Baroness, Lady Ludford—and on which the noble Lord, Lord Dubs, will no doubt come in again—that this was considered very carefully from a human rights point of view by the Joint Committee on Human Rights, which is both cross-party and a committee of both Houses. We looked at this in great detail, took evidence on a great deal and produced a report with a number of recommendations. Therefore, I offer my support to Amendments 153 and 155. They will not be pressed today, but I hope that we will get, at least, a good response from the Minister and that he will consider coming forward with some alternative before the next stage.

The Lord Bishop of Bristol
My Lords, I have added my name to those noble Lords who oppose Clause 57 standing part. I am very grateful to the noble Lord, Lord Coaker, and others, who have already so eloquently made the case about concerns for this part of the Bill. As the Church of England’s lead bishop for modern slavery, I have had the privilege to sit with and listen to many charities, agencies and survivors of modern slavery, so it seemed appropriate to bring those conversations from the grass roots to your Lordships’ attention.

This is a clause which resonates deeply with the Church. Through the Clewer initiative, the Church of England is working across England with many partners to raise awareness of all aspects of modern slavery and to help support victims and vulnerable groups. This includes running training courses on county lines, producing apps which allow for reporting of suspected modern slavery cases in car washes and the farming sector, and working with many churches to raise up and equip volunteers in this area.

Only yesterday, around the corner from here, the General Synod of the Church of England discussed a motion on modern slavery and trafficking brought forward by members of the diocese of Durham and supported by members of the diocese of Southwark. This was prompted by the practical experience and difficulty in supporting a victim who had come to their attention. The synod voted to acknowledge the leading role which Her Majesty’s Government have played internationally in challenging slavery. Voting unanimously, the synod asked Her Majesty’s Government to introduce legislation to ensure proper provision for the ongoing support and protection of trafficked minors, and for this to be enshrined in law.

As a Church, and like many faith groups—I pay tribute, as others have, to the Salvation Army and the Medaille Trust—we wholeheartedly welcomed the Modern Slavery Act 2015. It has been such a crucial piece of legislation, and one we have long harboured hopes of seeing expanded and enhanced to do more to protect victims, to prevent future cases and to work with businesses and civil society in a collective effort against this appalling evil. Accordingly, it is so disheartening to see Clause 57—and others to which we will come to in due course—in this Bill. From so many charities and faith-based initiatives, and from survivors themselves, I have heard a torrent of the same message: “This is not going to work. It is going to exclude legitimate victims. It will result in fewer people being identified. It will result in fewer people being supported.”

The numbers who remain trapped and incapable of receiving the support that they need outstrip by an enormous margin the relatively small numbers seeking to abuse the system. Clause 57 seeks to eliminate abuse. I humbly suggest that we have a system in place that is already able to identify and refuse support to those who are not truly eligible. The noble Lord, Lord Coaker, alluded to this. What Clause 57 will do, in order to cut down on a relatively small level of abuse, is add to the barriers that are put before victims.

I want to end by emphasising that point. Those who work on the ground are desperate to do more to work with the Government to identify victims and eliminate modern slavery. This is the time to be accelerating and increasing our engagement to break the business models that exploit and enslave human beings. It is not the time to be making it harder for victims to come forward. I hope that we can rethink and remove this clause.

Baroness Prashar (CB)
My Lords, I am grateful to the noble Lord, Lord Coaker, for introducing these amendments with such clarity and conviction and to the noble and learned Baroness, Lady Butler-Sloss, for her passionate plea for the Government to have another look at these clauses. What I am going to say will repeat the points that they have made, but I think that they are worth repeating because they are serious concerns.

One of the main concerns of all those working with victims of modern slavery—NGOs, police, prosecutors—is Clause 58. It is humbling when you talk to those working on the front line to hear of the compassionate way in which they work with victims of trafficking. I have listened carefully to their concerns and I think that the Government should pay heed. I urge the Minister to talk properly to those working on the front line with these people.

Clause 58 will have the devastating effect of damaging the credibility of victims of modern slavery if they fail to disclose their trafficking experience within a set framework. The UK, as we have heard, is seen as a world leader in tackling modern slavery. We need to build on that experience and the achievements gained over the last few years, not undermine victims by starting from a position of disbelieving them and then requiring them to prove otherwise. That would be regressive. It would breach the Council of Europe Convention on Action against Trafficking by putting the onus on victims to identify themselves and removing the state’s obligation to identify victims and investigate trafficking offences.

Clause 58 will deter victims from coming forward, reduce the number of successful prosecutions and police investigations and leave the most dangerous criminals free. It is for this reason that the police and prosecutors have voiced their concerns. The Government’s own NRM supporter, the Salvation Army, which has held the victim care contract for over 10 years, has expressed grave concerns. Most worryingly, children are not exempt. That will be a significant setback for the achievements of the Modern Slavery Act and children protection legislation. As we have heard, the conflation of immigration with victims of trafficking, particularly children, is beyond comprehension. This clause goes against experience, undermines a legal principle and displays a complete lack of understanding. As we have heard, both Sara Thornton, the Independent Anti-slavery Commissioner, and Theresa May—rightly, compliments have been paid to her—have expressed concerns. This clause should not stand part of the Bill.

To tackle the problems that Clause 58 is designed to resolve requires operational, not legislative, change. The clause goes against the Government’s own aims. It will push victims away from support, hamper efforts to track down trafficking gangs and likely reduce numbers of prosecutions. What is needed is the improvement of the NRM, reductions of delays in decision-making and better funding. I am not clear how a set framework will help with abuse and I am not aware of any data published by the Government to illustrate misuse of the NRM. Perhaps the Minister can explain how a set framework will help and what evidence, if any, the Government have about the level of abuse.

The Government argue that this measure will help to ensure that victims are identified as early as possible to receive support. Speeding up the process is in everyone's interest, but I am not sure how the clause will help. The probing amendment of the noble Lord, Lord Coaker, which I support, would add a list of good reasons for late disclosure to Clause 58. There needs to be clarity in the legislation that the notice period can be extended. It needs to be stated clearly that there are circumstances when a late disclosure should not be penalised.

With regard to children, will the Government publish a children’s rights assessment and draft guidance before Report? As the noble Lord, Lord Coaker, said, we need that in the Bill.

Baroness Hamwee (LD)
My Lords, I have added my name to the opposition to both Clauses 57 and 58. The Minister will understand by now the view that has been expressed, with no exceptions, that the Bill does not advance our world-leading work to support victims of modern slavery and is a retrograde step. No one would say that all the work that is needed has been done. There is a lot of learning going on and it has to go on, but the Bill does not advance that work at all.

The noble Lord, Lord Coaker, asked why the Government are doing this. This had not occurred to me before but maybe it is the pervasive culture of disbelief raising its head again. I am glad that the debate on Part 5 was opened by the noble Lord and the noble and learned Baroness, both of whom I feel I should refer to as my noble friends; I have been hanging on to their coattails in this area.

I am going to say very much less than I could today. Part 5 merits—if that is not too positive a term—a whole day’s debate at least, but I, too, am aware of the pressures on time. Being constrained in the scrutiny of a Bill to which so many of us are opposed, pretty much across the board, is particularly concerning. I must investigate the procedures for moving to leave out a whole part of a Bill on Report. This is so shaming because this part of the Bill affects people whom we are so keen to support and protect.

Reference has been made to late information. I am going to give a couple of examples, both of which cases I have some particular knowledge of, not because I think that they will come as news to most people in the Chamber but because there are many of our colleagues who are not aware of all this. I refer to two victims. The first is a learning-disabled man who worked on a farm for decades in the most appalling conditions, conditions that are difficult to read about. He was not able to leave but did not even think he ought to try to do so because he did not know where else he might go. He even referred to his falling-down insanitary shed as home. The second is a young woman, who, in speaking to the police, could not get beyond the fact that in her head the perpetrator was her boyfriend. Sadly, those are both common situations. I will leave the matter there.

12:45:00

Lord Alton of Liverpool (CB)
My Lords, like the noble Lord, Lord Coaker, I refer to a non-financial interest: I am a trustee of the Arise Foundation, which works for victims of human trafficking and modern-day slavery. Like the noble Baroness, Lady Hamwee, I too wish Part 5 was not in this Bill at all. As the noble Lord, Lord Coaker, told the Committee, it is odd to put issues concerning immigration and human trafficking together in this way, as though they are part and parcel of the same problem. They are not.

That is why my noble and learned friend Lady Butler-Sloss was right to be as passionate as she was and, reinforced by the remarks of my noble friend Lady Prashar, to say that the Government really need to recast and rethink this all over again. My noble and learned friend referred to the Salvation Army which is, as she said, the advisers to the Government on this issue. It says:

“The Salvation Army has held the Government’s Modern Slavery Victim Care and Co-ordination contract for over 10 years. In that time, we have supported 15,000 survivors of modern slavery. We, along with our colleagues across the anti-trafficking sector”—
 

all of us have seen reams of representations from pretty much every representative group that there is—

“would urge you to … ensure that vulnerable survivors of trafficking and slavery are not prevented from accessing the support they deserve.”

It is hard to see how many of the measures that we are debating very briefly in the context of such an important set of provisions will enable that to happen. I do not want to pre-empt what I am going to say on my Amendment 156A on the national referral mechanism, but simply to reinforce what the noble Lord, Lord Coaker, said in his curtain-raising remarks for the whole of this section.

My noble friend Lord Hylton, and I, along with my noble and learned friend Lady Butler-Sloss and the noble Baroness, Lady Hamwee, worked with the noble Lord, Lord Coaker, who was in another place at that time and doing incredibly energetic hard-working things to get the 2015 legislation on to the statute book. We all paid tribute then, as that came through on a bipartisan, bicameral basis, through both Houses, to the right honourable Theresa May, for what Lady May did in working for this legislation to happen. However the history books judge her period as Prime Minister or Home Secretary, I believe this is her most lasting legacy and something she should be enormously proud of. That is why I too quoted her remarks at Second Reading, and I was glad to hear the noble Lord refer to them again today. I urge the Minister to go back to what she had to see had to say about this.

The right reverend Prelate the Bishop of Bristol and I go back a long way. She was once a curate in what was then the Liverpool Mossley Hill constituency, so, we also have something in common with the Minister. Bristol and Liverpool have something in common: their knowledge of the transatlantic slave trade. In 2015, we saw this as a way of cleansing some of the past: not breaking down monuments or trying to cancel history but doing something positive. My worry is that what we are doing now is undoing so much of that good work. What are these imaginary windmills that, like Don Quixote, we are being encouraged to tilt at today? There is no data. Where is the justification? Knowing that the Minister has a forensic brain, I hope he will take us through what the justifications are for what we have here. Why, as the noble Lord, Lord Henley, said, are we disregarding what our own Joint Committee on Human Rights has said to us?

I have one more thing to say, and that is on Amendment 154, referred to by the noble Lord, Lord Coaker: Proposed new subsection (2A)(g) refers to

“fear of repercussions from people who exercise control over the person”.

Certainly, through the work that I have been privileged to be involved in with the Arise Foundation, we have seen many examples of that. That children are being treated no differently in this legislation beggars belief.

Amendment 154 also refers to victims of trauma. If someone has been traumatised, then of course the statements they will make, even possibly the untruths they feel they have to tell to prevent being sent back where they came, should not be held against them. This section also deals with people with diminished capacity, and I was struck by what the noble Baroness, Lady Hamwee, said in one of her examples about people with diminished responsibility. We have all seen cases like that. The noble Lord, Lord McColl, who we will hear from later on, has done more than anyone in your Lordships’ House to draw to our attention the need to do more to help vulnerable people in that situation.

These amendments are good, but you cannot make a silk purse out of a sow’s ear. I wish this was not in this Bill at all. There is still time for the Government to recast. Given the concerns that have been echoed, not just here, but right across the sector, I hope that the Minister will take this back to the Home Office, take it back to the Government, and say let us think again.

Lord Dubs (Lab)
My Lords, I am also a member of the Joint Committee on Human Rights, and I am grateful to my colleagues on that committee who have spoken. The committee looked very hard at this issue, and we came up with very clear recommendations. I pay tribute to the noble Lord, Lord Coaker, for having set the scene for this debate.

I want to be brief but will repeat the question put by my noble friend Lord Coaker. Why are the Government doing this? On some aspects of the Bill with which I am in profound disagreement, at least I understand why the Government, in their own way, want to do what they are doing—it might be quite wrong, but I understand it. In this case, I do not even know what the case is for the Government to do this. Are they trying it on so that they can withdraw the provision and seem to be meeting the wishes of the House? There is no justification at all.

Most Members of this House will be aware that people who have been in slavery, trafficked or traumatised by sexual exploitation, often find it very difficult to talk about their ordeal. They often want to keep quiet, because the experience has been so horrifying for them that they cannot put their own case to officialdom here. I have seen this over the years when I have met people. In fairness, some of them want to talk a great deal to get their experience out of their system, but many others do not. It is a natural human reaction; one does not want to talk about one’s awful experiences; one wants almost to shut them out. Then one finds there is a need to reveal information.

I was talking to some NGOs which were working with people who had crossed the Sahara. They said that the majority of women who fled for safety across the Sahara had been raped on the journey. Many of them do not want to talk about that. It is not within their tradition and culture to talk about it, yet here we are demanding that they should.

I find it very depressing that we have to debate this at all. I urge the Minister to say that the Government will think again. That is the only way out, otherwise, when we get to Report, it will not be a nice day for the Government, because we are bound by the comments we are making today, and by having a sense of integrity in putting forward the case for people who have been in slavery or traumatised to have a reasonable chance of being dealt with. The Government should not be trying to find ways to keep them out. I ask them to think again.

Baroness Jones of Moulsecoomb (GP)
My Lords, I support this group of amendments; I have signed only one, simply because I am not terribly well organised. I agree with the comments about Theresa May, whom I admired for many things, including the fact that she gave me a colleague in this House; it was six long, lonely years without my noble friend Lady Bennett.

An Urgent Question was left off the Order Paper today. It was put in the other place by the honourable Member for Brighton Pavilion, Caroline Lucas, who is the Green Party MP. Either me or my noble friend Lady Bennett would have liked to have contributed to that debate. I should like an explanation from the Government as to why it was left off the Order Paper. I am a great believer in cock-up rather than conspiracy, but I would like an explanation at some point and have chosen to put it into Hansard for that reason.

I return to this “shaming” part of the Bill, as the noble Baroness, Lady Hamwee, described it. Every time I think we have got to the worst part, I turn a page and it is even worse. The combined resources of this House will make this a difficult section for the Government to push through.

Noble Lords have spoken from a depth of understanding and experience that I probably do not have. Evidence is evidence wherever it is uncovered, and delays in producing evidence might be considered when weighing up the quality and value of such evidence. Essentially, the Government are making this an absolute requirement, which is unfair and unjust.

We are talking about the incredibly distressing circumstances of many of these people. We have already had examples. They are victims of slavery. They have possibly been groomed, tricked or kidnapped and brought to the UK. Instead of helping them or demonstrating even an ounce of compassion, this Government are treating them all as if they have done something wrong. I urge the Government to rethink this. I would hate to see another 14 votes go against the Government in one evening but, on the other hand, that was great fun and we could probably do it again.

Lord Cashman (Lab)
My Lords, I shall speak briefly, because I was not intending to speak. I want first to congratulate my noble friend Lord Coaker on the way he introduced these amendments. I support the amendments and particularly what has been said in relation to victims of modern slavery.

I think I can rely on history to reinforce this, and I ask the noble Lord, Lord Wolfson of Tredegar, to listen carefully. History shows us that when each of us experiences appalling discrimination and persecution, that pain and that shame are buried for decades. To revisit that sometimes takes us to an area that we never want to be in again. Therefore, with that thought, I urge the Government to think again.

Baroness Meacher (CB)
My Lords, I support the noble Lord, Lord Coaker, in his intention to oppose Clauses 57 and 58 standing part of the Bill. I have a speech but I am not going to deliver it, because the arguments of the noble Lord, Lord Coaker, in particular, the noble and learned Baroness, Lady Butler-Sloss, and many others have been so powerfully put that they are simply irrefutable. I have been in the House now for 15 years or so and have heard thousands of good arguments as to why a Government should not do this, that or the other, but I have never heard such powerful arguments for a part of a Bill to be removed.

I am going to ask something that I have never asked before. Will the Minister invite the Home Secretary to come to a meeting with representatives from all sides of this House to hear the arguments first-hand from the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Coaker, and others? It is not good enough for our poor Minister, if I may refer to the noble Lord, Lord Wolfson, in that way, to hear all these arguments, to go back and say whatever he is going to say—I do not know what it will be—and then to have to come back here and say, “Sorry, guys, it’s all going to stay there”. That is not good enough. The case is so incredibly powerful. The wickedness of Part 5 should not be allowed to go by without the Home Secretary facing noble Lords directly.

Lord Hylton (CB)
My Lords, I notice that my noble friend Lady Hollins cannot be in her place today, but I urge the Minister to consider her wealth of medical, psychological and therapeutic experience, as she has her name to Amendment 154. That will strengthen the case for him taking back this group.

Lord Paddick (LD)
My Lords, the Independent Anti-slavery Commissioner, Dame Sara Thornton, wrote to the Home Secretary about this Bill on 7 September last year. I should declare an interest: I know Sara Thornton very well. We were police officers together and spent six months together on a residential course. She is extremely able and fiercely independent, and, in my opinion, the best commissioner the Metropolitan Police never had.

In relation to trafficking information notices, Sara said in her letter that trauma suffered by victims of modern slavery can result in delayed disclosure, difficulty recalling facts or symptoms of post-traumatic stress disorder. She went on to say that evidence from the Salvation Army pointed to the fact that many victims initially recall their experiences with contradictions and inconsistencies, and it can often take a considerable time before they feel comfortable to disclose fully what has happened to them, as many other noble Lords have said. Her conclusion was that to place a deadline on when they can submit evidence and to interpret late compliance as damaging to credibility fails to take account of the severe trauma suffered by victims. For those reasons alone, Clauses 57 and 58 should not stand part of the Bill.

13:00:00

My Amendment 172A, generously supported by the noble Baroness, Lady Jones of Moulsecoomb, replaces the existing Clause 65 legal aid provision. The existing clause allows additional legal aid in connection with a national referral mechanism referral if the subject is already in receipt of legal aid for an existing asylum or immigration claim. The proposed new clause would provide stand-alone legal aid to provide pre-national referral mechanism advice to any victim of modern slavery, whether they are already in receipt of legal aid or not. Clause 66 would not be required if Amendment 172A were accepted.

We support all the amendments in this group, but we hope that they will not be necessary because we hope that Clauses 57 and 58 will no longer be part of the Bill by the end of Report in this House. I was wondering why the noble Baroness, Lady Williams of Trafford, the Home Office Minister, was not in her place today to deal with these issues. I would like to think that it is because she could not face standing up and supporting these parts of the Bill.

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I thank all noble Lords for their contributions to this debate. I have listened to all of them with care. With respect to everyone else, I say that I always listen with care to the noble Lord, Lord Cashman, in particular, as I think he will appreciate from our exchanges on other matters. I got the impression that voices in support of the Government were a little thin on the ground on this matter, but I can assure the noble Lord, Lord Paddick, that my noble friend Lady Williams of Trafford is not doing these amendments not out of any personal reluctance; it was decided some weeks ago that my assistance on the Bill would include this group, and that is why I am doing it. It is fair to say that she has gone above and beyond on the Bill and others.

Lord Paddick (LD)
My Lords, just on that point, I was clearly not suggesting that the noble Baroness, Lady Williams of Trafford, did not deserve a break from her duties; she has been committed to this throughout. I said that I hoped that these parts of the Bill might be the reason, but I was obviously implying that they clearly were not.

Lord Wolfson of Tredegar (Con)
I think it might be best if we just moved on from that because, respectfully, I am not sure that it was a particularly good comment in the first place.

The measures in the Bill build on the landmark—it really was landmark—legislation brought in by the future Prime Minister, Theresa May, in 2015. On this occasion, I am very happy to acknowledge that it was brought in by the coalition Government; it was a joint effort. Notwithstanding that I am not a Home Office Minister, as the noble and learned Baroness, Lady Butler-Sloss, reminded me on a number of occasions, I can say that the Home Secretary is committed to bringing forward further legislation in the area of modern slavery as a priority, to ensure an efficient and resilient system in tackling modern slavery. That department, which is obviously not mine, will look to introduce those measures when parliamentary time allows.

Lord Alton of Liverpool (CB)
In that case, why do we not wait for that legislation and do it comprehensively, rather than put into law things to which there is so much opposition? Does the Minister also accept that, in 2015, a number of really positive changes were made to that Act in your Lordships’ House because the Government chose to listen?

Lord Wolfson of Tredegar (Con)
There were two questions there. Why now? I was going to come to that, because that is a point that the noble Lord made earlier. As to listening to your Lordships’ House, the Government always listen to what goes on in this House. They always listen but they may not always agree.

The noble Baroness, Lady Meacher, I think with some sympathy, referred to me as the “poor Minister” responsible for responding. I am poor in the sense that you do not take this job for the money, I can say that. I also cannot promise the meeting with the Home Secretary. What I can promise is that I will pass on what the noble Baroness said to the relevant people in the home department.

We have heard a number of arguments for removing Clauses 57 and 58 from the Bill. I will deal with those first, because I think that is really the head-on charge that has been put to me. I suggest that these clauses are important provisions to encourage disclosure of information at the earliest stage so we can identify victims and provide them with direct support as early as possible. The noble Lord, Lord Coaker, moving the amendment, asked why the provisions were necessary and quoted the former Prime Minister asking why artificial deadlines were required. The right reverend Prelate the Bishop of Bristol suggested that the clauses would stop people coming forward. Far from deterring victims, these clauses are intended to encourage genuine victims to come forward and get protection and support on the earliest possible occasion.

Baroness Butler-Sloss (CB)
I am sorry to interrupt the Minister, but how does he see what he is saying as compatible with the statutory guidance issued only this month?

Lord Wolfson of Tredegar (Con)
Of course we have considered the statutory guidance, not least because it comes from the Home Department and was issued this month. With great respect, we do think they are compatible. We do not see any contradiction between the aims of the statutory guidance under the 2015 Act and what we are proposing here. As to who will be served with a notice, individuals who will be served with a slavery and trafficking information notice are those who have previously made a human rights or protection claim in respect of removal or refusal of entry. They are therefore potentially subject to removal action.

The noble Lords, Lord Coaker and Lord Alton, asked: why are we doing this? I think that was then refined to: why are we doing this now? That is pretty simple to state. As I have said, we want to identify genuine victims of modern slavery or trafficking within this group as quickly as possible so that they receive both protection from removal and access to the support given during the recovery period.

This may not be the best form of providing statistics, but the number of those detained in the UK following immigration offences in 2020 was obviously affected by the pandemic. However, even prior to this there was a clear rise in the number of referrals to the national referral mechanism, from 3%—501—in 2017 to 16%—1,767—in 2019. In 2019, only a small proportion, about 1%, of individuals detained in the UK following an immigration offence who made a national referral mechanism referral were returned. We published a report last year providing data on some of the concerns we are seeking to address through the Bill and outlining pressures in the system and where referrals of modern slavery are coming from. The reports are available on the government website but, to make it simpler, I will write to the noble Lords, Lord Coaker and Lord Alton, with a copy available, with the URL so they can find the relevant material.

I suggest it is right that we reduce the opportunities to misuse the system for immigration purposes and improve the efficiency of the processes, targeting resources where they are most needed to help victims recover from exploitation and rebuild their lives. We want to address concerns that some referrals are being made intentionally late in the process, to frustrate immigration action and divert resources away from legitimate claimants. It is not right that foreign criminals subject to deportation and those who have absolutely no right to remain in the UK can seek to delay their removal by waiting until the very last minute before raising new claims or putting in endless evidence or information relating to their status in the UK. So what Clauses 57 and 58 seek to do is on the one hand ensure that vulnerable victims receive appropriate and timely support, and on the other hand enable investigative and enforcement activities to take place with reasonable dispatch.

I should point out—this did not feature too much in the debate—that Clauses 57 and 58 are underpinned by access to legal advice, under Clauses 65 and 66, to help individuals understand whether they are a potential victim of modern slavery or human trafficking, and to support a referral into the national referral mechanism if that is the case. As I have said before, a constant theme, particularly in modern slavery measures within the Bill, is that decisions are made on a case-by-case basis, taking a needs-based approach. Therefore, turning to Amendments 151D, 152 and 155, it would be wrong in principle to create a carve-out for any one group of individuals, and to create a two-tiered system based either on age or the type of exploitation claimed. I am sure that this is not the intention of those moving the amendments, but, in the real world, which at some point we must think about, it could incentivise individuals to provide falsified information regarding their age or to put forward falsified referrals regarding timings or type of exploitation to delay removal action.

It was interesting, in the course of what was, with respect, a very forceful speech supporting his amendment, that the noble Lord, Lord Coaker, referred to 12 or 13 year-olds and not, for example, to a 17 and a half year-old. When it comes to children, if we define children as all under-18s, the approach that we want to take is to ensure that decision-makers have the flexibility to approach the claims of all children of different ages and maturities appropriately, and therefore I suggest that a blanket approach is inappropriate.

By introducing a statutory requirement to provide information before a specified date—we are not talking about neat files here—we hope to identify those victims at the earliest opportunity. Clauses 57 and 58 have safeguards built in, and I assure in particular the noble and learned Baroness, Lady Butler-Sloss, that, when considering the “reasonable grounds” decision, the decision-makers in the SCA are already well experienced in taking into account the specific vulnerabilities of children. I also point out to the Committee something that the noble and learned Baroness will know but other noble Lords may have forgotten: namely, that at the “reasonable grounds” stage the threshold is lower for children due to there being no requirement to show means of exploitation. That position will not change.

Baroness Jones of Moulsecoomb (GP)
I have been biting my tongue, but the Minister talked about the real world, and I do not think that this Government have any concept of what exists in the real world. The Minister has heard examples from the real world, given by noble Lords who understand what is going on. It is not appropriate for the Minister to talk about the real world when he is denying the stories that he has heard today.

Lord Wolfson of Tredegar (Con)
My Lords, I am not denying any stories. I set out statistics earlier on which were absolutely from the real world, and that is the issue that we are dealing with.

Lord Paddick (LD)
My Lords, I apologise for interrupting, but the Minister has cited the statistics that he quoted earlier in answer to the question of why the Government were doing this. He talked about the number of referrals going from 3% to 16%. There could be three explanations for that increase: a rise in modern slavery; more cases being reported, even if modern slavery is not going up; or an increase in misuse. Bearing in mind that the majority of referrals to the national referral mechanism are made by the Home Office, and bearing in mind what he said about very few of the people who are referred being returned—  I did not quite get the percentage—it sounds like the majority of those cases are not misuse. What we need are not the statistics that the Minister is relying on but the statistics on how many cases of misuse there are.

Lord Wolfson of Tredegar (Con)
My Lords, I have already said that I will write. I will copy everybody in, particularly the noble Lord, Lord Paddick, with the relevant data. We can have an interesting discussion about potential explanations for it, but what it shows is that there is a significant increase. The question I was seeking to meet was: why do something now, why not wait until a future Bill? The short answer is that we have a manifesto commitment to deal with immigration and asylum issues. It is right that we address all issues at this stage, but, as I have underlined, this is not the Government’s last word on modern slavery. Now I really want to make some progress or we will be here until 3 am again.

Lord Paddick (LD)
Does the noble Lord not accept that 24% of modern slavery cases are UK nationals and have nothing to do with what the Conservative Party put in its manifesto?

13:15:00

Lord Wolfson of Tredegar (Con)
I am certainly willing to accept that a significant number of modern slavery victims are UK nationals. I do not know whether it is 24%, off the top of my head, but I am willing to have a look at that and come back to the noble Lord. I want to make some progress now, because I think we are going round the same points again and again.

Coming back to the noble and learned Baroness, Lady Butler-Sloss, all child potential victims of modern slavery in England and Wales will be provided with an independent child trafficking guardian to support them in navigating the immigration and national referral mechanism systems. Decision-makers are obviously trained in making those decisions, and the particular needs of children are an important part of that. In fact, I hope what I have just said responds also to some of the points made by the right reverend Prelate the Bishop of Bristol.

Moving to Amendment 153, as the noble Lords, Lord Cashman and Lord Paddick, also recognised, we understand that there will be cases where individuals are unable to comply with a deadline. There might be objective reasons, such as being under coercive control of an exploiter, or subjective ones, such as trauma, mental health issues or mental capacity, which can affect somebody’s ability to recall events. The clauses as drafted provide for this. As I have said on previous groups, we will set out in guidance the details of this approach, giving decision-makers the tools to recognise the effects of exploitation and trauma.

Where a person has raised evidence late, I suggest that it is right that decision-makers consider whether there is any merit in the reasons for that lateness. Credibility is not necessarily determinative of the case, should other factors indicate that the individual is a victim or potential victim of modern slavery. Amendment 154 asks what will be defined as a “good reason” for late disclosure. That has deliberately not been defined in the Bill, as setting out a list reduces flexibility. Decision-makers will be able to consider all relevant factors, which may include everything set out in the list in this amendment.

Clause 58 is underpinned by the provision of legal aid, as I have said. Amendment 172A would provide non-means-tested legal advice on all immigration matters to individuals who might not be victims of modern slavery. This amendment is a wide expansion of the legal aid scheme which is entirely uncosted and ignores the Government’s responsibility to use taxpayer funding wisely, in a way that obtains value for money. Such a wholesale expansion of the legal aid scheme would allow anyone claiming that they are a victim of modern slavery, but who might not be, to receive immigration advice with no financial eligibility checks in place. Legal aid for immigration matters is already available for victims of modern slavery who have a positive decision from the national referral mechanism, and the Bill does not change this. This includes ongoing support from the mechanism if required by the victim. Of course, the exceptional case funding scheme is available on top of that.

The intention of Clauses 65 and 66 is to bring advice on the national referral mechanism into scope from the outset. This builds on what is already available by helping unidentified victims who are within the immigration system to enter the mechanism. Without Clause 66, we will miss the opportunity to identify potential victims when they are receiving legal aid on their removal case.

I have two further short points. I listened very carefully to my noble friend Lord Henley, a member of the Joint Committee on Human Rights. Indeed, I appeared before that committee I think only last week. I have read the report carefully. It is on the Bench with me—it is a thumbed copy, not just a copy from the Royal Gallery. I hope I have set out the reasons for the Government’s approach, even if I apprehend that I may not have convinced him of their correctness.

Finally, I will ensure that the point raised by the noble Baroness, Lady Jones of Moulsecoomb, is passed on. My understanding—and I am newer here than she is—is that a decision on whether and when to repeat an Urgent Question taken in the Commons is for the usual channels. Even if I were a Home Office Minister, and I am not, I could not help on that further.

Lord Kerr of Kinlochard (CB)
I am impressed by the Minister’s argument that the intention is benevolent, but how does he square that with the opening point of the powerful speech of the noble and learned Baroness, Lady Butler-Sloss: that the whole voluntary sector is convinced that this is damaging and unhelpful? As for his criticism that Amendment 154 would limit flexibility, could he reread the amendment and note that the opening line includes the phrase

“include, but are not limited to”

in respect of the list of reasons? In other words, it deliberately retains flexibility.

Lord Wolfson of Tredegar (Con)
I hope the noble Lord will forgive me if I reply to his points in reverse order. On the second, of course I appreciate that it is a non-exhaustive list. The point I was making is that even a non-exhaustive list is more prescriptive, when it comes to court, than absolute discretion. When you are arguing a case, even if the statute says A, B, C, D, E on a non-exhaustive basis, you are in greater trouble coming along with F, than if the discretion is free-standing. That is the point I was seeking to make.

Of course, my colleagues in the Home Office engage carefully with the commissioner and other entities in the voluntary sector. Ultimately, it is for the Government to decide what legislation to bring before the House.

Baroness Jones of Moulsecoomb (GP)
My Lords, I want to deal with Urgent Questions again, because the Minister answered a different question from mine. I asked why it was advertised so late. He may not know this, but the Greens are excluded from the usual channels, so we would have no way of knowing.

Lord Wolfson of Tredegar (Con)
At this point, all I can do is pass that on, and I will.

Lord Paddick (LD)
On Amendment 172A, I think the Minister said that victims of modern slavery already have access to legal advice, once the national referral mechanism has made an initial decision. If he looks at that amendment carefully, he will see it is entitled “pre-national referral mechanism advice”.

Lord Wolfson of Tredegar (Con)
The noble Lord is absolutely right, which is why I was making the point about it being a fundamental extension of the legal aid system, which is uncosted.

Lord Coaker (Lab)
My Lords, I thank everyone who has contributed to this incredibly important debate. It lasted just over an hour, so I will be brief to allow us to move on; otherwise, we could have a huge debate again in me responding to the Minister. I am sure many of the same points will, quite rightly, come up in the other groups. I hope noble Lords understand and accept that.

I will reiterate the point made by the noble and learned Baroness, Lady Butler-Sloss, and referred to by the noble Lord, Lord Kerr. It is interesting to note that, when a Government are in trouble, they defend themselves against everybody. You know when a Government are in difficulty because they resort to exactly the sort of defence—quite rightly; I have done it myself—that the Minister resorted to: “If only you understood the statistics and appreciated the difficulties”. That officialdom then rains on everything. When everybody else thinks you are wrong, you usually are. I gently suggest to the Government that they have got this wrong.

I am pleased the Minister was honest about this and I thank him for his response. It is clear the Government think the system is being abused and that people are claiming to be victims of modern slavery, either straightaway or late in the day. The Government are determined to shut down this loophole in the system. That is what is going on and it is why the danger that all of us raised about including modern slavery in an immigration Bill or the Nationality and Borders Bill—whatever you want to call it—sets a context that is difficult for modern slavery, to put it mildly.

All that I would say to the Minister is that even if the Government are right in saying that there is a problem here, by trying to deal with the issue as an immigration offence, which is essentially what they are doing, they are driving a coach and horses through the principles of the Modern Slavery Act. That is why people are so upset about it, so disappointed about it, so angry about it and so frustrated about it. They accept that the Government have to deal with immigration and that there are difficulties but this country has been proud of the way in which we deal with victims of modern slavery. Treating them, as they will be, as potential immigration offenders will change the dynamic. There are victims who we do not know and have no idea who they are. Children, whether they are 17 and a half or 13 are going to be impacted. As a consequence of what the Government are doing, innocent victims are going to be penalised in the name of tackling the problem of immigration. That is why people are so disappointed.

In conclusion, I say to the Minister that it must come to something when large numbers of the governing party as well as all the other parties that make up this House, including organisations of all faiths, are arraigned against this measure, along with all the voluntary sector, including the Government’s own voluntary organisation, the Salvation Army. I should have thought that that would have given the Government pause for thinking that maybe they have not got this quite right. Let us hope that between now and Report that they do so, otherwise I can foresee real problems on Report with respect to the clause and the other clauses in Part 5. I beg leave to withdraw the amendment.

Amendment 151D withdrawn.

Clause 57 agreed.

Clause 58: Late compliance with slavery or trafficking information notice: damage to credibility

Amendments 152 to 155 not moved.

Clause 58 agreed.

Clause 59: Identification of potential victims of slavery or human trafficking

Amendment 156

Moved by

156: Clause 59, page 63, line 1, leave out subsection (4)
 Member’s explanatory statement
 This amendment deletes Clause 59 subsection (4).

Baroness McIntosh of Pickering (Con)
My Lords, I congratulate the noble Lord, Lord Coaker, for setting the scene and others who contributed to the previous debate on this part of the Bill. I welcome my noble and learned friend Lord Stewart to his place on the Front Bench. He is a much more distinguished member of the Faculty of Advocates. I am grateful to the Law Society of Scotland for raising its concerns with me, which has led to my tabling the amendment. I very much look forward to hearing from others on this group, particularly the noble Lords, Lord Alton of Liverpool and Lord Coaker. We will hear their views on their amendments in due course.

This amendment seeks to delete Clause 59(4), which states:

“Guidance issued under subsection (1) must, in particular, provide that the determination mentioned in paragraph (d) is to be made on the balance of probabilities.”
 

The amendment is to raise my concerns and dismay but also to provide the opportunity for my noble and learned friend in summing up the debate to explain the Government’s thinking on raising the bar for evidence.

Clause 59 makes specific reference, as we heard earlier, to the Modern Slavery Act 2015 and seeks to amend Sections 49, 50, 51 and 56 of it. The clause raises the standard of proof for determining a reasonable grounds decision for a victim of trafficking from “suspect but cannot prove” to “balance of probabilities”. Indicators that a person is a victim of trafficking can be missed by first responders, meaning that a referral to the national referral mechanism is not made. If a referral is made, reasonable grounds represents a sift to determine whether someone may be a victim of trafficking and whether further investigation is needed.

Home Office statistics reveal that 92% of reasonable-grounds decisions and 89% of conclusive-grounds decisions on the balance of probabilities are positive. The evidence basis for so-called overidentification is not made. The lower standard of proof at the reasonable-grounds decision stage helps ensure that potential victims do not miss out on being properly investigated and progressed to the conclusive-grounds stage of the national referral mechanism.

13:30:00

Raising the standard of proof at reasonable-grounds stage where minimal information is collected by the competent authority could foreseeably result in fewer referrals being made and will increase the prospect of potential victims not being identified by the national referral mechanism, thereby with an investigation not even taking place. In my view, it would be regrettable if, by raising the standard of proof at reasonable grounds stage, fewer referrals would made but the prospect of potential victims not being identified by the NRM without an investigation taking place would increase. So, I raise my concerns and those of the Law Society of Scotland about raising the evidence bar in the guidelines and give my noble friend the opportunity to explain. I beg to move.

The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, if Amendment 156 is agreed I cannot call Amendment 156A by reason of pre-emption.

Lord Alton of Liverpool (CB)
My Lords, it is a great pleasure to address Amendments 156A and 156B in this group and to follow the noble Baroness, Lady McIntosh of Pickering, and what she said about the Scottish Law Society. I very much associate myself with her remarks. I turn the attention of the Committee to these two amendments, the kernel of which is

“(1ZA) Guidance issued under subsection (1) must, in particular, provide that the determination mentioned in paragraph (c) is to be made on the standard of “suspect but cannot prove”.”
 

My explanatory statement says—I will not read it all—

“This amendment would ensure that amendments made to the Modern Slavery Act 2015 do not raise the threshold”—
 

the point the noble Baroness has just referred to—

“for a Reasonable Grounds decision when accessing the National Referral Mechanism in line with—”

the guidance.

One thing that came out of the last debate was that it was pretty clear that the whole Committee is agreed about one thing: that the national referral mechanism is vital to the recovery and safety of survivors of modern slavery. Since its introduction in what the noble Lord, Lord Coaker, was right to refer to as “landmark legislation” in 2015, a point echoed by the noble and learned Lord in replying to that debate, it has allowed us to identify survivors and ensure they receive the right support and are able to assist law enforcement in tackling this abhorrent trade in human beings and human suffering. I am very grateful to my noble friend Lady Prashar and to the right reverend Prelate the Bishop of St Albans for signing Amendment 156A.

Accessing the NRM is the crucial first step on a survivor’s journey to recovery, giving them access to vital legal and financial support, safe accommodation and an exit from the kind of exploitation that the noble and learned Baroness, Lady Butler-Sloss, referred to earlier. It enables them to start the process of rebuilding their lives, empowering themselves and even bravely supporting the prosecution of traffickers so that more potential victims are saved from exploitation. First established in 2009, and supported by successive Governments, the NRM was recently highlighted by the Organization for Security and Co-operation in Europe as being a key element in the fight to end slavery. Since then, with the introduction of the Modern Slavery Act 2015, the UK has become a world leader in this fight and a beacon of hope for those who have been trafficked and enslaved.

However, as the noble Lord said earlier, and I agree with him in this sense, the national referral mechanism is not perfect. That is clear but the opportunity to do something about it is up the track. There is no need for Part 5 to be incorporated in the Bill, when it is inconsistent with much else in it anyway. The noble Lord told the House earlier that there is to be new legislation, so why on earth can we not wait for that? There is an old saying that when you legislate in haste, you repent at leisure; that is what we will do if we simply push this through in a pell-mell way. The mechanism may not be perfect, but it is better than anything else at the moment and we should be very careful about what we do to it.

There is a catalogue of confusion and delays, but I am sure the Government do not believe that the only solution is simply to reduce the number of poor people able to access support. However, that is exactly what Clause 59 will do. Effectively increasing the threshold that these traumatised individuals must meet, almost from the get-go, to receive support will not only leave many with the choice of slavery or destitution; it will fundamentally undo the years of hard work by government, police, NGOs, charities and Members of both Houses.

Even now, far too many survivors go unrecognised and are excluded from support. Despite our understanding of the nature of trauma and the horrors so many have gone through, many do not receive a “reasonable grounds” decision and are forced to reapply. In the previous debate, we were urged to get into the real world. The noble Lord, Lord Coaker, had a better definition of what the real world is than the one we heard from the Government Front Bench. I will do as the noble Baroness, Lady Hamwee, did earlier and share one example with the House, if I may.

It is the case of a poor woman who was the victim of trafficking and violent sexual exploitation. By the time she arrived in the UK, she already had severe PTSD. Her symptoms included involuntary numbing, avoidance, dissociation and shame. She failed to disclose her trafficking experience in her early interactions with the Home Office, due to the severe trauma she had experienced. These inconsistencies later contributed to her receiving a negative decision on her trafficking claim. However, they needed to be understood in the context, as I said earlier, of prolonged exposure to trauma at an early age and fear of reprisals from her abusers.

Clause 59 risks raising the threshold for a positive reasonable grounds decision at this vital first stage, meaning that survivors such as that woman will be forced to meet an even higher threshold of evidence almost immediately, before they have accessed safety and a lawyer, translator or advocate to help provide the evidence that is expected of them. The noble Lord who addressed the House earlier has promised to write to the noble Lord, Lord Coaker, me and others with more data. Here is a little data that I will share with the noble Lord, Lord Sharpe.

It is worth noting that 81% of all negative decisions at this first stage which where reconsidered were found to have been wrong, and the victim deserved a positive reasonable grounds decision. Currently, there are an estimated 136,000 victims of modern slavery in the UK, and a little over 10,000 were referred to the NRM in 2020. That means there is a vast number of individuals who have been trafficked and enslaved in our country and are already far from the safety offered by the national referral mechanism. Were we to raise the threshold to access safety and support, it would surely only play into the hands of the traffickers and slave masters by preventing survivors sharing their experience and supporting criminal investigations.

I note that the Government have denied that Clause 59 will increase the threshold, and that the intention behind it is to bring us in line with the European convention on action against trafficking—ECAT. However, many who are in the anti-slavery movement, to which we heard a lot of references earlier, and on the ground in the real world supporting vulnerable people every day believe that it is already harder today than it was, even a year ago, to get a positive decision. As such, if not remedied in the guidance, the change in language represented in this clause would effectively raise the NRM threshold.

Furthermore, the Government have rightly decided to include in the Bill that conclusive grounds decisions be made on the balance of probabilities. If the intention is not to raise the threshold, then I simply ask the Minister that they put in the Bill that reasonable grounds decisions be made on the tried and trusted standard of “suspect but cannot prove”, which is the essence of Amendments 156A and 156B. That would allow the Government to change the language of the Modern Slavery Act to be more in line with ECAT, in order to provide more consistency between conclusive grounds decisions and reasonable grounds decisions in the Bill. Vitally, it would not raise the threshold for survivors of trafficking to receive a positive decision, therefore ensuring that these poor people receive the support they so desperately need and the authorities have the evidence they need to end slavery.

Article 10(2) of ECAT says that

“if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence … has been completed”.

Both ECAT and the Modern Slavery Act envisage that support be given to victims through the NRM as the earliest stage possible, when someone is identified as a potential victim. Raising the threshold only to those who prove their status as a victim of trafficking would undermine the point of the three-stage referral system currently in place. That support is crucial to enable victims to make any discourses from a position of safety.

No doubt the Minister will say that the NRM may have been abused, but I ask him to provide the justification for that claim. As the noble Lord, Lord Coaker, and I said earlier, where is the data? I refer the Minister to the report by the Rights Lab at the University of Nottingham for evidence that the NRM is not being abused. Indeed, according to many reports, one of the biggest problems with our NRM is that it is underutilised; there are already a low number of referrals to the NRM. According to the Global Slavery Index, the estimated figure for the prevalence of modern slavery in the UK is 136,000, yet in 2020 only 10,613 potential victims were referred to the NRM. Raising the threshold would serve only to further restrict those who access the vital resources of the NRM.

I therefore felt it necessary to table these amendments. Those who are referred to the NRM are often among the most vulnerable, in the most traumatic moments of their lives. We should not be raising the threshold; we should be doing everything we can to facilitate their access to support. I beg to move.

The Lord Bishop of St Albans
My Lords, I shall speak to amendments 156A and 156B in the names of the noble Lord, Lord Alton of Liverpool, and the noble Baroness, Lady Prashar, to which I have added my name. I hope I can be fairly brief because much of the ground has been set out brilliantly by the noble Lord, Lord Alton, and I am very grateful for that.

The reality of Clause 59 is that raising the threshold—from “reasonable grounds” to believe that someone maybe a victim of modern slavery, to “is” such a victim—could lead to the national referral mechanism failing to identify victims of modern slavery, effectively shutting them out of the support that they so desperately need. That was picked up yesterday in our General Synod debate across the road, to which the right reverend Prelate the Bishop of Bristol has already alluded.

The Clewer initiative, to which she has also alluded, is our response to modern slavery. It was set up in 2016 and published three strategies for 2022. Two of these included promoting victim identification and providing victim care and support. Our concern, along with the Clewer initiative, is not just to get down to the legal minimum but to try to accompany people on what is the most traumatic journey, through which many of them will need considerable help. Part of the reason for that—many Members of your Lordships’ House will grasp this but many people in wider society do not—is that much modern slavery is effectively hidden, and sometimes so subtle that even the people involved in it do not always get what is going on. That is why it affects drug traffickers, fruit pickers, beauticians, people working in nail bars and so on, as well as the obvious areas where people find themselves caught up—for example, in the sex industry.

This coercion is a subtle thing, but it plays a central role in keeping individuals in this misery. It can range from violence to substance addiction, debt bondage and, of course, withholding people’s papers. So, it is a long and complex process. The CURE initiative states that beyond these factors, one of the key elements in controlling victims of modern slavery is creating a fear of any authority so the victims simply do not know where to go. Often, victims will hide.

13:45:00

So it is crucial that, as we are trying to think about the right threshold, we make sure people are getting support and not being prevented before they have even accessed a lawyer, translator or advocate to help evidence their experiences. My fear is that, without these amendments, exploiters and slavers will be able to lean on this increased threshold to further manipulate and control their victims, and deter them from seeking help.

I will just underline some statistics—and one or two more—that the noble Lord, Lord Alton of Liverpool, mentioned. In 2020, the single competent authorities, he said, made 10,608 reasonable grounds and 3,454 conclusive grounds decisions. Of these, 92% of reasonable grounds and 89% of conclusive grounds were positive; and 81% of reconsidered claims at reasonable grounds stage were later positive. In other words, the vast majority of those who receive positive reasonable grounds decisions go on to be confirmed as victims. That is the crucial thing here.

It seems extraordinary that it looks as if the Government are trying to bring the UK in line with the Council of Europe Convention against Trafficking—ECAT—for reasonable grounds decisions on whether a person is a victim of modern slavery, particularly when our current legislation, it would appear, goes well beyond ECAT and strengthens the identification mechanisms to ensure that fewer victims fall through the cracks and fail to receive the appropriate support after the terrible injustices they have incurred and the suffering they have experienced.

I cannot tell whether this alignment it seems the Government are doing is simply for alignment’s sake. But it does seem extraordinary when we were told again and again that the point about Brexit was that we did not need to align with others and could actually make the right decisions. Yesterday’s debate paid huge tribute to our Government in this country for being a trailblazer in this work. I fear that we are going backwards at a time when we need a much stronger lead in our nation. I am struggling to identify any positives with respect to the increased reasonable grounds threshold, and I worry it will simply play into the hands of traffickers. We need the Government to look afresh at this section. I particularly commend these amendments as a way that we may improve this Bill as it goes through Parliament.

Baroness Prashar (CB)
My Lords, I rise to support Amendments 156A and 156B, in the name of the noble Lord, Lord Alton, and supported by the right reverend Prelate the Bishop of St Albans and myself. I will be extremely brief as all the points I wished to make have already been covered. Therefore, I really want to say that I strongly support the amendments and the arguments made by the noble Lord, Lord Alton, that the Government should put on the face of the Bill that a reasonable grounds decision should be made on the tried and trusted standard of “suspect but cannot prove”. I think his explanation and the logic of his arguments were compelling, so I would urge the Government to pay some heed.

Lord Deben (Con)
My Lords, I declare an interest because, in my work on sustainability in the business that I chair, we of course help companies to deal with modern slavery. That is why I wish to rise. It does mean we know a bit about it, and I have to say to the Government that everybody who knows a bit about it does not agree with the Government. That is why we have to say this very clearly.

The problem with modern slavery is that people who are involved in it hardly know where they are and what it is all about. That is the difficulty because, whatever we do, access to whatever we do is always going to be the problem. We have to find ways of ensuring that as many people as possible can enter into the beginnings of a conversation which will, in the end, reach the position in which they will be released from modern slavery—and it is that beginning moment that is most important and delicate.

I agree with the noble Lord, Lord Alton, that what is being proposed in this part of the Bill should not be here at all, simply because, in this context, it makes a comment which it should not make. In this context, it comments that this is something to do with nationality, borders and immigration. But it is nothing to do with any of those except accidentally—and I use that word in the technical sense.

We ought to be immensely proud of this legislation. I sit as the independent chairman of the Climate Change Committee, so I do not often mention the fact that I have been a Conservative for many years. I am not quite sure of the situation in certain circumstances, but that is the position in which I find myself, and I will say that I think it is one of the great statements of the Conservative Party that it was at the centre of passing this legislation. It shows that we have a real understanding of the responsibility of those who have to those who have not. That is why the intervention of the right reverend Prelate is absolutely appropriate, because this about the attitude to human beings that we should have if we are people of faith.

Anything that detracts from a triumph should be opposed, above all, by those who have been proud of it in the past. That is why I do not want this particular debate to go on without somebody from these Benches making the points. It is wrong to make it more difficult for people to get into the system. The moment you move away from “suspect but cannot prove”, you make it more difficult, and I hope that this House will not allow the Government to do this. Above all, I hope that the Government will think again about why they want to do this. They have presented no proof that there is any widespread misuse of this. Even if they did, I put it to the Minister that that is a price we have to pay. They have not proved it; there is no evidence for it; but, even if there were, one has to accept that the nature of the people we are dealing with means that we have to reach out further than we would in other circumstances.

At the moment, I fear that the Government are like the Levite rather than the Good Samaritan, and I wish them to return to their proper place, which is to cross the road to find out what is happening.

Baroness Butler-Sloss (CB)
My Lords, for the reasons given by other speakers—particularly the last speaker, with whom I profoundly agree—I support these amendments. However, I want to raise a slightly different point on Clause 59. It appears to apply to children. I have had, over the years, numerous meetings with the Home Office, and I thought we had got to the position where the Home Office agreed that the NRM was not the right place for children to go, because anyone under the age of 18 becomes immediately, on arrival in this country, the responsibility of a local authority under Part 3 of the Children Act 1989. Consequently, local authorities take over these children.

As the Minister, the noble Lord, Lord Wolfson, pointed out, there are these independent guardians—advocates, who act as guardians—but the children are supposed to be cared for by a local authority with an independent guardian and should not be going through the NRM. What disturbs me about Clause 59, in addition to the points that have already been so ably made, is whether it is really intended that the Government want children to go through the NRM. Should not they in fact all be dealt with entirely through local authorities, with the help of the advocate?

Baroness Hamwee (LD)
My Lords, my name is to Amendment 157. This is a rhetorical question, but is not it interesting that the noble Lord, Lord Deben, who, if I am right, was not able to be here for the first group of amendments, has made points that were not rehearsed in his presence but are exactly the same points, as he says, from the point of view of the best traditions of Conservatism?

Clause 59 again prompts the question: why, and what is the problem? What is the evidence for what the Government perceive as a problem? Are there too many people claiming to be victims? Like other noble Lords, I thought the problem was that we do not know how many there are. We try to identify them, but we know that we do not manage to identify them all—but we know that all the indicators are that modern slavery goes wide and deep. The problem is that we do not identify everyone that we want to support. What underlines the Modern Slavery Act is getting people to the situation in which they can be supported.

Under Amendment 157, the Member’s explanatory statement actually refers to “current statutory guidance”, a point that was very well made in the previous debate.

I want to say a word about Amendment 173, on navigators. I am quite intrigued by this—guardians for adults, is that what is intended? Some police forces have a much better understanding of how to deal with victims, or possible victims, of slavery. I am not sure whether I have the name of this right, but I think that there was a transformation unit; the noble Lord, Lord Coaker, may remember. The police did a lot of work at one time. Can we hear about that from the Minister?

Baroness Butler-Sloss (CB)
I may be able to help the noble Baroness—it was at Exmouth. I went to see it.

Baroness Hamwee (LD)
Indeed, it was excellent. That is why I raised it—because I wonder what has happened to it. As I say, I find the suggestion made in Amendment 173 intriguing, and I hope that it will be taken very seriously.

Lord Coaker (Lab)
I rise briefly to say that we support the amendments in this group. I say to the noble Lord, Lord Deben, as the noble Baroness, Lady Hamwee, said, and we have said right across the Chamber, the points that he made about the contribution that Theresa May made—within the coalition Government, as I was reminded—were fantastic.

Lord Deben (Con)
I was not there for that, but it seemed to me that it was worth repeating, if I may put it clearly.

Lord Coaker (Lab)
Well, it is the first time that I have heard repetition in this Chamber, so I thought that the noble Lord could not have been here. But it was a serious point, and it deserved to be made again, because we all agreed with it.

We support all the amendments in the group. I will speak specifically to Amendments 157 and 173. The other amendments have been spoken to very ably by the noble Lord, Lord Alton, and others, so I will not address those, in the interests of time. With respect to Amendment 157, it is intriguing that the statutory guidance says that

“a Conclusive Grounds decision will not be made until at least 45 days of the recovery period have passed”.

Why does the Bill reduce that to 30? That is my understanding, unless I have misread it. We talk about enhancing, but, as I say, 45 days is the period in the statutory guidance, while the Bill talks about 30 days.

Given that we are in Committee, it would be interesting to hear more on this. Am I wrong? Does the 30 days refer to something different? I cannot find references to 45 days in the Bill, but that is what is in the statutory guidance. Could the Minister respond to that? It would be helpful to the Committee to know what the 30-day period is vis-à-vis the 45 days set out in the statutory guidance, which is what the whole sector uses with respect to the recovery period and is, indeed, how I have understood it.

14:00:00

As has been said, the recovery period gives the police time to gather evidence and build a relationship with the victims. It gives the victims time to access support, break the control of their traffickers and build relationships with agencies. All of this is beneficial to securing prosecutions, which are woefully low, whatever the efforts of the Government and the police. The crucial question is: how does this help? What is gained by reducing the recovery period? I just do not understand the logic of that.

Can the Minister inform the Committee—he may not be able to do so now, but this is worth asking before we get to Report—how many decisions are currently made at the 45-day mark? The anti-slavery commissioner has given figures that the average length of time it took for a conclusive grounds decision to be made in 2020 was 465 days. So why would the Government seek to shorten a timeframe that they are already substantially failing to meet? Have I profoundly misunderstood something—if that is the case, it would be helpful for the Committee for me to be corrected—or am I right and there is something here that we need to understand?

I thank the noble Baroness, Lady Hamwee, although she is not in her place. On Amendment 173 on victim navigators, we can see the success that the pilot has had. It would be interesting to know what plans the Government have to roll this out. Clearly, they are looking at ways to try to increase the prosecution rate for people traffickers, which we would all support. However, there is currently nothing in the Bill about what is expected with victim navigators. What is happening? Is that just being rolled out as a matter of policy anyway and does not need to be in the Bill because it is going to happen? As the noble Baroness, Lady Hamwee, pointed out, where victim navigators are in place with police forces, working with the CPS and others, the prosecution rates have improved, as I understand it. That seems to suggest that it would be helpful if victim navigators were rolled out into all police force areas.

Amendments 157 and 173 are probing amendments to understand the operation of the Bill. We also support the amendments that the noble Lord, Lord Alton, and others have put before the Committee.

The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, I am grateful to all noble Lords for their contributions. The amendments in large part concern provisions around the identification of modern slavery and trafficking victims.

First to speak was my noble friend Lady McIntosh of Pickering, who sought an explanation for Clause 59. The clause places the conclusive grounds threshold of a “balance of probabilities” into legislation. This is in line with the threshold that is currently applied and accepted by the courts and aligns with our current obligations under the treaty to which a number of speakers have referred: the Council of Europe Convention on Action against Trafficking in Human Beings —ECAT.

We submit that to remove this provision, as Amendment 156 would, would cause an inconsistent approach towards the two thresholds: the reasonable grounds threshold would be contained within legislation, whereas the conclusive grounds threshold would remain only in guidance. By legislating for both thresholds, decision-makers are able to rely on clear precedent and the process is both certain and ascertainable. This search for clarity will run through and inform the answers I will put before the Committee in this debate.

Amendments 156A and 156B from the noble Lord, Lord Alton of Liverpool, would amend the test for a reasonable grounds decision in legislation. The matter of whether there are “reasonable grounds to believe” that an individual is a victim is the appropriate threshold —again, as it mirrors our obligations under ECAT. For those reasons, I cannot accept Amendments 156, 156A and 156B.

I shall expand on matters raised by the noble Lord, Lord Alton, touching first on the ability that exists in legislation for people to challenge a decision made. Multiagency assurance panels are required to review all negative conclusive grounds decisions made by the competent authority for all cases submitted to the relevant competent authority. Multiagency assurance panels do not review negative reasonable grounds decisions. The role of multiagency assurance panels and the processes they follow are set out in the modern slavery statutory guidance for England and Wales promulgated under Section 49 of the Modern Slavery Act 2015. There is equivalent non-statutory guidance for Scotland and Northern Ireland; it is not found in primary legislation. The guidance states:

“An individual, or someone acting on their behalf, may request reconsideration”
 

of a negative reasonable grounds decision by the competent authority

“if additional evidence becomes available that would be material to the outcome of a case, or there are specific concerns that a decision made is not in line with guidance.”

The final conclusive grounds decision remains the responsibility of the competent authority. Multiagency assurance panels do not have the ability to overturn negative conclusive grounds decisions made by the competent authority. The competent authority can be asked to review a case where there is concern that the decision has not been made in line with existing guidance; that, in the view of the multiagency assurance panel, that would add value and clarity but has not been sought; or that the evidence provided and used in the decision-making process was not weighed appropriately and considered. So an element of its ability to reconsider and discretion remains in place.

I think the whole Committee will be aware that understanding of the painful effects of trauma and suffering on individuals and their ability to recollect is developing and has developed considerably over recent years, as a better comprehension of these strains and pressures comes to be understood. That understanding filters into this field, as into others. In particular, I refer your Lordships to understanding in the criminal justice system as to why people may make declarations or give statements that are not in their best interests or that they subsequently seek to go back on.

This topic seems to inform the points raised by the right reverend Prelate the Bishop of St Albans and my noble friend Lord Deben. Victims may well not want or be able to relive their trauma to state officials. Moulded by forces that those of us who have been happy enough to lead comfortable and sheltered lives can barely comprehend, they may find state officials intimidating.

Will the policy inhibit such people and impact adversely their ability to come forward and speak up? We recognise that some victims of exploitation may be fearful of coming forward to talk to the authorities, including some of the organisations that operate as first responders. That is why a range of organisations operate as first responders, including charities—some of which the Committee has heard about—that work closely with victims and local authorities.

We are keen to ensure that potential victims of trafficking are identified as early as possible and are supporting this with an improved legal aid offer for victims of trafficking with no immigration status within the United Kingdom and subject to immigration removal. This is to ensure that individuals receive the correct support package at the earliest opportunity to address their needs, regardless of when cases are brought, to make sure that those who need protection are afforded it.

Lord Alton of Liverpool (CB)
My Lords, the Minister is dealing with these issues with great sensitivity and I welcome the tone of his remarks. He has—I think deliberately—left a number of questions hanging, saying that a lot of work is being done on this and that people are considering these sensitive and detailed questions and looking at them more thoroughly. This all begs the question: who has demanded this change in this legislation at this time, in advance of us having detailed information laid before us?

It seems that we have it the wrong way around. Given that his noble friend said earlier that there will be a Bill specifically to improve the modern-day slavery legislation, why cannot we hold this over until we see more clearly where the information is wrong, where it is right and what the evidence is? Is it not the nature of good government to look and examine the evidence before bringing measures forward? I do not see any evidence that this has happened so far.

Lord Stewart of Dirleton (Con)
My Lords, I do not wish to appear to give a cursory answer to the noble Lord in a debate of this sensitivity, but my noble friend Lord Wolfson of Tredegar committed to write on the data—I am grateful to the noble Lord for nodding his head in recognition. I imagine that the point he seeks to raise will be discussed in any such correspondence. Does that satisfy him at this stage?

Lord Alton of Liverpool (CB)
I am grateful to the Minister, but it seems to be the wrong way around. Normally, there is pre-legislative scrutiny of complex and sensitive issues, and this is a classic example where there should have been pre-legislative scrutiny, as there was before the 2015 legislation, in some detail and at some length. Why was it thought that in a Bill dealing specifically, as the noble Lord, Lord Deben, said, with nationality, borders and immigration, we should deal with an issue of this sensitivity? Would it not be better for the Government to withdraw this section of the Bill and come back with comprehensive legislation that we could all support?

Lord Stewart of Dirleton (Con)
My Lords, I hear the points that the noble Lord makes. With respect, it seems that he moves forward into a question already put to my noble friend Lord Wolfson of Tredegar when he stood at the Dispatch Box in relation to the earlier matter. As he advised the Committee, the Government are concerned about misuse of the system. Rather than seeking to anticipate data that I confess not to having, with the noble Lord’s permission, I will move on from this point. I am again grateful to him for nodding his head.

I was expanding to the Committee on matters raised by the right reverend Prelate the Bishop of St Albans. We recognise that potential victims may not feel able at an early point to discuss information relevant to these matters bearing on their experience. That is why, in Clause 58, we have included the safeguard of “good reasons”. Each case will be considered carefully, including any reasons for not bringing information earlier, which will enable decision-makers to take trauma into account.

I am sure that I am merely rehearsing matters already within the knowledge of the Committee, but examples of what may constitute good reasons for late disclosure of information include where the victim was still under the coercive control of the trafficker, did not recognise themselves as a victim at that point, or for reasons relating to capacity—intellectual, emotional or age capacity—did not understand the requirement or the proceedings.

We will set out our approach in guidance, giving decision-makers the tools to recognise the effect that traumatic events can have on people’s ability to accurately recall or share or recognise such events. We are concerned that by too prescriptively setting out the parameters of what can constitute good reasons in guidance, we will inhibit the flexibility of decision-makers to take a case-by-case approach, as my noble friend Lord Wolfson of Tredegar sought to emphasise in his submission to the Committee earlier, depending on a person’s specific situation and vulnerabilities.

14:15:00

I hope those remarks have gone some way to answer the points raised by the right reverend Prelate and my noble friend Lord Deben. I hope I have emphasised something which I am sure does not need to be shared across the House, as compassion for victims of these dreadful and wicked crimes is understood universally throughout the Committee, across party lines and in the House generally.

Baroness McIntosh of Pickering (Con)
I am anxious not to delay matters but to seek clarification at this stage. A number of noble Lords have raised concerns about why the burden of proof has been changed and the fact that, through this higher standard, a number of victims may not enter the system at all. I cannot believe it is the Government’s wish to prevent genuine victims of modern slavery and trafficking to be excluded from the process. My noble and learned friend gave a simple, clear clarification that it was to make the bar the same for both, but the fallout, in the view of legal opinion from practitioners who will be using this on a daily basis, seems to be that we will inadvertently exclude justified victims from the whole process. I cannot believe that this is the Government’s intention, where they are genuine victims.

Lord Stewart of Dirleton (Con)
I am grateful to my noble friend for her intervention, which permits me the opportunity of not only repeating what I said from the Dispatch Box earlier about the importance of decisions being taken on a case-by-case basis, but advising the House—perhaps I should have done so in answering the noble Lord, Lord Alton of Liverpool—that in addition we are providing enhanced support and training to first responders.

The rationale underpinning the change proposed in relation to burdens of proof is certainly not to seek to exclude persons who ought to receive help and assistance from receiving it. The Government’s wish is that all who are victims should receive assistance and all who are criminal should receive their due punishment.

Lord Deben (Con)
If that is the rationale, I do not see why we need the change. I seriously do not understand what possible advantage changing this could be, whereas I perfectly clearly see what the disadvantage is. Although the Minister seeks in the most effective way to present the Government’s case, the word “rationale” is not one I would have used I these circumstances.

Lord Stewart of Dirleton (Con)
My noble friend sends me back to the dictionary. I shall include the use of that word in my reading later, among the other things which I expect I will be asked to reflect on. I think we are—or maybe I am—guilty of mixing up two things. The reason for the change to the test to introduce the balance of probabilities is to align ourselves with our international obligations under ECAT. It is in order to avert any baneful consequences thereof that I made reference to the enhanced support and training which first responders will receive, and to the other measures which I discussed.

Lord Deben (Con)
I am sorry; I will not interrupt again. I still do not understand the rationale of bringing ourselves into line with our international obligations. We do not break our international obligations by going further than the international obligations, so we are already in line with them; all we are doing is withdrawing to what are, in many of our minds, unsatisfactory international obligations. Without getting into the Brexit issue, I very much agree with the right reverend Prelate when he suggested that we thought this was precisely what the Government did not want to do. I happen to want to do it but that is a different thing. I feel rather hit by this in both ways.

Lord Stewart of Dirleton (Con)
The justification is to ensure clarity across the legislation, and I appreciate the comment made by the right reverend Prelate, and rehearsed by my noble friend, about advantages flowing or not from the Brexit process, which so many of your Lordships will have discussed. However, our ability to act differently from our partners across the channel is a valuable one, but what we seek to obtain by this measure is legislative clarity and a consistency in decision-making which will, we hope, benefit victims and develop understanding among all the agencies in this important sector. My noble friend is resuming his mask, and he did say that he would not interrupt again, although I hope that he will not bar himself from further interventions later in the debate.

I turn to Amendment 157, tabled by the noble Lord, Lord Coaker. I thank him for his powerful and compelling opening contribution to this debate and to earlier debates on the topic, and for his work at Nottingham University. I offer the Committee reassurance that we are committed to providing victims with at least a 45-day recovery period, or until a conclusive grounds decision is made, whichever period is the longer. Our position is—I maintain that this does not need to be placed on the face of the Bill, and I return to the earlier discussions with my noble friend Lord Deben—that it would create a misalignment with our international obligations under ECAT.

Lord Coaker (Lab)
I thank the Minister for all of that, and the commitment to 45 days. Why does it say 30 days in the Bill? Have I got that wrong?

Lord Stewart of Dirleton (Con)
No, I think the noble Lord is correct. It is 30 days for the alignment with ECAT, but the 45 days appears in the guidance, and we commit to providing support over that period: a 45-day recovery period as expressed in the guidance, or until a conclusive grounds decision is made.

Lord Coaker (Lab)
So there is an absolute commitment to 45 days for the gap between reasonable grounds and conclusive grounds, even though legislation which we are going to pass says 30 days?

Lord Stewart of Dirleton (Con)
The noble Lord shrugged his shoulders, but I repeat that the justification for this is to align with our international obligations with our partners in ECAT.

Baroness Hamwee (LD)
My Lords, this did not stop us passing the Modern Slavery Act, which was ahead of the rest of the world.

Lord Deben (Con)
I am sorry to remove my mask, but I am told in the Climate Change Committee, of which I am chairman, that we have to have a British ETS which is not aligned with the rest of Europe because that is what we want. Why does it apply to climate change but not to modern slavery? On both of those issues we are in advance and wish to continue to be in advance. I do not understand this alignment element.

Baroness Ludford (LD)
Can I join the maskless crew? Surely international law, and certainly EU directives, are usually a minimum requirement, so if we wanted 45 days and a European instrument said 30, that is brilliant; it is better. It at least complies, so what is the problem?

Lord Stewart of Dirleton (Con)
I hear from all sides of the Chamber, including from the noble Baroness, Lady Chakrabarti—

Noble Lords
Oh!

Lord Stewart of Dirleton (Con)
Sorry, I do not mean once again from the Dispatch Box to rain brickbats upon the noble Baroness’s head.

Once again, I am not in a position to answer or explain myself on the basis of views taken by the Climate Change Committee, but in this context alignment with our ECAT partners was considered desirable.

I move on to Clause 60, which sets out the minimum time for the recovery period in line with our international obligations under ECAT. It provides us with the flexibility to set the operational practice as needed in guidance, which is important to reflect the changing needs of victims and the understanding of victims’ needs in a developing area of law.

In practice, in 2020 the average time for a conclusive grounds decision was 339 days. This long period stems from pressures on the system, which we are working to reduce through our transformation project to ensure that victims get certainty more quickly, but it is notably longer than the proposed 45-day minimum.

In light of this explanation and the assurance of continuation of the current support set out in guidance, I hope that noble Lords in the Committee agree that Amendment 157 to Clause 60 is unnecessary. I urge noble Lords to take the view that promotes clarity and to consider that the objective of making sure that we are aligned with our international obligations is such to prompt the noble Lord not to press this amendment.

Amendment 173, again from the noble Lord, Lord Coaker, seeks to introduce victim navigators for modern slavery and human trafficking victims in every police force in England and Wales. This matter was discussed in the Commons during the passage of the Bill. As was expressed on behalf of the Government, we are absolutely committed to ensuring that victims of modern slavery have the support they need when engaging with the police and through the criminal justice process.

As to the development that the noble Lord from the Front Bench advised the Committee of—that of victim navigators—we strongly support police forces using these NGO-led support models. Victim navigators are one model within that category. For that reason, we have commissioned independent research of three existing NGO victim support programmes, to help us better to understand what provision is in place and what effective support looks like for these victims. This will help inform advice to forces in the future about best practice and encourage national take-up of the most effective models of support. I also agree with the sentiment behind this proposed new clause that providing support to victims to help them navigate is something that can be studied and will inform advice to forces in future about best practice. We are already working to understand the most effective support measures, and we have made grant funding available to police forces and the GLAA to help identify and fill gaps in support.

I am grateful to the noble Lord for his nods of assent and for agreeing that the work already under way should be completed and will help us to develop an understanding of how best we can support victims in engaging with the criminal justice system. It is right that we conduct that evaluation before putting a specific model of support into legislation. That is why I resist this amendment at this time and invite the noble Lord not to press it.

14:30:00

Baroness McIntosh of Pickering (Con)
My Lords, it has been an excellent debate. I thank everyone for their contributions. I think there may be a question outstanding from the noble and learned Baroness, Lady Butler-Sloss, as regards children under the age of 18, but I take it as read that anyone aged under 18 would still be referred to the local authorities. I assume that my noble and learned friend will write to us if that is not the case.

Lord Stewart of Dirleton (Con)
I am grateful to my noble friend for that, and I beg the pardon of the noble and learned Baroness for not addressing her question directly. If she is content, I will have that expressed in writing to her.

Baroness Butler-Sloss (CB)
Certainly.

Lord Stewart of Dirleton (Con)
I am obliged.

Baroness McIntosh of Pickering (Con)
I am grateful to my noble and learned friend. He has endeavoured to be as full as possible in his response to all noble Lords. I express my disappointment that the guidelines are being changed in the way the Government envisage. I am slightly confused, because a lot of the situations for which this Bill makes provision would not have arisen if we had kept our international and European responsibilities under the Dublin convention, whereby we could have returned many asylum seekers to the first country in which they arrived.

It is a regrettable change. I do not think my noble and learned friend disagreed that a number of victims will be omitted from the system as a result. I will consider with others what to do at the next stage, but at this stage I beg leave to withdraw the amendment.

Amendment 156 withdrawn.

Amendments 156A and 156B not moved.

Clause 59 agreed.

Clause 60: Identified potential victims of slavery or human trafficking: recovery period

Amendment 157 not moved.

Clause 60 agreed.

Clause 61: No entitlement to additional recovery period etc

Amendment 158

Moved by

158: Clause 61, page 64, line 4, at end insert—
 “(aa) the person was aged 18 or over at the time of the circumstances which gave rise to the first RG decision;”Member’s explanatory statement
 This amendment seeks to preclude those exploited as children from being denied additional recovery periods if they are re-trafficked.

Lord Coaker (Lab)
My Lords, before I start my remarks on this group of amendments, I want to say in answer to the question asked earlier by the noble Lord, Lord Deben, that the problem the Minister has—and he has it all the way through this part of the Bill—is that what the Government do not like saying is that the reason they are doing this is not really to do with modern slavery. They are trying to sort out what they see as an immigration mess and the problem they have with everybody moaning about immigration, asylum and so on, and this has ended up in a Bill it should not be in. That is the problem. The noble Lord, Lord Deben, asked why we were doing this. The answer is, “because we think the modern slavery system is being abused and lots of people who shouldn’t be applying to it are applying to it, and they’re immigration offenders and not victims of modern slavery”.

What this Committee is saying is that it should not be in this Bill. Victims of modern slavery are being conflated with immigration offenders, and it will lead to the undermining of the Modern Slavery Act and the principles on which it is based, and to potential victims not receiving the support and help they need. That is the motivation for the Government in doing this. I do not think that it is the motivation for this Minister, which is why it is sometimes particularly difficult for him to answer the specific questions asked by the noble Lord, Lord Deben, as a one-nation Conservative—I think that is a compliment to him. The noble Lord has been trying to say to him that it was that brand of conservatism which drove the Modern Slavery Act. Perhaps the current Government—I can say this not as a lifelong Conservative—could learn from that. But that is a matter for internal grief and beyond the scope of this Bill.

I want to draw the Committee’s attention to the titles of these clauses. I will say something on Clause 61, “No entitlement to additional recovery period etc”, but there is a particular difficulty with Clause 62, “Identified potential victims etc: disqualification from protection”, which goes to the heart of the problem. Essentially, it is another way for the Government to say that potential victims of slavery are abusing the system to get round it because they are really immigration offenders. The Government are saying, “The system is being abused and we are going to stop it, and this is the way we’re going to do it”. The problem is that they are going to undermine the Modern Slavery Act and the modern slavery system that they have put in place, of which they should be proud, and indeed of which people—including all of us—are proud. It is that contradiction that goes to the heart of Part 5 in every single utterance, whether it is made from the Government Front Bench, the Opposition Front Bench or others in this Chamber.

I point out that Clause 62 does not even say “potential victims”; it talks about “identified potential victims”. No wonder there is such disquiet, upset and anger about this clause, which I will come on to in a minute. There are very real problems with Clause 61, but particularly with Clause 62, hence the amendments that I and other noble Lords have tabled, and the clause stand part notice.

Again, I come back to this question on Clause 61: what problem are the Government actually trying to fix that requires primary legislation? Again and again that has been asked by noble Lords across the Chamber without the Government really being able to answer—apart the noble Lord, Lord Wolfson, intimating the explanation I gave in his remarks on an earlier group.

The Explanatory Notes state that Clause 61 is there:

“In order to prevent the recovery period being misused by those wishing to extend their stay in the UK and to remove unnecessary support and barriers to removal”.
 

Again, that goes to the heart of it. The Government are seeking to change an immigration offence using a modern slavery context. It is a contradiction. It is not supposed to be like that. The whole point of the Modern Slavery Act was to take this out of the immigration context of the Home Office. That perennial battle between immigration and modern slavery is unresolved and requires parts of the Government to stand up and say, “You’re wrong and we’re not going to do that”.

What evidence is there of recovery periods being abused? That is of interest, I think, as evidence for the proposed change before us. What evidence is there of us providing “unnecessary support” to a person using the NRM? Re-trafficking has increasingly become part of the traffickers’ operating model, including where people return to their enslavers for fear of repercussions for their families, which we touched on earlier. How does Clause 61 respond to or break that model? Does not the refusal of a further recovery period simply strengthen the perpetrators? I think that is a real risk.

As the noble and learned Baroness, Lady Butler-Sloss, has asked on a number of occasions, will children be subject to the restrictions under Clause 61? Every single part of this Bill makes no distinction at all between adults and children. The Minister has experience of the legislative system, which, as a basis, divides children and adults on the grounds of good justice. Why is that not the case here? This is what Amendment 158 seeks to probe. Does the Minister have any figures for the number of children who go missing and are re-trafficked? Does he agree—again, the noble and learned Baroness, Lady Butler-Sloss, also asked this—that a missing child at risk of exploitation is a safeguarding issue, not an immigration or enforcement issue?

On Clause 62, the key question is what action, if any, the Secretary of State intends to take on the comments made by the Independent Anti-slavery Commissioner, who has written a scathing article in the Times today—note the word “independent” in the commissioner’s title. The headline says:

“Fears about bill that would take support away from some modern slavery victims”.

She has concerns about the way Clause 62 will operate and the wide way in which certain phrases in it could be drawn. Is it the Government’s intention to ignore the Independent Anti-slavery Commissioner, including where she says that Clause 62 will empower and embolden people traffickers and criminal gangs? Why is something that the anti-slavery commissioner says is harmful included in the Bill? Can the Minister also give further detail on how Clause 62 will operate in relation to children who are victims of criminal exploitation?

The lead signatory of Amendment 169 is the noble Lord, Lord Randall, but he cannot be with us today and has sent his apologies. The noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, have also signed it. Amendment 169 suggests to the Government that, if they are going to have Clause 62, which many would say should not be part of the Bill, this is a way they could redraft it to try to address some concerns. I personally would not keep Clause 62 but, instead of just a vague reference to a “threat to public order”, whatever that means, the amendment’s proposed new subsection (2)(a) inserts the words

“is prevented from doing so as a result of an immediate, genuine, present and serious threat to public order”,

rather than a wider definition.

Similarly, under

“Identified potential victims etc: disqualification from protection”,

we have put the words:

“in exceptional circumstances … following an assessment of all the circumstances of the case.”

Then there is the importance of international co-operation and the fact that we have also not included children. These specific points seek to address some of the concerns that have been raised by many groups and other noble Lords.

My Amendment 164A is to probe a specific question: where a person is covered by Clause 62, is it the Government’s intention that that person will still be entitled to and receive a conclusive grounds decision, as they do at present, or do the Government consider that the duty to investigate trafficking and exploitation no longer applies?

The criticism of Clause 61 and particularly Clause 62 is that, in the Government’s efforts to deal with what they perceive is an immigration problem, they are undermining the protection that the Modern Slavery Act gives victims. That view is held by many noble Lords in this Committee, many Members in the other place and the various NGOs that seek to inform our debates. I beg to move.

The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)
My Lords, I must inform the Committee that, if Amendment 160A is agreed to, I will not be able to call Amendments 161 to 163, by reason of pre-emption.

Baroness Ludford (LD)
My Lords, I want to speak to the JCHR amendments in this group in the name of the noble Lord, Lord Dubs. Those were very strong words from the noble Lord, Lord Coaker, and I found them extremely persuasive, including his remarks on one-nation conservatism. I see the noble Lords, Lord Fowler and Lord Deben, in their place, and I commend the speech of Sir John Major today, which I have followed a little on Twitter.

Amendment 159 was inspired by the JCHR and seeks to remove the discretion around whether a person who has a positive reasonable grounds decision and a conclusive grounds decision pending could avoid removal. Instead of saying that the competent authority “may determine” that removal should not take place, if that is appropriate in the circumstances of the case, we suggest it “must”.

Clause 59 has already changed the Modern Slavery Act so that we are talking about people who “are” victims of slavery or human trafficking, not those who “may be”. Therefore, it is surely right that such victims, who have been given an additional positive reasonable grounds decision for new or more recent slavery or trafficking allegations, must not be removed.

14:45:00

Indeed, in paragraph 76 of their ECHR memorandum, the Government say

“where … the Secretary of State will be required to make a new conclusive grounds decision on the new referral … the person will be protected from removal in the meantime, ensuring compliance with Article 10(2)”

of ECAT. However, Clause 61 does not accord with that, because it retains as a discretionary power the denial of protection from removal. That discretion should be removed from the Bill, in accordance with Amendment 179.

Amendment 162 amends Clause 62, which would deny protection assistance and support to and allow the removal of a victim who is a “threat to public order”. This could impede the UK’s ability to investigate and prosecute human trafficking and slavery perpetrators. The anti-slavery commissioner has expressed grave concerns at the wide net of that provision, the potential denial of the recovery and reflection period to a considerable number of victims and the consequence that prosecution witnesses may be unable to build rapport with law enforcement and provide evidence.

In her letter to the Home Secretary of last September, which my noble friend Lord Paddick quoted earlier, the anti-slavery commissioner quoted data from Hope for Justice, which said that

“of their current live caseload, 29% of individuals have committed offences that would meet the criteria for exemption under public order grounds. A further 13% have committed wider offences that may/may not meet the criteria for a public order exemption and 3% have a conviction but the details of this are unknown.”

Up to 45% of this organisation’s case load have or appear to have convictions. Excluding all those people is really being kind to criminal trafficking gangs. She gave a case study:

“In 2018 a Romanian trafficker was convicted … under the Modern Slavery Act … having trafficked at least 15 people from Romania … He received a seven year sentence and … a Slavery and Trafficking Prevention Order … Of the 15 potential victims identified, two provided statements to support the police investigation. One of these witnesses, whose evidence was significant in securing the conviction, had three previous convictions in Romania all of which attracted sentences in excess of 12 months”.

If the Government want to exclude from protection these victims, who might have criminal offences on their record, that means we will get fewer prosecutions and convictions of the perpetrators of trafficking and slavery.

The JCHR proposes that Clause 62 should be amended so that only a serious and ongoing threat to public order takes a victim out of protection. In fact, due to failings in the criminal justice system, victims are often forced to commit offences, such as on cannabis farms. In a recent Strasbourg court case, the UK was found to have failed in its duty to protect such victims. To be in line with its protective obligations under the ECHR and ECAT, the Government should accept at least amendment of Clause 62. Hence Amendment 168 provides that a person should not be considered a threat to public order if they were compelled to commit an offence, and Amendments 165 to 167 tighten up the provision in the Bill in other ways. The bottom line, as proposed by my noble friend Lord Paddick and the noble Lord, Lord Coaker, is that Clauses 61 and 62 are pernicious and should be removed.

The noble Lord, Lord Coaker, referred to the article by the anti-slavery commissioner, Dame Sara Thornton, in the Times today. She mentions the Joint Committee on Human Rights and she concludes:

“Ministers have assured that decisions to remove support from victims will be made on a case-by-case basis suggesting infrequent use. But why frame legislation that appears to remove protection from such a wide cohort of individuals if that is not indeed the desire? There might be exceptional circumstances in which it is right to withhold support when there is a genuine, current and serious threat to public order, but the present bill goes far beyond this.”

She gives us a hint:

“Parliamentarians have the opportunity to address this—I hope that they take it.”

I hope we will take it in our vote on Report. That is a very powerful warning, I think, from the anti-slavery commissioner and I hope the Minister will tell me how seriously he takes it.

Baroness Butler-Sloss (CB)
My Lords, I support all these amendments but I will speak to Amendment 169, to which I have put my name. I will deal with two other people apart from the anti-slavery commissioner who said that her gravest concern lies with Clause 62 above all the other clauses in this part of the Bill.

The United Nations rapporteur said:

“We are concerned that Clause 62(3) would be in violation of the State’s obligation to ensure non-punishment of victims of … forms of slavery for any unlawful acts … that are a direct consequence of trafficking.”
 

That, of course, is exactly what the Modern Slavery Act says in relation to people who commit offences if they are done in the course of being a trafficked person. So far as children are concerned, if they are under 18, they cannot be responsible for acts that they have done under the coercion of being a trafficking victim.

Perhaps of more significance to the Government is the issue of prosecution. Caroline Haughey QC, who advises the Government and regularly prosecutes traffickers—with great success I am glad to say—has described this Bill as catastrophic. She is a very successful QC. She is very measured and “catastrophic”, to my mind, is the most unusual word for a sensible prosecuting QC to use. She goes on to warn of the risks of losing witnesses for prosecutions because they have been guilty of offences themselves. We do not have enough prosecutions. It is an extremely serious matter that we do not have enough, and this clause is certain, if it is left in its original state, to reduce the number of prosecutions that Caroline Haughey and other QCs are trying to do in the criminal justice system.

I think again the Government ought to bear in mind why so many people who are victims have criminal records. It is perfectly obvious—they are much easier to identify and traffic, children as well as adults. They are the sort of people the traffickers go for because they know they are much less likely to come voluntarily to the public eye. They need protection against having been trafficked just as much as anybody who has a clear record. I implore the Government to think very carefully about this effect on prosecutions and the fact that criminals are very likely to be trafficked people.

Baroness McIntosh of Pickering (Con)
I am delighted to follow the noble and learned Baroness. The Committee has benefited greatly from her insightful comments on the background. This is a particularly murky world about which we are talking. People are in an extremely vulnerable and unfortunate position, and they may well be preyed on and further exploited by the very people I applaud the Government for trying to target.

I will speak briefly to Amendments 160 and 163 in my name. Amendment 160 is the key amendment; again, it is a concern raised by the Law Society of Scotland, which is keen to ensure that these provisions be brought to account only in exceptional circumstances. The reasoning for this—which follows very well from the discussion we have heard in this debate—is that Clause 62 excludes from the national referral mechanism persons who have committed criminal offences as well as other offences relating to terrorism. It excludes those who have claimed to be victims of terrorism in bad faith. However, it appears to divide victims into the worthy and the unworthy. Surely the Government must explain their reasoning behind this. In my view, and that of the Law Society of Scotland, no one should be disqualified from being a victim of one crime because they have been a perpetrator of another—precisely for the reasons that the noble and learned Baroness, Lady Butler-Sloss, gave us. Victims of trafficking could be criminalised for conduct relating to their trafficking. This is in breach of Article 26 of the Council of Europe trafficking convention. I cannot believe for a minute that this is the intention of the Minister or the Government in this regard.

The noble Baroness, Lady Ludford, referred to a recent court case; I do not know if it is the same one to which I will refer. A violation of Article 4 of the ECHR was recently found against the United Kingdom, in this regard, by the European Court of Human Rights in VCL and AN v the United Kingdom. For those who would like to research this further, the reference is application numbers 77587/12 and 74603/12.

I conclude with a question to the Minister. Does he not share my concern that the clause, as it stands and without reference to exceptional circumstances, introduces a high risk of a double punishment for those victims who have received convictions? Moreover, disqualifying certain victims from protection increases the prospect that they will be further exploited by organised criminal groups as they will be unable to access protection from the state.

The Lord Bishop of Bristol
My Lords, I have added my name to those of noble Lords who oppose Clause 62 standing part of the Bill. I echo remarks made by noble colleagues.

As the noble Baroness, Lady McIntosh, just said, Clause 62 goes to an essential point of principle in the entire operation of how modern slavery protections ought to work. The proposal is that Clause 62 makes victimhood a conditional state. In fact, it sets up a division between worthy and unworthy victims, as the noble Baroness commented. This would be such a retrograde step. If we are serious about destroying the business model of modern slavery and identifying and prosecuting as many slavers as we can, we must find ways of incentivising and supporting all victims to come forwards. By excluding from support those who have acted in bad faith—a term for which I greatly welcome more clarity from the Minister on what it would mean—or those deemed a threat to public order, we are creating two categories of victim.

15:00:00

Over the road in the General Synod of the Church of England debate yesterday, there was a plea not to be naive. As was said, traffickers and modern slavers are not stupid. They know how to use criminal exploitation to trap people into criminal activity, to scare them into not approaching the police. We know this from work on the ground. When speaking to support charities and victims in my role as lead bishop on modern slavery, I have heard often that one of the most effective ways to keep victims in fear is to force them to commit crimes so that they will be criminalised if they come forward to the authorities.

Life for legislators—indeed, for everyone—would be much easier if there were nice, clear binaries: blameless victims and evil enslavers. The reality, as anyone who has worked on the ground with those trafficked through county lines and many other forms of criminal exploitation can attest, is that things are not that easy. People who have done bad things can and often do become victims of slavery. People who have become victims of slavery find themselves compelled to do bad things.

In opposing Clause 62, I am not suggesting that people should not be held responsible for their actions. They should, but as a society we have responsibilities too and one of those is to break the way in which modern slavers operate. Creating a two-tier system of victimhood will, I fear, strengthen it.

Baroness Hamwee (LD)
My Lords, my name is on Amendment 160A, which is from these Benches. I fear that we are rather in lipstick on pigs territory—a phrase used a good deal earlier in our deliberations on the Bill. Clause 62 refers a “threat to public order”, which is then explained as various terrorism offences. It says that the list is not exhaustive, and I recognise what the Minister, the noble Lord, Lord Wolfson, said about how non-exhaustive lists are dealt with in the courts and that the longer lists are, the more rigorously they are dealt with. Our amendment refers instead to a threat to national security.

My noble friend Lord Paddick also has his name on the Clause 62 stand part notice and mine is on Amendment 169. I do not want to take the time of the Committee by repeating what has been said, very clearly, about activity “attributable” to being a victim of slavery or trafficking.

In the previous group of amendments, the Minister referred to an ability to recollect. I think, from other things he has said, in a sympathetic manner, he would agree that very often there is also, among victims, an inability to express—it is not just the inability to recollect. It might be worth saying—I am not sure it has been said before—that there is even more difficulty than in disclosing that one has been a victim of forced labour in disclosing that one has been a victim of sexual exploitation.

I agree with others about words such as “worthy” and “unworthy”. I noted “deserving” and “undeserving” —here we are again—like “deserving” and “undeserving” refugees and asylum seekers; that distinction is replicated here.

Lord Dubs (Lab)
My Lords, again, as a member of the Joint Committee on Human Rights, I shall speak very briefly. I should say how much I appreciate the contributions made by my noble friend Lord Coaker, by the noble Baroness, Lady Ludford, who is on the Joint Committee with me, and by the noble and learned Baroness, Lady Butler-Sloss, in her very powerful remarks.

Many years ago—if I may tell a little anecdote—I heard of a certain conversation that took place in the Home Office when an official was told by her boss to justify a certain position. The official said, “But that is indefensible”. Her boss said, “Yes, of course—defending the defensible is easy. You’re paid to defend the indefensible”. I say that as a word of comfort to the Minister, who is defending the indefensible. He knows it, we know it and the officials know it—and I suppose he has to do it, unless he does what the noble Lord, Lord Agnew, did and decides to distance himself from it.

I will say this very briefly. I find it hard to remember, and keep needing to remind myself, that we are talking about Part 5 of a Bill about modern slavery. Some of these issues are so remote from the rest of the Bill, as has already been said. The amendments to which I have put my name are concerned about a number of things. One is public safety and security. The amendments seek to get the right balance between public safety and security, which of course is important, and the rights of individuals who seek safety in this country. I contend that the Government, particularly in Clause 62, have got the balance quite wrong.

As the right reverend Prelate has already said, some of the people who are victims of traffickers or slavery are under threat; they are fearful, and the fact is that some of them at least will have been compelled to take up the position that they have taken up. We should respect that. These are frightened and anxious people, who are not secure and who do not know this country at all well. They may have been in this country for some time, or they may not have been, but they do not feel all that secure. We have to be sensitive to their situation, and I contend that what the Government are doing in this section, particularly in Clause 62, is to show insensitivity to some very vulnerable people—which is why I hope they will get rid of this provision, which does not make any sense at all.

Lord Stewart of Dirleton (Con)
My Lords, in opening from the Front Bench, the noble Lord, Lord Coaker, made a number of points in relation to the position of the Government in relation to the one-nation Conservative tradition, if I may put it like that. I will preface my remarks to the Committee by saying that, just as with our then coalition partners the Conservatives were in the forefront of dealing with the issue of modern slavery, so we were, hundreds of years ago, in dealing with the issue of slavery, as it then stood. Where slavery exists, Conservatives will always be found in the forefront of any attempts to confront it.

In relation to Clause 61, there is currently no policy on whether, or in what circumstances, individuals should or should not receive additional recovery periods under the national referral mechanism. Clause 61 addresses this gap by introducing a power to withhold additional recovery periods where an individual has already benefited from a recovery period and the further reported exploitation happened prior to the previous referral into the national referral mechanism, unless appropriate circumstances are set forth. This is not an attempt to create two tiers, however it may be read; rather, it is an attempt to put into legislation appropriate controls against misuse, where that misuse takes place.

Amendment 158 seeks to remove this power if any of the incidents of exploitation occurred when the individual was under 18 years of age. I seek first to reassure the Committee that the provision may be applied only when the further positive reasonable grounds decision arises from things done wholly before the previous reasonable grounds decision was made. Therefore, this power does not apply in cases of re-trafficking.

From the Front Bench, the noble Lord, Lord Coaker, like other noble Lords at an earlier stage, raised the question of why these provisions appear on the face of an immigration Bill. It is because there are overlaps between immigration and modern slavery, which the Bill recognises and seeks to address, but it also goes further in providing clarification on people’s entitlement.

As I said in relation to the previous grouping, and as I am sure we will all have occasion to say again, the complex nature of exploitation, as the noble Lord, Lord Coaker, identified in his opening speech and at other times in this debate, and the potential resulting safeguarding needs, particularly for children, are recognised by the Government. This clause is designed to allow for discretion in how decision-makers apply the disqualification, ensuring that the welfare of children will be taken into account. This discretion is an important part of our needs-based approach to the provision of support, and in the circumstances there is no need for the carve-out that the amendment proposes.

Moving on to Amendment 159, while we understand the intention behind this amendment, the existing discretionary element strikes the right balance between allowing decision-makers flexibility to grant additional recovery periods and preventing the misuse of the NRM protections to which I referred. Decision-makers will be able to consider the vulnerabilities and circumstances of the individual.

Turning to the amendments tabled by the noble Baroness, Lady Ludford, in relation to Clause 62, as noble Lords have outlined, ECAT envisages that recovery periods should be withheld on grounds of public order and improper claims. However, ECAT does not include a definition of “public order” and, to date, that omission has hindered our ability to disqualify suitable individuals in practice. The question was posed of whether the provision as it stands might impede operational decisions in relation to prosecution, but I submit that these decisions would be taken at all times in relation to that developing understanding of the pressures and difficulties. I fully appreciate that I am understating those things by using those expressions. Those pressures and difficulties are upon persons who are victims of modern slavery or human trafficking.

Lord Alton of Liverpool (CB)
I am grateful to the Minister. In Clause 62, the phrase “bad faith” seems extraordinarily ambiguous. Can he clarify that? What jurisprudence does this phrase come from and on what basis will it be interpreted in the courts?

Lord Stewart of Dirleton (Con)
I am grateful to the noble Lord for that intervention. I was proposing to deal later with the expression “bad faith” and its source, but, to help him at this stage, it is not drawn from any comparable legislation, nor from the authority of the courts. We do not hark back to that. Rather, the nature of the problems that must be confronted in relation to this is sufficiently protean and diverse that a need was identified to arrive at a broad expression in the Bill, and “bad faith” was the language selected after consideration among Ministers and officials to represent that.

Baroness Ludford (LD)
I am sorry to interrupt the Minister, but I now realise that he has now moved on from Clause 61 and is talking about Clause 62. I was wondering whether he was going to answer my point about incompatibility with the ECHR memorandum. That says that

“where the person’s previous conclusive grounds decision was negative, the Secretary of State will be required to make a new conclusive grounds decision on the new referral, and the person will be protected from removal in the meantime, ensuring compliance with Article 10(2) of ECAT.”

However, you are not protecting them from removal in the meantime under Article 61, as far as I can see, so how is the Bill compatible with the ECHR memorandum?

15:15:00

Lord Stewart of Dirleton (Con)
If the noble Baroness will bear with me, I will seek to get an answer to that question that I can deliver in the course of the debate—doubtless the Committee will remind me if I have not reverted to the noble Baroness by the time I sit down.

Amendments 160 and 162 do not define “exceptional circumstances” or “serious and ongoing” threat in relation to withholding protection from removal. As such, our view is that they would risk undermining the clarity which this clause seeks to provide and would make the power very difficult to use, meaning that potentially dangerous individuals would continue to receive the generous protections afforded by the NRM.

On Amendment 160A, Clause 62 specifies that disqualification applies when in the interests of national security, but it is right that the Government should also be able to withhold protections from individuals who pose a threat to public order more broadly, including where they have been convicted of serious criminal offences or have made a claim in bad faith, to use the expression that the noble Lord, Lord Alton, referred me to. I say that “bad faith” is appropriate in these circumstances because it is so broad and because it comprises so many aspects.

Baroness Chakrabarti (Lab)
I want to intervene briefly on the “good faith” and “bad faith” point, in case it is of assistance to the noble Lord, Lord Alton, and others. Concepts such as “good faith” and bad faith” are commonly used in civil and commercial matters; we understand that. In contracting matters, it is incumbent on parties to act in good faith, subject to the deal they have done with each other. Why I think the Committee is so concerned about what the Minister called the protean nature of the phrase here is that this is human rights protection, and we cannot afford to be protean or vague in the same way that we can when we are talking about how we enter into a contract. This is life and death.

Lord Stewart of Dirleton (Con)
The point I was seeking to make by that expression is, I think, the same one that my noble friend Lord Wolfson of Tredegar made earlier, when he spoke about this—it is as familiar to the noble Baroness as a practising barrister as it is to me, and I think it was referred to by the noble Baroness, Lady Hamwee. If we have a list that sets out heads A to E, and then counsel attempts to rely on point F which is not otherwise comprehended, or not specifically enumerated but which may be comprehended within the expression “or any other circumstance”, that always—as my noble friend Lord Wolfson said—places counsel at a disadvantage.

On the threats, or potential threats, and the potential scope for abuse which lie within the power of a person seeking to exploit and make a false application under these circumstances, what we are seeking to do is to identify a phrase or term which is sufficiently wide to encompass all those potential points. Noble Lords in the Committee have identified, under reference to the traffickers and criminals whom it is the intention of the entire Committee to thwart, their cunning, resilience and resourcefulness in finding ways to slip between the cracks of aspects of legislation.

Amendment 169 does not provide a definition of “public order”. I reassure the Committee that we adhere to relevant provisions in our international obligations but it is unnecessary to specify that in legislation, and we are satisfied that the current definition of public order complies with ECAT.

My noble friend Lady McIntosh of Pickering proposes that we replace the “bad faith” provision with one of “improper claims”. That proposal can be addressed in conjunction with Amendment 163, which seeks to remove the bad faith provision entirely. Another reason for the expression “bad faith”, and its breadth, is to avoid inadvertently excluding administrative mistakes made when submitting claims, which may be interpreted as falling under “improper claims”. We believe that “bad faith” is the appropriate language.

In answer to submissions made by the noble Lord, Lord Coaker, under Amendments 169, 161 and 164, which seek to exclude children from this clause, ECAT does not specify an age limit. We deem it important that the United Kingdom maintains the full scope while ensuring that all decisions to withhold the protections of the NRM are balanced against our priority to safeguard children. The proposal set out in these amendments would create, in effect, a two-tiered system that could encourage those looking to misuse the NRM protections to provide falsified information regarding their age. We all sat late enough the other night in relation to the age amendment provisions elsewhere in the Bill for me not to wish to go into that area again, but we are concerned lest the proposals in the amendment provide an opportunity for persons to provide falsified information.

In relation to Amendment 168, the Government are aware that potential and confirmed victims of modern slavery may already have been convicted of serious offences or be involved in terrorism-related activity. I make it clear that neither the additional recovery period nor the public order disqualifications can be taken as being a blanket disqualification. Any decisions relating to disqualifications will be taken on an individual basis, taking into account the individual’s circumstances and vulnerabilities. This includes consideration as to the nature of any criminal exploitation that may have been made of them and the need to safeguard individuals. We think it is right that further details of how to apply this discretionary element should be set out in guidance for decision-makers rather than being placed in the Bill. That will give the Government the flexibility to meet the needs of victims and respond to changing patterns of criminal activity that may seek opportunities to misuse the NRM.

We do not consider that Clause 62 will present a barrier to people who have had convictions and prevent them coming forward, because of that discretionary approach and because there will not be a blanket disqualification on the basis of public order. All of us—the whole Committee, I am sure—want victims of modern slavery to continue to come forward for identification and support, irrespective of their personal circumstances or the circumstances in which they came to be exploited. However, we maintain that it is right that the Government can remove individuals who pose a threat to public order from the protections and support that the NRM affords.

Together with the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Ludford, was concerned lest such victims did not come forward if they had criminal convictions. First responders should still always refer victims into the national referral mechanism, in line with modern slavery statutory guidance, even where the individual has had a previous recovery period or has a criminal conviction. Decision-makers trained in the field will then carefully consider each individual case and take into account specific vulnerabilities and the needs of each individual, again on a case-by-case basis.

The recovery period may be withheld following a reasonable grounds decision, and the rights that flow from a conclusive grounds decision may also be withheld at that stage if relevant disqualifications apply. I emphasise that we will carefully consider each individual case to ensure that people who genuinely need protection and support will receive it. I reiterate that it is right that we should be able to withhold rights from individuals where appropriate—for example, from those who pose a national security risk to the United Kingdom.

I return to the matter raised by the noble Baroness, Lady Ludford, in relation to compatibility with the European Convention on Human Rights. The protections of the NRM will be withheld in accordance with Clause 61 only when so to do would be compliant with our international obligations—

Baroness Ludford (LD)
I am glad to hear that the Government want to comply with our international obligations—some of us feel that that is not entirely evident from the Bill—but I was asking about compatibility with the European convention against trafficking. Clause 61 allows “a competent authority” to remove someone even when a conclusive grounds decision is pending. I am sorry to repeat myself, but the European Convention on Human Rights memorandum, produced presumably by the Home Office for the Bill, says at paragraph 76.d:

“the Secretary of State will be required to make a new conclusive grounds decision on the new referral, and the person will be protected from removal in the meantime, ensuring compliance with Article 10(2)”.

That is not what Clause 61 does; it allows the Government to remove the person. They are not “protected from removal” pending a new conclusive grounds decision, so the ECHR memorandum and the Bill are in direct contradiction. Can the Minister take further advice and answer that point? If he cannot do so today, I am sure that he will be able to write to me. I am pretty sure that this was identified by the Joint Committee on Human Rights, which is why we wanted to change “must” determine the person’s removal to “may”, so that there is wiggle room that might be in compliance with ECAT. On the face of it, I cannot see that this provision is compliant, notwithstanding the assertion in the memorandum that it is.

Lord Stewart of Dirleton (Con)
The noble Baroness graciously affords me the possibility of replying perhaps in more detail and later. Unless I have further information to provide to her, I propose to take that course. I am obliged to her for her consideration.

In relation to how to assess whether a person is involved in terrorism-related activity or is otherwise a national security concern, the Government have extensive experience of assessing these things, together with our operational partners, and using these assessments to inform executive decision-making.

Whether there are reasonable grounds to suspect that a person is or has been involved in terrorism-related activity is a crucial part of consideration for public order disqualification. Amendment 165 would weaken the United Kingdom’s ability to withhold protections from people of terrorism concern, and we therefore consider that it would increase the risk to the national security of the UK.

Regarding Amendment 166, NRM referrals for foreign national offenders and foreign nationals held on remand are rising, with an average of 85 per month for the first five months of 2021, compared to 19 per month in 2018. It is right that foreign nationals who have been convicted of the serious offences referred to in Section 32 of the UK Borders Act 2007 should be included within scope for consideration of the public order disqualification. This ensures that we will have a clear definition provided for in legislation to support decisions.

15:30:00

Finally, referring to Amendment 164A, I reassure the Committee that the Government are committed to identifying possible victims promptly and providing needs-based support that we hope will aid their recovery. This clause is in line with ECAT, and as such we consider that the requirement to make a conclusive grounds decision can fall away in the event of disqualification on grounds of public order or improper claims.

We will set out the detail of matters in guidance, but again I assure the Committee that trained decision-makers will consider carefully the full circumstances of each individual case, consulting with relevant stakeholders and considering all the relevant information, including weighing national security considerations against whether any potential interference with protected rights is proportionate.

I omitted to recognise the right reverend Prelate the Bishop of Bristol’s contribution to the matter of “bad faith”. I hope that she will forgive that omission.

I hope, for the reasons outlined, that noble Lords will be content not to press their amendments at this stage.

Lord Coaker (Lab)
My Lords, I thank the Minister for his typically courteous and thoughtful reply, and the way in which he attempted to answer every question put to him by noble Lords across the Chamber. We are very grateful and that was well received by everyone. I believe, however, that there is a very real problem at the heart of the Bill, with respect to Clause 61 and particularly Clause 62, notwithstanding his reassuring words.

It remains on the face of the Bill that an identified potential victim can be disqualified from the section if they are a threat to public order, or they have given information in bad faith. As noble Lords have said, there is no real clarification, notwithstanding the Minister’s response, on what a threat to public order means. We can see from what has been said, by many of the organisations that made representations, including lawyers and the Independent Anti-slavery Commissioner, that a threat to public order can include very minor offences. The Minister says, “Don’t worry, the decision-makers understand that Clause 62 does not apply if they are minor offences”, but that really is not good enough. It should be on the face of the Bill; it should be clearer, in primary legislation, what a “threat to public order” means—and indeed “acting in bad faith”. What on earth does “acting in bad faith” mean? That is usually something people use when they cannot think of anything else—“That’ll do, that will be something we can say because it encompasses everything.” It is not good enough, in primary legislation, to legislate in that way.

The purpose of the amendments that have been tabled, and the debate that has been had in Committee, will cause the Government to have to think again and, at the very least, be clearer in what they actually mean with respect to where they are going to disqualify somebody from protection when they are an unidentified potential victim.

The last point I will very quickly make is that there is real issue with respect to children. Both this Minister and the Minister who responded to the earlier groups say again, “Don’t worry, there is nothing to worry about. We understand the particular needs of children”. I say again that in virtually every area of government a distinction is made between adults and children, for obvious reasons. It beggars belief that it is not done anywhere in this Bill. We will come back to this at Report, but I thank the Minister for his reply and, with the leave of the Committee, withdraw the amendment.

Amendment 158 withdrawn.

Amendment 159 not moved.

Clause 61 agreed.

Clause 62: Identified potential victims etc: disqualification from protection

Amendments 160 to 169 not moved.

Clause 62 agreed.

Clause 63: Identified potential victims etc in England and Wales: assistance and support

Amendment 169A

Moved by

169A: Clause 63, page 66, line 10, leave out from “their” to end of line 12 and insert “physical, psychological and social recovery or to prevent their re-trafficking in accordance with Article 12 of the Trafficking Convention.”
 Member’s explanatory statement
 This amendment would define the objective of assistance and support in line with Article 12 of the European Convention on Action Against Trafficking in Human Beings 2005.

Lord McColl of Dulwich (Con)
My Lords, I should declare an interest in that I presented the original anti-trafficking and anti-slavery Bill as a Private Member’s Bill to your Lordships, and your Lordships very kindly passed it in all its stages, thanks to the support of the whole House. I then sent it to the then Prime Minister, Theresa May, who made it a government Bill and made it comprehensive, with the support of many people in both Houses.

I wish to speak to the amendments in my name to Clauses 63 and 64, on support and leave to remain respectively. While I believe that issues of modern slavery should not be in an immigration Bill, we must nevertheless use the opportunity to improve the care provided to approximately 100,000 victims of modern slavery in the UK. These individuals deserve the opportunity to rebuild their lives. We have the potential to give them the support needed to ensure that each victim becomes a survivor.

Your Lordships will know that I have long argued, through my Private Member’s Bills, that support for victims in England and Wales during the so-called recovery period should be statutory, as it has been in Northern Ireland and Scotland since 2015. I very much welcome the Government addressing this matter at last in Clause 63. However, I have three concerns about Clause 63 which my Amendments 169A, 170 and 170A address. I thank the noble Lords, Lord Alton, Lord Paddick and Lord Coaker, for their support for these amendments.

First, in Clause 63, proposed new subsection (2) of the new clause restricts support only to that necessary to assist with recovery from the conduct that resulted in the “positive reasonable grounds” decision in question. This is more restrictive than in Northern Ireland and Scotland. How do the Government intend to identify the harm caused directly by exploitation? Why have they decided to restrict the support in this way?

Article 12 of the Council of Europe Convention on Action against Trafficking in Human Beings, known as ECAT, requires states to provide various support to assist victims in their physical, psychological and social recovery. ECAT does not restrict support and assistance to only those matters that relate to a person’s immediate exploitation. Amendment 169A would amend the wording so that it is in line with ECAT.

Secondly, Clause 63 is not clear on the scope of support, and Amendment 170A would define the types of assistance and support to be provided in line with ECAT obligations. The Government said in another place that a list of what support should be available is not needed, even though such a list does exist in Scotland and Northern Ireland. While individual victims will have different needs and requirements, there still needs to be a framework, which Amendment 170A would provide. The Joint Committee on Human Rights asked whether the support provided will cover all the elements required by Article 12. I look forward to hearing confirmation from the Minister that it will.

My third concern is the lack of support once a person is identified as a victim, something I have been campaigning on with the support of the Free for Good movement, a coalition of 27 organisations which believe that long-term support is essential to a victim’s recovery. Without it, already vulnerable individuals are at risk of homelessness, destitution or even re-trafficking, as has been mentioned.

I welcome the assurance given by the Government on Report in another place, and reiterated here at Second Reading, that 12 months’ support will be provided to confirmed victims in England and Wales. However, to date the Government have not brought forward an amendment to ensure that this support is on a statutory footing, nor set out any details of what that might involve, saying instead that the details will be in guidance. The support needs to be more than an extension of current arrangements under the Government’s recovery needs assessment.

Amendment 170 would put the Government’s commitment to 12 months’ support in the Bill. The cross-party support for this amendment is both indicative and representative of an understanding across the House that long-term statutory support is vital in order to assist victims of modern slavery in their recovery. The problem with it not being in the Bill is that it gives the Government what one could describe as wriggle room. We do not know when the guidance will be issued, nor what it will say; by the time we do, we will have missed a valuable opportunity to make a significant difference to victims.

Clause 63 already puts support during the recovery period on a statutory footing. Amendment 170 is a simple extension to Clause 63 to put in a support provision after a person has been confirmed as a victim of modern slavery. I urge your Lordships to support Amendment 170 to ensure recovery, prevent re-trafficking and enable victims to work with the police to restrain the perpetrators responsible for their abuse. I sincerely hope the Minister will be able to tell the House that he will be tabling an amendment on this matter on Report.

I turn to my Amendments to Clause 64. The Government are putting the current discretionary leave-to-remain criteria on a statutory footing. In principle, that is welcome—except that, in doing so, they have made them narrower than the current guidance. We are taking one step forward but two steps back. I also want noble Lords to realise that very few victims who apply actually get that leave, so Clause 64 falls short of what victims really need. The Government have already recognised the need for confirmed victims of modern slavery to receive 12 months’ support. However, those individuals need leave to remain in order to access that vital support.

My Amendment 170B would ensure that anyone receiving support after being confirmed as a victim of modern slavery would be granted temporary leave to remain. My Amendment 171A would ensure that the leave would be for the length of time that support is being provided or for at least 12 months if granted under Clause 64. Without these amendments, long-term support is a mirage. It is something that confirmed victims who are non-UK nationals desperately need but, without immigration status, cannot access. They will also help the Government achieve their aim of increasing the prosecutions and convictions of perpetrators of modern slavery. Without clarity about their immigration status, victims are fearful, potentially subject to re-trafficking, and hesitant about engaging with the police. Amendments 170B and 171A would enable the Government to be firm on criminals who are profiteering off the exploitation and abuse of victims.

15:45:00

The Government have said that individuals abuse the system and make fraudulent claims about being a victim of modern slavery to avoid deportation. It is crucial that one understands that the individuals who would be receiving leave to remain are those who have gone through the Government’s own processes and been confirmed by the Home Office as genuine victims of modern slavery. These are not individuals abusing the system, as the noble Lord, Lord Coaker, has already mentioned. I urge noble Lords to support Amendments 170B and 171A.

I also support Amendment 171B from the noble Lord, Lord Morrow, and Amendments 171 and 172 from the noble Lord, Lord Dubs. These amendments would bring a better outcome for victims.

In closing, I urge your Lordships to recognise that 12 months of statutory support, and 12 months’ leave to remain to access that support, are vital to enabling a victim of modern slavery to recover and to engage with the police. I will quote my friend, the noble Lord, Lord Boateng, who told me the other day about a Zulu exhortation: “Vukuzenzele”, which noble Lords will know from their Zulu studies means “Just get on and do it.” The Government should just get on with providing confirmed victims the support and leave to remain which we already know they need. I shall listen carefully to the Minister’s response and will come back with further amendments on Report depending on what she says. I thank all those who will be taking part in this debate. I beg to move.

Lord Alton of Liverpool (CB)
My Lords, with his usual clarity, the noble Lord, Lord McColl, has introduced his amendments to Clauses 63 and 64. I regard it as one of the privileges of serving in your Lordships’ House to have become a friend of the noble Lord, Lord McColl, over these last 20 years. I not only deeply admire everything he has done on the issue of human trafficking but have seen first-hand some of the extraordinary work he has done with Mercy Ships, where he has given so much of his life and time as a notable surgeon. I have no hesitation today in echoing the remarks he has made to your Lordships’ Committee. I am not sure I can echo the Zulu remarks he quoted, but I think Nelson Mandela once quoted a Zulu saying about “ubuntu”, meaning “brotherhood”, that

“we are only people because of other people.”

In many respects, that goes to the heart of what we are trying to express in these debates and amendments today.

Statutory support for victims in England and Wales during the time they are in the national referral mechanism—the recovery period—which was the subject of Amendments 156A and 156B, which I spoke to earlier, is long overdue. We are seven years behind Northern Ireland and Scotland, and I welcome the Government catching up with the rest of the UK. I would like to say with the noble Lord, Lord Morrow, in hearing distance that I deeply admire what he managed to achieve in Northern Ireland, and I look forward to hearing what he has to say about his Amendment 171B, which, again, I associate myself with. Indeed, I support all the amendments in this group.

I draw the Committee’s attention to the current version of the statutory guidance on victim support in England and Wales, which says:

“The Modern Slavery Victim Care Contract operates as a bridge, to lift adult victims out of a situation of exploitation and to set them on a pathway to rebuilding their lives. As such, it is important that no support provided through the Modern Slavery Victim Care Contract prevents potential victims or victims from accessing support they would otherwise be entitled to receive.”
 

The statement about what a victim is entitled to receive goes straight to the heart of Amendments 169A and 170A.

Under the Bill, what do the Government intend to provide in terms of support? The noble Lord, Lord McColl, said that without support, the Bill simply becomes a mirage—a good metaphor to use. What are the Government going to do to provide support during the recovery period? Will the support be in line with Article 12 of the European convention? Both Ministers talked earlier about the importance of compatibility in these areas. But, as the noble Baroness, Lady Ludford, said, we seem to pick and choose what we want to have compatibility with and what we do not.

The frequently referred to and admirable Joint Committee on Human Rights recently published its review of Part 5 and highlighted that

“clause 63 (new section 50A MSA) does not specify details as to what ‘any necessary assistance and support’ should include, leading to some ambiguity”—

a word I referenced earlier in connection with being in good faith—

“as to whether clause 63 (new section 50A MSA) will indeed adequately give effect to the UK’s obligations under Article 12 ECAT to provide the types of assistance specified in that Article.”
 

It is worth recording in Hansard what the Committee said:

“The Secretary of State should confirm whether ‘necessary assistance and support’ will include all of the types of assistance listed in Article 12 ECAT”.
 

We will all listen closely to the Minister’s response to these amendments and specifically on that point about whether the support will be in line with Article 12 of the European convention.

I have also co-signed Amendment 170. As I have already said, the stated objective of the Government’s support to victims is

“to lift adult victims out of a situation of exploitation and to set them on a pathway to rebuilding their lives.”

Who could disagree with that? All the evidence from those working with victims is that this goal is far from completed when a person is confirmed as a victim of modern slavery by the Government. To continue on the pathway to recovery, as the Government themselves have acknowledged, a victim needs much longer support.

The noble Lord, Lord McColl, has been making that case for many years in your Lordships’ House and I have been happy on previous occasions to give him support. 1am glad that he has taken the opportunity provided by the Bill today. If the Minister cannot agree to incorporate this now, will he tell the noble Lord, Lord McColl, and Members of your Lordships’ Committee that, when the putative legislation that was referred to earlier in this area is brought forward, it will at least be attended to then? I am glad that the Government have recognised the need, but they should now act to bring their commitment into a concrete reality.

I also want to touch briefly on the amendments to Clause 64 in the name of the noble Lord, Lord McColl, which seek to give victims who are eligible for support leave to remain. It is not just the right thing to do for these individuals, it makes policy sense to ensure that we are able to bring perpetrators to justice. It has been said again and again, by the noble Lord, Lord Coaker, the noble Baroness, Lady Hamwee, and others who have re-emphasised this throughout today’s debate. Without evidence from victims, cases are much harder to prosecute. Here is an interesting point: it also makes economic sense.

A 2019 report from the University of Nottingham, which the noble Lord, Lord Coaker, will be well aware of, on an earlier version of the Modern Slavery (Victim Support) Bill introduced by the noble Lord, Lord McColl of Dulwich, showed that his Bill was “value for money”. I hope that the Minister’s officials have drawn that report to his attention, so I ask him: why would the Government not support the amendments in the name of the noble Lord, Lord McColl, and give this vital support to victims of modern slavery?

Lord Morrow (DUP)
My Lords, I thank the noble Lord, Lord Alton, for his kind remarks. For victims of modern slavery, escaping from their exploitation is only the beginning of their journey towards recovery. I will direct my remarks today to Amendment 171B in my name, which would assist victims on this journey.

I have been astounded by the individuals whom I have come across over the years, particularly those who I had the privilege of meeting during the passage of my Private Member’s Bill in the Northern Ireland Assembly who have been victims of modern slavery in this country. These victims have experienced extreme exploitation and abuse in this country yet have shown commendable fortitude and strength in their determination to recover from their ordeal. When I consider Part 5, and in particular Clause 64, it is those individuals I think of. It concerns me that Clause 64, if unamended, will make the leave to remain criteria narrower and, in doing so, make vital support for survivors even more inaccessible.

Clause 64 will impact victims of modern slavery across the UK, yet there has been no impact assessment published to date—at least, I have not had sight of it—on how many victims will be granted leave to remain under the Bill, compared to the current numbers. I hope the Minister can address why this is the case and provide a timeframe for when we can expect to see one.

Previously, I had the opportunity to meet Anna, a young Romanian girl who was kidnapped here in London, trafficked to Galway and then moved to Belfast to be sold into the sex trade. This young girl was moved from pillar to post, to be exploited in one place then another. The only consistency she knew was exploitation. When victims like Anna escape from their situations of exploitation, they need stability and certainty as they start their recovery and begin to work through their trauma.

I am concerned that whilst Clause 64 puts discretionary leave to remain measures on a statutory footing, in the process of doing so the Government have made the criteria much narrower than current guidance. In particular, Clause 64(4) would prevent leave to remain being granted to a confirmed victim on the grounds of their need for support for their recovery, if they could receive that support elsewhere—even when the alternative country is not a signatory to the European trafficking convention. The Government have also not set out which countries without ECAT would be acceptable. This restriction is likely to affect EU citizens who have recently become entitled to automatic consideration for discretionary leave if they have no other right to remain, since the Secretary of State is likely to argue that these citizens could receive support within the EU. It sounds very much as if the Government are unfairly trying to skirt their moral duties and responsibilities to these victims. This goes to the point that, contrary to what the Government have said, this Bill is not fair for victims of modern slavery.

Amendment 171B in my name would ensure greater stability by removing the criteria of not granting leave to remain if assistance could be provided or compensation sought in another country. Without this amendment victims such as Anna, upon exiting their situation of exploitation, could find themselves without leave to remain and instead relocated to another country where they may not know anybody, speak the language or understand the customs. This will be disorientating, unsettling and frightening, and it will compound their vulnerability to re-trafficking.

I agree with the noble Lord, Lord McColl, and Sir lain Duncan Smith MP in the other place on the need for 12 months’ leave to remain to ensure that all confirmed victims can receive support, as proposed in the noble Lord’s Modern Slavery (Victim Support) Bill. I put on record my support for Amendments 170B and 171A in the name of the noble Lord. While Amendment 170 to Clause 63 in the noble Lord’s name applies only to England and Wales, I am pleased to see that steps are being taken to provide statutory support to confirmed victims in Northern Ireland. Through Section 18(9) of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, statutory support is already available to victims with a positive conclusive grounds decision on a discretionary basis.

16:00:00

I want to draw attention to the fact that the Northern Ireland Assembly are currently considering the Justice (Sexual Offences and Trafficking Victims) Bill. In Committee, it has been recommended that support be given to victims

“following a positive Conclusive Grounds decision to enhance protection from re-trafficking and assist in their recovery and engagement with the criminal justice agencies to help secure increased convictions.”

Amendments will be debated next week. The recognition of the principle of the need for long-term support for victims is greatly encouraging and I will be watching closely as this Bill progresses through the Assembly. Perhaps Westminster could learn from the Assembly which, in the early stages of deliberation, acknowledged that 12 months’ support should be in legislation; there is no discussion of this being put only in guidance.

However, should the Assembly agree, this statutory support will be limited to those confirmed victims who are British citizens or who have leave to remain, as is the case with the statutory discretionary leave provision under Section 18(9). It will be devastating for non-UK-national victims if the hands of the Northern Ireland Assembly are tied in the provision of long-term support to them because the Government will not grant the requisite leave to remain for them to access this vital long-term support. Flourish, a charity in Northern Ireland which supports victims of modern slavery once they have exited the NRM, has said that its objective is

“empowering survivors so that they can take back control of their own lives”.

That is what long-term support is all about. Narrowing the criteria for grants of leave and failing to provide 12 months’ leave to remain to confirmed victims without immigration status make it even more difficult for victims to take back control of their lives and become survivors.

We also know that it takes time for victims to trust authorities and begin to engage with police investigations; this does not happen overnight. Without 12 months’ leave to remain, victims will not have the stability or consistency in their lives to begin to comprehend their abuse, disclose it and in time start to engage with police investigations. Without Amendments 170B and 171A, convictions will thus remain low and the perpetrators of this heinous crime will continue to go unpunished.

I would also like to put on record my support for Amendment 171 in the name of my noble friend Lord Dubs. As it stands, Clause 64 also narrows the criteria for granting leave to remain to what is considered necessary to assist in the recovery from harm directly caused by this exploitation. The Joint Committee on Human Rights raised this issue in its report of 15 December, saying

“It would seem that clause 64(2)(a) is drawn a little more narrowly than the obligation in Article 14(1)(a) ECAT. ‘Personal situation’, could, for example, relate to family relationships and support networks in the UK or other factors relevant to the ‘personal situation’ of the victim that would not be covered by clause 64(2)(a).”

It recommended that the wording reflect the Article 14 obligations.

The Government are acting as an obstacle, rather than an aide, when it comes to the provision of support to confirmed victims of modern slavery in Northern Ireland and the prosecution of offenders across the UK. Victims need a stable pathway which equips them to recover from their exploitation and not be defined by it. We must keep working to ensure that the UK is known as a hostile place for traffickers, where this exploitation will not be tolerated and will not go unpunished.

Perhaps before I sit down I should say that it may not be possible for me to hear the Minister’s response as I have to be back in Northern Ireland this evening and the time on my boarding pass is getting closer by the second. I apologise in advance if that is the case.

Baroness Hamwee (LD)
My Lords, my noble friend Lord Paddick has his name to Amendment 170. I know that he—I join him in this—is always pleased to have an opportunity to support the noble Lord, Lord McColl of Dulwich. Given that we are now past 4 pm, which, in the terminology of this House, was to be the lunch hour, I will not say anything more on this amendment. I hope that noble Lords can read between the lines.

Similarly, I particularly support Amendment 171A in the name of the noble Lord, Lord McColl, for reasons to which the noble Lord, Lord Alton, referred.

Finally, when I bumped into the noble Lord, Lord Morrow, the other day, I said, “I don’t know what you’re going to say but I’ll support you”. He said, “I thought you would”.

Baroness Ludford (LD)
My Lords, we have been quicker than I anticipated but what my noble friend said is true; I must admit that I am starving.

I will speak to Amendments 171 and 172 from the JCHR, in the name of the noble Lord, Lord Dubs. They aim to remove the worst of Clause 64. Leave to remain is important for victims who are vulnerable to destitution and further exploitation without welfare benefits and other entitlements but, according to the anti-slavery commissioner, the number of victims being granted discretionary leave is very low. In 2015, it was 123. In 2019, it was 70. In the first three months of 2020, it was only eight; we do not have statistics for the whole of 2020-21.

Being granted leave can improve mental health by offering stability and thus a chance of recovery, but the equivalent reference to assistance and support in the Modern Slavery Act reads “physical or psychological harm”; that includes social harm. This Bill would put the law out of line with that and raise real doubts about compatibility with Article 14 of ECAT, which uses the phrase

“necessary owing to their personal situation”.

That is wider than what is in Clause 64(2)(a), which is why I commend Amendment 171 to the Committee. I was pleased to hear the noble Lord, Lord Morrow, refer to the JCHR’s report; he also mentioned the importance of family relationships.

Amendment 172 aims to rectify the omission from Clause 64 of any consideration of the best interests of the child so as to make it compatible with ECAT and the UN Convention on the Rights of the Child. I seem to have mixed up my notes; I am sorry about that because I will now go back to Amendment 171.

In a case last year, the High Court held that refusing to grant discretionary leave while a slavery victim’s asylum application was being processed violated Article 14 of the European Convention on Action against Trafficking. It appears that, before amendments were made in the other place, Clause 64(2)(a) included a reference to the victim’s social well-being as well as their physical and mental health. However, it was removed on Report. Can the Minister explain why? Would the Government like to rectify this omission in the Bill regarding personal, situational and social harm so as to make me, the noble Lord, Lord Dubs, and the JCHR very happy?

Lord Coaker (Lab)
My Lords, in the interests of time, let me just say respectfully to the noble Lord, Lord McColl, whose amendments I have signed, that I very much support him and the arguments and points that he made so well. We look forward to the Minister’s response. I pay tribute to the doughty work the noble Lord has done over a number of years to try to move the Government in what many of us regard as a simple and sensible way forward. Let us hope.

I shall speak to my Amendment 171AA. Clause 64 provides for limited leave to remain

“if the Secretary of State considers it is necessary for the purpose of (a) assisting the person in their recovery from any physical or psychological harm … (b) enabling the person to seek compensation”—

unless this can be done outside the UK

“or (c) enabling the person to co-operate”

with law enforcement. The standard, however, does not meet the UK’s obligation to children under the Council of Europe’s Convention on Action against Trafficking. Article 14.2 of ECAT specifies that in the case of children, residence permits

“shall be issued in accordance with the best interests of the child.”

Paragraph 186 of the Explanatory Report to ECAT explains that

“the child’s best interests take precedence”.

Amendment 171AA, which is a probing amendment, simply asks why the Government cannot include leave to remain where children are protected and where it is in the best interest of the child.

Lord Stewart of Dirleton (Con)
My Lords, in consideration of the flight of the noble Lord, Lord Morrow, I start by addressing Amendment 171B. ECAT sets clear parameters around when a signatory state is obliged to grant a residence permit to confirmed victims, which is where it considers that the stay is necessary either due to the confirmed victim’s personal situation or for the purpose of their co-operation with the competent authorities in an investigation or criminal proceedings. The Government have gone further than this and provided for a grant of leave not only on both of these bases, but also where it is necessary to enable a confirmed victim to seek compensation in respect of their exploitation.

A temporary leave provision is deliberately designed to allow for leave to be provided for as long as needed, where appropriate. It will be considered on a case-by-case basis and does not set an arbitrary time period. To specify a length of leave does not follow our overall approach of having a truly needs-based approach to addressing victim support. If it is necessary for leave to be granted for longer than 12 months in order to pursue a thorough investigation, or where an individual’s personal circumstances require it, leave can and should be granted.

I turn next to Amendments 169A, 170 and 170A. In Clause 63 we have sought to define the support entitlement during the recovery period for potential victims following a positive reasonable-grounds decision. Amendment 169A, however, would remove clarity on what these terms mean for victims and decision-makers and reduce the effectiveness of the clause in supporting victims. Our approach to the wording of Clause 63 has been chosen specifically to provide more detail on the circumstances in which support is provided, while being in line with our international obligations. Our approach is not to go into detail on the types of support provided for in legislation, as Amendment 170A suggests, but to do this in guidance, the purpose being to ensure flexibility in our approach in future, so this can be tailored to victims’ needs as our understanding of trauma develops. I refer your Lordships to remarks made earlier in the debate that understanding the impact and the effect of trauma on individuals is an ongoing and developing thing.

Further to this, and in response to a matter raised by the noble Lord, Lord Alton of Liverpool, where necessary, all those who receive a positive conclusive-grounds decision and are in need of tailored support will receive appropriate individualised support for a minimum of 12 months. We committed to this in the other place and will consider where and how this commitment is delivered to ensure that it delivers best for victims. More details will be provided in guidance or in future modern slavery legislation, should parliamentary time allow. My noble friend Lord McColl of Dulwich has been given that assurance by the Home Office Minister. The Home Office and, in particular, my noble friend Lady Williams are keen to continue working with the noble Lord on the implementation of this policy.

16:15:00

We appreciate the push to put this into legislation at the earliest opportunity, but we do not agree that this Bill, with its focus on immigration is the most appropriate place to do so. As such, given the commitment made in the other place, we do not consider Amendment 170 necessary, and I assure my noble friend that this is not an attempt to wriggle out of our commitment.

I turn next to Amendments 170B, 171A, 171, 171AA and 172, all of which relate to Clause 64. I refer again to the remarks made by all the noble Lords who spoke on these matters and thank them for their contributions to this debate. The Government are committed to ensuring that the victims of modern slavery eligible for a grant of leave to remain receive it. We have committed to this through Clause 64, which sets out, for the first time in primary legislation, the circumstances in which a confirmed victim of modern slavery must be granted modern slavery-specific temporary leave to remain. Clause 64 is in line with our international obligations as set out in Article 14 of ECAT and clarifies the policy currently set out in guidance. We have been clear from the start that this clause is designed deliberately to allow for leave to be provided for as long as it is needed, where appropriate, and the length of leave will be considered on a case-by-case basis. In answer to my noble friend Lord McColl, to specify the length of leave as Amendments 170B and 171A seek to do, either for 12 months or for the duration of the assistance and support that a victim is receiving, does not follow our overall approach of having a truly needs-based approach to the support of victims.

Clause 64 will clarify, in primary legislation, the obligations set out in Article 14 and Her Majesty’s Government’s discretionary leave policy, as currently set out in guidance. Confirmed victims of all ages, including children, who do not have immigration status, will be automatically considered for temporary leave. A grant of temporary leave to remain for victims of modern slavery does not prohibit them being granted another, more advantageous form of leave, should they qualify for that. It continues to be a core principle of our approach to modern slavery that support provided in the UK should be available only to victims who need it.

Adverse comparison was drawn between the situation in England and Wales and that in Northern Ireland and Scotland. As the noble Lord, Lord Morrow, alluded to, the matter of support is devolved to the devolved Administrations.

We agree that the primary aim here is to provide clarity and certainty about the circumstances in which they are eligible for a grant of temporary leave to remain. Amendment 171 would, by contrast, reduce clarity by providing that leave should be granted where necessary to assist the individual in their personal situation, within ECAT. Clause 64 addresses this critical issue by defining the scope of this entitlement. The noble Lord, Lord McColl, chided the Government for not getting on with it. The Minister in the other place, Rachel Maclean, has given the commitment and we are getting on with it. As my Zulu is on a merely conversational basis, I will not attempt in this place to answer the noble Lord in kind.

I turn to Amendments 171AA and 172. Clause 64 applies to victims of all ages, including children, who do not have immigration status. They will be considered automatically for temporary leave. Decision-makers are fully trained in making all leave to remain decisions, including considering all information to assess the best interests of the child, as well as to account for the need to safeguard and promote the welfare of children.

In answer to a matter raised by the noble Lord, Lord Alton of Liverpool, Clause 63 provides that the Secretary of State must secure support.

We will continue to comply with our duties under Section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children and make it clear in the Immigration Rules that this is the primary consideration. We will also ensure that children continue to be supported and protected through existing mechanisms in local authorities.

Amendment 171 would remove the statutory clarification around when leave is deemed necessary, an important consideration provided for by Article 14 of ECAT. This would reduce clarity for victims and decision-makers. We must remember that an individual in receipt of a positive conclusive grounds decision has already had the benefit of the recovery and reflection period and any necessary support it provided. Leave under ECAT is not intended to be a path to settlement but a tool to aid recovery or to enable an individual to co-operate with the competent authorities in investigation or criminal proceedings, returning to my answer at the outset to the noble Lord, Lord Morrow. ECAT provides that leave need only be granted where it is “necessary” and it is therefore right that we consider whether any further support required following the conclusive grounds decision can be met in a third country. This approach enables us to focus our support provision on those victims in the UK who are genuinely in need.

For the reasons I have outlined, I ask the noble Lord at this stage to withdraw his amendment.

Lord McColl of Dulwich (Con)
I thank all noble Lords for taking part in this debate. However, it is quite clear that we will have to have further lessons in Zulu to make sure that things are done. The Minister has raised lots of questions, which will be brought up on Report, where I am quite sure there will be a very lively discussion. I beg leave to withdraw the amendment.

Amendment 169A withdrawn.

Amendments 170 and 170A not moved.

Clause 63 agreed.

Clause 64: Leave to remain for victims of slavery or human trafficking

Amendments 170B to 172 not moved.

Clause 64 agreed.

Clause 65: Civil legal services under section 9 of LASPO: add-on services in relation to the national referral mechanism

Amendment 172A not moved.

Clause 65 agreed.

Clause 66 agreed.

House resumed. Committee to begin again not before 5 pm.

Integration White Paper

Statement

The following Statement was made in the House of Commons on Wednesday 9 February.

“The Covid-19 pandemic has been a living example of the importance of working together as one. Whether it is the extraordinary success of the vaccination programme or the work to identify and protect the most vulnerable, we were at our best when we were working across traditional boundaries towards a common goal. We must learn the lessons of the pandemic and channel this spirit of collaboration.

Although huge progress has been made in bringing together our health and care services and local government, our system often remains fragmented and too often fails to deliver joined-up services that meet people’s needs. Thanks to incredible advances in health and care, people are enjoying longer life expectancies, but may be living with more complex needs for longer. Navigating a complex health and care system to meet those needs can be hard, especially when services are often funded, managed and delivered separately. People too often find that they are having to force services to work together, rather than experiencing a seamless, joined-up health and care journey.

If we are to succeed in our goals of levelling up our nation, we must keep working to make integrated health and care a reality across England. Today, we are publishing the integration White Paper, which shows how we will get there. It is the next step in our ambitious programme of reform, building on the Health and Care Bill and the social care reform White Paper, which this Government introduced to the House in December.

This White Paper has been shaped by the real-world experience of people, as well as by that of nurses, care workers and doctors on the front line, drawing on some of the great examples of collaborative working we have seen, particularly during the pandemic. It will make health and care systems fit for the future, boost the health of local communities and make it easier to access health and care services. It is a plan with people and outcomes at its heart—no more endless form filling, no impenetrable processes and no more bureaucracy that sees too many people getting lost in the system and not receiving the care they need.

First, we will ensure strong leadership and accountability, which is critical to delivering integration. Local leaders have a unique relationship with the people they serve. Our plans will bring together local leaders to deliver on shared outcomes, all in the best interests of their local communities, and encourage local arrangements that provide clarity over health and care services in each area, including aligning and pooling budgets. This arrangement has already been successfully adopted in several local areas. We have suggested a model that meets these criteria, and we expect areas to develop appropriate arrangements by spring of next year. Local NHS and local authority leaders will be empowered to deliver against these outcomes and will be accountable for delivery and performance against them. They will be supported by a new national leadership programme addressing the skills required to deliver effective system transformation and strong local collaboration.

Integration supports transparency, and joining up NHS and local authority data means that we can provide local people with better insights about how their area’s health and care services are performing. With access to more information, they will be more empowered to make decisions about where and how they access care. There will be a new single accountable person for delivery of a shared health and care plan at local level. In practice, that could mean an individual with a dual role across health and care or a single lead for a place-based arrangement.

Secondly, we will do more to join up care. At the moment, too many people are bounced around the system or have to tell their story multiple times to different professionals to get the care that they need, which is frustrating for people and front-line workers alike. There are so many opportunities here. Closer working between primary and secondary care can allow care that is closer to home, keeping people healthy and independent for longer, and closer working between mental health and social care services can reduce crisis admissions and improve the quality of life for those living with mental illness. The White Paper sets out how we will get there, using the power of data to give local leaders the information that they need to establish new, joined-up services to tackle the issues facing their communities.

Thirdly, we will make the best use of the huge advances in digital and data. We have seen throughout the pandemic how digital tools can empower people to look after their health and take greater control of their care—for instance, through the NHS app or remote monitoring technologies. Where several organisations are involved in one person’s care, there is a real opportunity to bring together data safely to create a seamless and joined-up experience. The White Paper reiterates our commitment to having shared records in place for all people by 2024, providing local people with a single, functional health and care record that everyone involved in care can access in a secure way. That will mean every professional having access to the key facts relating to a person’s condition, such as their diagnoses and medications. That will improve care, too, with professionals able to make care plans in full knowledge of the facts.

We have seen a rapid expansion of digital channels in primary and secondary care services in recent years, but there is plenty more that we can do. This year, 1 million people will be supported by digitally enabled care pathways in the comfort of their home. The White Paper sets out how we will open up even more ways for people to access health and adult social care services remotely. We will also support digital transformation by formally recognising the digital data and technology profession within the NHS Agenda for Change, and including basic digital, data and technology skills in the training of all health and care staff. Integrated care systems will be tasked with developing digital investment plans so that we can ensure that digital capability is strong right across the board. That means data flowing seamlessly across all care settings, with technology transforming care so that it is personalised to the patient.

Finally, the White Paper shows the part that the workforce can play. The health and care workforce is one of the biggest assets that we have, and we want to make it easier for people working in health and care to feel confident in how the system works together in the best interests of those they care for and to feel empowered to progress their careers across the health and care family. To drive that, integrated care systems will support joint health and care workforce planning. We will improve training and ongoing learning and development opportunities for staff. That means creating more opportunities for joint continuous development and joint roles across health and social care, increasing the number of clinical practice placements in adult social care for health undergraduates and exploring the introduction of an integrated skills passport to allow health and care staff to transfer their skills and knowledge between the NHS, public health and social care.

The White Paper represents a further step in our journey of reform, building on the foundation laid in the Health and Care Bill, looking ahead to a future of health and care in this country with people at its very heart. It paints a vivid picture of a health and care system with more personalised care and greater transparency and choice, where early intervention prevents the most serious diseases, using the power of integration to give people the right care, in the right place, at the right time.”

16:25:00

Baroness Thornton (Lab)
My Lords, in the almost five years that I have been doing this job, we have been waiting for a social care White Paper. My noble friend Lady Wheeler, month after month, asked where it might be and was told that it would be in the summer, the spring or the following winter, and it did not arrive. Indeed, in desperation, the House’s Select Committee, chaired by the noble Lord, Lord Forsyth, brought forward its own proposals for the future of social care, and extremely good they are, too. But here we are—the Government are now spoiling us with a third White Paper in a year. However, this one is a disappointment, I have to say, given the importance right now of the future for social care. Given the Government’s commitment to fixing social care, it is even more of a disappointment. We know that integration of health and social care, however it is defined, is extremely difficult, but I fear that its integration will not be delivered by this White Paper. It is long on description and has really great examples and aspirations, but it is very short on actual solutions and action.

Before I ask the Minister some questions that we need to address, I should also say that what is very disappointing in the White Paper is the lack of attention it gives to carers. They are not mentioned very often, even though the NHS and social care depend heavily on unpaid carers supporting people with long-term conditions and disabilities in the community. Some 1.4 million people in the UK provide more than 50 hours a week of unpaid care, and while unpaid carers provide the bulk of care, they are still not systematically identified, supported or included throughout the NHS. We have one system, social care, that recognises carers legally as an equal partner, while the other, the NHS, does not. That has been discussed in your Lordships’ House very recently, in the passage of the Bill before us, and is still not resolved. If there is going to be an integration of health and social care, one of the first things that needs to happen is the integration and legal recognition of the role of carers and our duty to support them and their well-being.

Moving on, it is not clear how this White Paper fits with the Bill before us. Even the experts involved repeatedly trip over the crucial issues, such as the relationship and responsibilities of integrated care boards, integrated care partnerships and integrated care systems, as well as the new joint committees and how they will work with the statutory health and well-being boards, which as we know have no commissioning powers, as the noble Lord, Lord Lansley, has said on at least one occasion. What is the role of health and well-being boards? If they are necessary, why are they not integrated into the system being proposed in the Bill before us? Now that we have a new Joint Committee, my first major question is, how will it work with the health and well-being boards, and with the ICBs and ICPs? Where will the clinical leadership sit, and where is the accountability to local people?

It is not clear how this latest offer fits with the proposals before us today. I suggest to the Minister that this is not really a plan. It is a description, an aspiration, but it is not a plan. It does not tell us which bit is responsible for what. If the new individual proposed in this White Paper is to take responsibility for shared outcomes, who will appoint them? How will they get there? Will NHS England, which is appointing the ICB chair and chief executive, be accountable to this new super-leader? Will they be inspected by the CQC? What if a huge local foundation trust misbehaves? What powers will the new leader have to act? That is why it is not a plan.

The second reason this is not a plan is that it has no workforce component—an issue that we are very seriously concerned with in the Bill before the House now. There is no workforce strategy or a commitment to one. If we want integration, it has to be a workforce strategy that covers health and social care, and it has to be long term.

The aspirations and vision are fine, but we have signed up to strategies before—for example, the NHS plan in the noughties; we thought that would be good. I regret that it almost feels as if this document has been put together as part of finding lots of new things to say to detract from the issues facing the Prime Minister and No. 10, which is a huge missed opportunity.

So, the issues the Minister needs to address include the workforce and the question of how you integrate and pool two systems which operate in different ways. One is means tested, and the other is not. One has national criteria for entitlement, and the other does not. The ways they are governed and funded are totally different, and they are kept going by two separate workforces with no aligned terms and conditions.

The White Paper talks about local initiatives and building things locally, but unless the infrastructure is there to produce the alignment needed, those local initiatives—many of which are very successful—will not be the pattern for how this works. So, I leave the Minister with a series of questions I hope he might be able to address.

The White Paper also does not help children and young people. It does not address the challenge of how to care for and support working-age adults with a disability. As I have said, it does not value or assist the informal workforce or carers. For an NHS under enormous pressure after years of austerity funding and then the impact of Covid, this is a disappointment. I am afraid that I could not decide whether it should get a C or a D.

The Deputy Speaker (Lord Haskel) (Lab)
My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

Baroness Brinton (LD) [V]
My Lords, I declare my interest as a vice president of the Local Government Association. Both the Statement and the White Paper set out a laudable ambition to integrate health and social care and communities, but I am afraid that we echo the disappointment of the noble Baroness, Lady Thornton, especially at the glaring omission of children, young people and disabled people who need care.

While reading the White Paper, I had a sense of déjà vu, and I dug out my copy of the White Paper Integration and Innovation: Working Together to Improve Health and Social Care for All, which was published on 11 February last year—almost exactly one year ago. The tone and the ambition were remarkably similar. All noble Lords know that the Health and Care Bill we are debating at the moment sets out in part how the Government believe that the White Paper from last year is going to be turned into legislation and changes in practice. The Minister knows the real concerns across the House about that practical implementation, and I do not believe that this new White Paper takes matters further forward.

From these Benches we also ask: where are carers? There is zero mention of carers in the Statement but 13 in the White Paper, two in the index and two as part of headings. The remaining nine in the text relate only to the people carers care for. There is no formal recognition of the role and no mention of support directly for them as carers. It says:

“People will move seamlessly between health and care settings because people and those supporting their health and care, including … unpaid carers, will be able to see and contribute to their care record and care plans.”
 

Is that the best on offer for carers—that they will actually be able to see the care plans? They can usually see them now, although most, I must confess, are still in paper format.

That was one example; I want to go on now to a couple of other issues. Much of the paper talks about how data will transform care in the future. On page 14 it says:

“A core level of digital capability everywhere will be critical to delivering integrated health and care and enabling transformed models of care.”
 

Can the Minister say—because the White Paper is absolutely silent on this—whether there will be funding for fast broadband across the country, especially in rural areas, to deliver that capacity to every single home? Without it, this entire system will fail before it even starts.

The White Paper also says that

“the data and information required to support them should be available in one place, enabling safe and proactive decision-making … We will aim to have shared care records for all citizens by 2024 that provide a single, functional health and care record which citizens, caregivers and care teams can all safely access.”

Can the Minister say how citizens’ data will be protected so that only those who need access to it will see it? As the Minister knows, this is another area where there is real concern over the Bill.

The paper talks extensively about leaders but in a generic way. There are muddles over NHS leaders, social care leaders and leaders of ICBs. Is it referring to council leaders or just leaders? I have to say that the organogram on page 37 makes the classic assumption of councils being single-tier metropolitan authorities, ignoring the plethora of two-tier council arrangements as well as other key stakeholders such as housing associations. It talks about

“3-5 local authorities within an Integrated Care System”.

Even at upper-tier authorities, that number is way too small with the shadow boards at the moment, and dwarfed when you add in district councils, which have key roles in delivering support for care. Unless this is hiding a proposal from the Secretary of State for Levelling Up, Housing and Communities, this is another massive reorganisation for local government.

Housing is vital to the aims of the Bill. The paper says:

“People’s homes should allow effective care and support to be delivered regardless of their age, condition or health status.”
 

But housing is not mentioned in the “Next Steps” section. I ask the Minister whether there will be specific funding to ensure that housing can be improved at a local level for people who will need it for the next stages of their lives.

The Statement and White Paper recognise the importance of the workforce—in theory. The section in the White Paper talks about continuous development and joint roles, some of which is very laudable, but what is actually happening in the Health and Care Bill at the moment, where the Government will not commit to proper planning for the workforce, makes this unattainable too.

Above all, from our Benches, we want to know where the resources are that will enable this transformation to take place. Even before this week’s announcement about the patient backlog, the levy for health and social care was already prioritised for the NHS. Every time we have asked the Minister when the social care sector will get the resources it so desperately needs—and what they will be—we are told that it will happen at some point in the future.

We need to know when social care and councils will get the support they need, particularly councils with extra responsibilities in this White Paper and the Bill. The LGA has said, correctly:

“Adult social care is in a fragile position, with councils struggling to balance their budgets … A long-term funding solution is urgently needed.”
 

Can the Minister tell the House what, where and when resources from both departments will be announced and made available to at least give this White Paper half a chance to get going?

The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
I begin by thanking both noble Baronesses for their questions. I will try to answer them within the time and, if I do not, will write to the noble Baronesses or others. I will go through some of the issues, first on place-based models.

As we discussed on the Health and Care Bill, ICBs operate at a system level. They will be working with place-based organisations, including health and well-being boards. We expect several models of place-based alignment and governance to emerge and we are not going to be prescriptive about a single model. We are clear that, whatever model is adopted, in the coming years all places must be characterised by clarity of leadership and accountability; a strong shared mission across the sectors, informed by local citizens; a commitment to integration manifested in removing unnecessary boundaries between services and strengthening connections to agencies able to influence the wider determinants of health and well-being; a strong culture of improvement; and a linked sense of urgency about the need to deliver more integrated care to improve outcomes, particularly care quality.

By that we mean that we do not start thinking in siloed ways—of hospitals or primary care, with social care over there. All these White Papers are building-blocks to help explain some of the intentions behind the Health and Care Bill. The Bill itself creates a flexible framework based on the real experience of making effective change happen locally. This flexibility is designed for a purpose: the stronger integration of health and care services. The White Paper picks up that ambition by making clear the strong commitment of the Government to this agenda and our ambition to make progress. The White Paper will ensure that we go further and faster on health and care integration with local authorities and the NHS to make the most of the forthcoming legislation. It does not contradict the Health and Care Bill.

I will pick up on accountability. Three things are different. There is a wider recognition of the demographic challenges we now face, which will increase. We cannot manage it as just health any more or, even within health, primary, then secondary and care over there. The pandemic showed us that some of the cultural and governance barriers to change that seemed impossible to shift have moved. We have seen this work in lots of places up and down the country. There are some model ICSs, which many noble Lords have drawn my attention to, and case studies; we want to learn best practice without being overprescriptive. The noble Lord, Lord Mawson, has talked effectively about place-based organisations many times and getting the right mix of skills and people for a particular place. What works in east London will not necessarily work in South Yorkshire. Some of it will, but some of it will not. We will learn from best practice.

We can be confident that the approach to accountability set out in the paper will work, because it draws on real examples that are already in place. If you ask local leaders what accountability means to them, they will be able to tell you who can ultimately hire and fire them. That is one version of accountability. They will also give you a list of the people and bodies to which they are accountable—partner organisations, local democratic institutions, staff, patients and service users, as well as regulators. We want to make sure that all that comes together to address accountability.

We hope to have shared care records for all citizens by 2024 but, as noble Lords will remember from the debate about data last night or early this morning, we have to get that balance right to make sure that people trust that data will not be shared unnecessarily or inappropriately. One of the key challenges for any integration is that it needs data across primary, secondary, social care and other agencies but, at the same time, we have to allow people to opt out. When people opt out, they might have to re-register a number of times. We want to avoid people, particularly vulnerable people, being asked the same question time and again. We hope that integration and people speaking to each other will help across the health and social care sector.

On carers, I was in fact having conversations yesterday on that subject, and I am going to be doing a round table with a number of noble Lords. One of the issues is making sure that we professionalise and give real respect to the caring workforce. One of the reasons why we set up the voluntary register was to understand the landscape of care, the different qualifications and levels, so that we can get a clearer understanding of what qualifications carers need and how we can make sure that works across both health and social care, so that staff can move between health and social care without feeling that one is better than the other.

We want to build on existing reforms. We want to talk to a number of partners—the noble Baroness, Lady Brinton, mentioned housing, for example—and in the adult social care White Paper we looked at ideas about people being treated at home, some of the things that will have to be done at home, whether that is done at system level and how to make sure that partners are working together.

One thing I will say is that the vast majority of care workers are employed by the private sector. The increase the national living wage means that they will benefit from a pay rise, but we have also put in money. Some private providers feel that they are using private profits to subsidise others. We are making sure there is more money to make sure that we get a better quality of service right across. What we really want to do is say, “Tell us where it doesn’t work and where it breaks down” and to make sure that at the place-based level they are able to work together. We will speak to as many stakeholders as possible and we will continue to ask them to inform us.

I will try not to run over time, but I shall talk about the single accountable person. This will be agreed by the local authority and the integrated care board. An increase in long-term conditions and an increase in the number of people being treated for them means that, increasingly, the co-ordination between the range of services looking after them can fall apart; we know that too many people fall between the cracks. That is why we want to have the single accountable person—so that we can make sure that people are no longer falling through the cracks.

I know I have gone on a bit long, so I will allow other questions to come in, but I hope that addresses some of the concerns.

16:46:00

Baroness Finlay of Llandaff (CB)
My Lords, before I ask my question, perhaps I might formally apologise to the House for an error I made last night in Committee on the Health and Care Bill in responding to the debate on my Amendment 287 on dispute resolution and children’s palliative care. I had missed email correspondence from Together for Short Lives prior to the debate, in which the organisation had offered to discuss my amendment with me. I hope the House can accept my sincere apologies and regret at my inaccuracy. I have had helpful correspondence with the charity today.

I turn to today’s Statement. In my role as chair of the Mental Capacity Forum, I welcome the mention in item 5.14 of training in mental capacity, because there is a tremendous need for training at every level.

I also welcome the concept of personalised care, but I am concerned that the paper before us just does not go far enough. We need to document what matters to a person, and that needs to be an ongoing dialogue, not a tick-box exercise. If we know what matters to a person, that can inform best-interest decisions if the person loses capacity, and it is important for informal carers and family members to know that beforehand. Personalised care must include emotional care.

I am also concerned that there is nothing here about training the unpaid carers. They do not just need training in physical aspects of care; they need emotional training and training in how to de-escalate their own emotional stress, particularly when dealing with mental health issues in the person that they are caring for. There is nothing here about child carers and how information goes to a school that a child is a carer and may be under tremendous stress—or it may be that I have missed it in the documentation.

I hope the paper will stress the importance of people being listened to, which will inform decisions when deterioration happens. I would welcome the Government’s comment on how they are going to train enough people and instigate training across the board, both in sensitive listening skills and in achieving the high aspirations that I think the paper has attempted to set out.

Lord Kamall (Con)
I thank the noble Baroness for her clarification and for notifying me earlier about the issue that she apologised for. One of the issues for us is that we want to make sure that if all the parts of the healthcare and social care systems are talking to each other, and there are accountable people, we hope that people will not fall through the cracks and that there is a multi-agency approach. It will be difficult to be overly prescriptive here, because what would work in one area might not work in another.

The point that the noble Baroness makes about training is critical. In many debates in this House, we have understood that we need to take the social care workforce seriously and give support to unpaid carers of whatever age, whether they are children or family members. Sometimes they are doing it because they do not want their loved ones to go into a home and sometimes they just need a bit of respite. We are looking at a number of issues around carers—first, unpaid carers but, secondly, making sure that being a carer is a rewarding career and is not seen as being at a lower level than, say, a nurse in the health service.

One reason for having a voluntary register, for example, is to understand the landscape and then put in place proper and different educational pathways, and other pathways, into care. Having national qualifications at levels 4, 5 and 6 and so on will show parity of esteem and that this is a worthwhile career. We have the Made with Care campaign to start to encourage more people back. We are looking at a number of different ways to make sure that carers are not just forgotten. If they work in care homes, that is fine, but we want to make sure that there is a real career structure for them, and also that they can move between health and social care, both ways. There may well be nurses or doctors who want to move across. We have to make sure that going from one place to another is not seen as disadvantageous in any way and that the system is truly joined up.

Of course, this is all top level and shows our ambition to integrate. We do not want to be overly prescriptive; decisions have to be made at place level.

The Lord Bishop of St Albans
My Lords, I declare my interests as a vice-president of the Local Government Association and president of the Rural Coalition. I want to pick up very briefly on what the noble Baroness, Lady Brinton, said about rural issues. It is disappointing that there are no explicit references to rural health. One of the concerns of the APPG on Rural Health and Social Care parliamentary inquiry was the way in which inappropriate data, metrics and funding formulas can disadvantage rural areas. National programmes are one thing, but when they are delegated to local areas how are we going to ensure that they are properly rural-proofed and will integrate both health and care?

Lord Kamall (Con)
It is important to stress once again that the key to this is that we cannot overly prescribe from here in Westminster and Whitehall. We must make sure that at whatever place, whether it is rural or urban, the people and patients who are cared for in the system are being understood. One reason why we want one person to be accountable, whether in urban or rural areas, is the fact that they must take responsibility for ensuring that all these things are joined up—not only health and social care as we understand them but technology, housing and all those other issues. I know that the right reverend Prelate and my noble friend Lady McIntosh have often raised this issue. We think that the proposal is flexible enough, whether in an urban or a rural area, to make sure that one person really understands the local area of integration.

Lord Lansley (Con)
My Lords, paragraph 1.11 of the White Paper states:

“Our focus in this document is at place level.”
 

Paragraph 3.11 goes on to state:

“Success will depend on making rapid progress towards clarity of governance and clarity of scope in place-based arrangements.”
 

As far as I can see, the Government are proposing that by spring next year such place-based arrangements will be put in place across the country, with a single accountable person to whom my noble friend referred. There is no reference at all to place-based arrangements in the Health and Care Bill. For years, the NHS has been saying, “We are creating integrated care systems but they don’t have statutory cover, so we want legislation that reflects our way of working”. The Government are now proposing legislation that creates a way of working with no legislative cover. I am afraid that this will not work unless the Bill changes to reflect place-based arrangements and a single accountable person, and defines adequately who they are, what their powers are and how their accountability works.

Lord Kamall (Con)
I thank my noble friend for that helpful intervention.

Noble Lords
Oh!

Lord Kamall (Con)
I respect my noble friend for his willingness to pass on the benefit of his many years of advice to me.

We do not want to get overly prescriptive. We have talked about health and well-being boards and I know that my noble friend has talked about their importance. In the papers I laid in the Library the other day, where we looked at integrated care boards and integrated care partnerships it was quite clear that, in some places where the health and well-being boards may well completely overlap with the ICPs in a smaller area, that will continue to be the place-based level. Where there is a larger system, we expect the integrated care board and integrated care partnership to work with the local place-based organisations underneath them at a more local level. That is what we have been saying all the way through. We want to make use of existing fora. In some places they will overlap and may well end up as the same thing. We will update the health and well-being board guidance in due course to reflect the implications of policies set out in the White Paper and what comes out of the Health and Care Bill when it passes.

Baroness Donaghy (Lab)
My Lords, mine is a simple question. We have two separate pieces of legislation on the same area. How does the Minister guarantee that we will not end up with two contradictory systems?

Lord Kamall (Con)
The only legislation I am aware of is the Health and Care Bill; this White Paper complements that, just as the adult social White Paper does. This is not legislation.

Lord Mawson (CB)
My Lords, I welcome the White Paper and the direction of travel. I thank the Minister and his colleagues for being willing to listen to me and colleagues in the NHS who are involved in actual practical pieces of innovation in this space. It is good to see real examples of the implications for real people in this White Paper. There is also lots of focus on practical and detailed changes—for example, streamlining training and qualifications and shared outcomes. I wonder whether sufficient attention is paid to the social determinants of health and getting upstream with regard to prevention. Is there still too much assumption that the state is doing all the work? The private and voluntary sectors are the major delivers of care. Does the model of partnership proposed fully reflect this? The Minister might like to reflect on that.

Finally, as always, the devil is in the detail and will be all about implementation. One of the ways of achieving this focus is, as I have said before, through establishing innovation platforms that embody the ideas of not only the White Paper but the Health and Care Bill, levelling up and many other current initiatives. Innovation platforms can start to bring together some of these initiatives. It is our experience on the ground that a lot of the public sector systems and processes are not in place and are not fit for purpose. There needs to be innovation in this space. The problem could be an opportunity if we start to join some of this up. How do the Government intend to join up these various initiatives?

Lord Kamall (Con)
In many ways, the answer is not what the Government intend to do but what happens at the place-based level. As the noble Lord has reminded me on a number of occasions, some of the projects that he has been involved in and other social enterprises have been really good at bringing people together. Sometimes it has been led by local councils; sometimes it has been led by social enterprises; sometimes it has been led by networks. I completely understand the premise of the question and agree that it has to be a partnership. It is not just a state, but social enterprises, co-operatives, local movements and local civil society all working together with common aims. Go to any part of this country and you will see a number of these people working together. We have to make sure that there is no overlapping or duplication. This is the real aim of what we are trying to get, making sure that people talk about health and social care but well-being as well.

Lord Davies of Brixton (Lab)
My Lords, the one thing I admire about the document is the way in which the meaningless term “levelling up” has been shoehorned into the text. I want to raise the bundle of issues which have been grouped under the heading of parity of esteem between physical and mental health. It is not an issue we need just to have in the back of our minds; it needs always to be front and centre in the development of policy. More could be covered than is in the White Paper. One of the examples given in the White Paper is of Mandeep. It is well chosen. It is a case of someone with mental health problems and diabetes where there is a success to point to: where joined-up working has reduced the differential in suffering from diabetes experienced by people with and without mental health problems. That is a good example of what can be achieved. I hope that parity of esteem will be central in what the Minister is doing.

Lord Kamall (Con)
I thank the noble Lord for raising the issue of mental health and parity of esteem, not only here but in our debates on the Health and Care Bill, and for our continuing conversations. We hope that we will be able to find a solution to make sure that mental health has parity of esteem. In previous Bills, health has meant physical and mental health, but I recognise the mood of the House when noble Lords ask for it to be stated explicitly somewhere, even in the triple aim. We are looking at solutions for that. He is absolutely right that it is not just about physical health; it is about mental health, about well-being, about tackling inequalities and about disparities. However, we cannot do that from here. We have to make sure that the place-based organisations, working in partnership with integrated care systems, really understand what is happening locally and are best placed to do that.

Baroness Jolly (LD)
My Lords, I welcome the White Paper. How will adults with a learning disability and their carers see a difference in their care and support as a result of it?

Lord Kamall (Con)
That is a really important issue. A single point of responsibility will make sure that these things do not fall between the cracks. It ensures that physical health, mental health and well-being all come together. A number of noble Lords have spoken about social prescribing, for example, and where that has been tried and where it might not work in other places. It is important that by talking about integration we get people thinking about integration at the place-based and the system level, but also that we can learn from good examples of what works elsewhere. That is what we hope to see. Sometimes, you just have to put in on the tin and say, “Think in an integrated way.”

Nationality and Borders Bill

Committee (5th Day) (Continued)

17:03:00

Clause 67: Disapplication of retained EU law deriving from Trafficking Directive

Amendment 172B

Moved by

172B: Clause 67, page 71, line 13, at end insert—
  “(1A) This section may not come into force until the Secretary of State has conducted a review of the impact of subsection (1) and laid a copy of the review before Parliament.(1B) A review under subsection (1A) must include, but is not limited to—(a) identification of any parts of the Trafficking Directive which the Secretary of State considers to be incompatible with provisions made by or under this Act;(b) analysis of the costs and benefits of the disapplication of the Trafficking Directive;(c) the impact that the disapplication of the Trafficking Directive is likely to have on the identification, protection, support and access to wider remedies of victims of all forms of slavery in the United Kingdom.”Member’s explanatory statement
 This would require the Secretary of State to review the impact of disapplying the EU Trafficking Directive before this section can come into force.

Lord Coaker (Lab)
My Lords, my Amendments 172B and Amendment 174A relate to Clause 67.

I say at the outset that I do not want to reopen a debate about Brexit, but I do want to reopen a debate about the practical implications of the UK being outside the EU and how it relates to the protection of children and those who are victims of slavery and trafficking.

The Government actively chose to opt into the trafficking directive in 2011, stating that it would send a powerful message to traffickers. The modern slavery strategy of 2014 stated that opting in showed

“our commitment to working with other countries in Europe to drive up standards across the continent in tackling trafficking.”

Can the Minister say what has happened to that and how the Government are demonstrating those continuing commitments? Why is Clause 67, on disapplying the directive, necessary? What the Committee would like from the Minister—which may be difficult to do now as he may need to refer to others before coming back to us—is to explain which specific provisions of the Bill the Government consider to be incompatible with the directive? The Government have not given any detail on this. Is it victims’ rights or children’s rights? In other words, what difference has it made, what was covered and what is not covered? These answers are necessary for us to make a comparison and see whether there are any gaps which we believe would be important to close.

In the Commons, the Minister said that

“the transition period for this measure finished in January, so in effect it has already been disapplied.”—[Official Report, Commons, Nationality and Borders Bill Committee, 2/11/21; col. 547.]

I hesitate to suggest this, but I certainly would not be able to tell noble Lords exactly which bits have been applied, which have been disapplied and whether it makes any difference. Can the Minister provide clarity on this? Are we disapplying it under this Act, or have the Government already decided that it does not apply? In other words, has it just been abandoned?

My amendment does not prevent the disapplication, but simply asks the Government to complete an impact assessment before this part comes into force—including identifying which parts of the Bill are incompatible and, crucially, what impact this would have on the identification and protection of victims of slavery. The Government may have already conducted an impact assessment but if so, I could not find one. If they have, it would be interesting for the Committee to note that. This is particularly important because a Google search finds all sorts of regulations and legislation which have been passed, presumably to protect victims of slavery and trafficking. So, my amendment is a simple probing amendment to ask the Minister what difference the disapplication has made. How do we know it has not made a difference if we have no information about the difference between what there was and what there is?

I do not intend to commence a huge new debate for this Committee, but I want to use this grouping as an opportunity to highlight the issue of internal trafficking and county lines. The Minister will know that large numbers of children are referred to the national referral mechanism. He will also know that 34% of referrals are British citizens. There is a real problem with slavery and trafficking within the UK. Euphemistically, this is called county lines, and we know what that means. This will be the tip of the iceberg. The Government have set up all sorts of initiatives to try to deal with this, but what I am seeking to do is simply to raise the issue of slavery and trafficking of children—British children—within the UK. How big is the problem, what is its extent and what are we doing to get on top of it? People of this country would be shocked at the numbers of British children being trafficked and enslaved. Often, including in the debate we have had on this Bill, much of the discussion has been about people coming into the country—rightly or wrongly—what the numbers are and what the impact of the new provisions will be.

Although this is a probing amendment, it is nevertheless really important. I am pleased to see that the Home Office Minister, the noble Baroness, Lady Williams, is now in her place. Perhaps these are issues that should be debated elsewhere, but county lines and internal trafficking are important issues and the number of British children in slavery is increasing. It is a growing phenomenon that is a great shock to us all, and we need to do more to tackle it. I beg to move.

Baroness Ludford (LD)
My Lords, I would like to lend our support from these Benches to both the amendments of the noble Lord, Lord Coaker. The subject of retained EU law is one on which it is easy to go down a rabbit hole. But at least this is being put in primary legislation instead of being done by the stroke of an executive pen, which is what the noble Lord, Lord Frost—who is, well, I had better not say—who used to be the Brexit Minister, appeared to suggest would happen. So, I suppose we should be grateful for small mercies.

The EU trafficking directive is, in a sense, a classic EU directive. It aims to get common standards as a measure of human rights protection, in order to establish robust provisions to prevent and prosecute the crime of trafficking and to protect, assist and support its victims. But also, the point of trying to get similar standards was to facilitate cross-border co-operation between member states’ law enforcement authorities through police co-operation, exchange of information and best practices, and dialogue between police, judicial and other authorities. Sometimes misunderstood, the whole point of EU harmonisation was to enable things to happen better, not least law enforcement.

I too do not want to rerun the issue of Brexit, but it is hard to see how pulling out of the EU trafficking directive is a Brexit opportunity. It is a lost opportunity to co-operate internationally across European borders with Europol on major crime. I am afraid that major criminals are one of the beneficiaries of Brexit.

It is a great pity that the part of the TCA on security is so thin. Things like the EU trafficking directive deserve a place in it. You can withdraw unilaterally, but that means you do not get the reciprocity of other police forces co-operating when you have criminal perpetrators who come from all over. Of course, we know this is an international crime. The EU directive also enables the pursuit of action in non-EU countries, such as raising awareness, reducing vulnerability, supporting and assisting victims, fighting the root causes of trafficking and supporting third countries in developing appropriate anti-trafficking legislation. That is an action that would rebound to the benefit of EU countries and the UK, if we were to stay plugged in to the EU’s directives. So, I do not see that pulling out is other than a lose-lose situation.

On the other amendment from the noble Lord, Lord Coaker, as has been mentioned—I believe this figure comes from Care UK—in 2020, 34% of all potential victims of modern slavery referred to the NRM were UK nationals. So, the noble Lord, Lord Coaker, is right to focus on that and on the many children involved in county lines drug dealing. We fully support the call for a report on these issues.

17:15:00

The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, Amendment 172B, moved by the noble Lord, Lord Coaker, and concerning Clause 67, disapplies the EU trafficking directive so far as it is incompatible with provisions in the Bill. This means that any provisions in the directive that continue to have effect—I stress that we do not think that any do—and remain compatible with the Bill will be unaffected by this clause. Clause 67 provides an important point of legal clarity to ensure that victims can understand their entitlements, that we are clear on the rights that we are providing and that these are in line with our international obligations. I appreciate that this is a probing amendment, but what it proposes is unnecessary. In future, should it be required and parliamentary time allows, we will consider whether further legislation is needed to clarify other elements of the EU trafficking directive. Here, we seek to provide clarity on the specific measures in the Bill.

In speaking from the Liberal Democrat Front Bench, the noble Baroness, Lady Ludford, took the opportunity afforded by this short debate to land some side swipes at Brexit and its consequences, a topic I would be happy to debate with her all night. However, not to take up the Committee’s time, I simply stress that we are not removing any entitlements from victims. I can confirm that this will not have an impact on victim identification, protection or support.

Turning to Amendment 174A, tabled by the noble Lord, Lord Coaker, I take the opportunity to reassure the Committee that there are already robust mechanisms in place across government, the police and the criminal justice system for gathering, recording and publishing victim data. There are measures in place for collecting and publishing data on the areas in which the noble Lord is interested and to which he referred in Committee. The Home Office publishes data on potential child victims of modern slavery referred through the national referral mechanism. Anticipating my answer in greater detail to the noble Lord’s point about the need to collate statistics on the incidence of trafficking of British children, the Home Office also publishes the nationality of recorded potential victims, based on information provided by the first responder on arrival. The noble Lord is shaking his head; I suspect he knows these things better than I do but, for the benefit of the Committee, that information may be updated by the competent authority staff as further information is gathered.

Lord Flight (Con)
My Lords, can the Minister say what the contemporary definition of slavery is? We all know what slavery meant 400 years ago, but I find the word used in a way that makes it difficult to assess what it means.

Lord Stewart of Dirleton (Con)
I am grateful to my noble friend Lady Williams here: the short answer is to look at the Modern Slavery Act. It can involve coercion, which can be occasioned by way of threats to others or by threat to the individual. It can come in many different forms; it can be emotional or psychological as well as physical. It is a pernicious practice that exists among nationals of this country as much as it does overseas. Perhaps, therefore, it gives an insight into the universal failings of the human character. The short answer—I have detained the Committee for too long—is the advice that I gave, for which I was the conduit for my noble friend Lady Williams.

I was about to expand on the fact that data concerning criminal gangs is operational and held by each police force. Adding reporting requirements for this data would, we submit, require a significant change in the way the Home Office collates and publishes data on crime. Changing this reporting approach would be unnecessary since we already publish data on county lines NRM referrals through the NRM statistics publication.

I hope that goes some way to answering the noble Lord’s important concern over how we identify, go to the defence of and offer protection to children—nationals of this country who are the victims of these gangs. Modern slavery offences committed against children are, as I say, recorded and published by the police, the Crown Prosecution Service and the Ministry of Justice. The Crown Prosecution Service maintains a central record of the number of offences in which a prosecution commenced, including offences charged by way of the Modern Slavery Act 2015. All modern slavery offences committed against children are identified through the child abuse monitoring flag. The Crown Prosecution Service definition of child abuse covers any case where the victim was under 18 years of age at the time of the offence.

I reassure the Committee and the noble Lord that a child’s welfare and best interests are the primary considerations in any decision-making—in this Bill and any other. Local authorities are responsible for safeguarding and promoting the welfare of all children in their area, including child victims of modern slavery. In addition to this statutory support, the Government have rolled out independent child trafficking guardians, who are an additional source of advice and support for potentially trafficked children. These have been rolled out in two-thirds of local authorities across England and Wales. The Government remain committed to rolling them out on a national basis.

Given all this, I respectfully request that the noble Lord withdraws his amendment at this stage.

Lord Coaker (Lab)
I thank the Minister for his answer. It was a short debate but an important one. There are couple of things that the noble Lord said in his answer about the EU directive that I think are helpful. It is something I might suggest with respect to the other amendment on county lines.

I think the people who read our debates will be pleased to hear the Minister say that no entitlement will be removed on victim support, protection or identification. I think I have that quote right. That will be helpful because, in the sector certainly, that is what a lot of people have been worried about: that the disapplication of the directive will impact on those aspects. The Minister’s reassurance will be welcome, although, as with everything, we will see how it works out in practice.

It was also interesting that the Minister said that other legislation may be needed to clarify the disapplication of the EU directive in due course—a fabulous phrase. As we move forward, we will see how it goes. Like Clause 67, this is very important. Sometimes, Governments fail to spell out how the disapplication works and what the practical consequences are. So, short debates like this are important.

On county lines and the report, I think that, despite the information being available, the British public have no idea that 34% of the referrals to the national referral mechanism—the body set up to deal specifically with this—are British children. I do not think that people have any idea that it is that high—that is an astonishing figure. Given that 47% of referrals to the NRM are children, this means that a very high proportion of all the people who are referred are British children. So that is the purpose of this.

It is not that the Government are not doing anything. If I had been the Minister, I would have mentioned the co-ordination centre that the Government set up in 2018, which is actually about all of the things that I am talking about: the need for more data, greater co-ordination, greater prioritisation of this work and greater identification of this as a new crime that people have not taken as seriously as they should; the fact that children are moving across county boundaries without being tracked or followed; the lack of statistical sharing between police forces, social services and children’s services; and children ending up on the south coast and coming back to London. All of those sorts of things are what the co-ordination centre was set up to deal with.

All I would say is that the Government, through the Home Office, need to keep their foot on the pedal on this because it is a growing problem. What is happening in our country is an absolute disgrace. Some of the children involved are not even teenagers; they are not even 17 and a half—I was admonished earlier by the noble Lord, Lord Wolfson, for mentioning 12 and 13 year-olds rather than 17 and a half year-olds, which is what he wanted me to say. Some of these children are seven, eight and nine years old. It is a disgrace, which is why I make no apology for bringing this forward in that context. British children are being enslaved and trafficked within our shores. I know that this is a priority for the Government and for all of us, and this has given me the opportunity to raise it, so that the people of this country can hear how bad the situation is and what we are seeking to do to try to address it. I beg leave to withdraw the amendment.

Amendment 172B withdrawn.

Clause 67 agreed.

Amendment 173 not moved.

Amendment 174

Moved by

174: After Clause 67, insert the following new Clause—
 “Migrant domestic workers
 (1) The Secretary of State must amend the Immigration Rules to make provision for the matters the subject of subsection (2).(2) All holders of domestic worker or diplomatic domestic worker visas, including those working for staff of diplomatic missions, must be entitled—(a) to change their employer (but not work sector) without restriction, but must register such change with the Home Office;(b) to renew their domestic worker or diplomatic domestic worker visa for a period of not less than 12 months, provided they are in employment at the date of application and able to support themselves without recourse to public funds, and to make successive applications;(c) to apply for leave to enter and remain for their spouse or partner and any child under the age of 18 for a period equivalent to the unexpired period of their visa and of any subsequent visa;(d) to be granted indefinite leave to remain after five continuous years of residence in the United Kingdom if at the date of application their employer proposes to continue their employment.”Member’s explanatory statement
 This amendment would serve to reinstate the rights and protections that domestic workers originally had under the terms of the original Overseas Domestic Worker visa, in place from 1998 to 2012.

Baroness Hamwee (LD)
My Lords, in moving Amendment 174, I will leave my noble friends Lord German and Lord Wallace to speak to their Amendments 181 and 183. I received a message asking me to pass on the apologies of the right reverend Prelate the Bishop of Bristol, who signed this amendment; she is in her place, but I suspect that she is going to make a hasty exit at some point fairly soon. She is of course the bishop with safeguarding responsibilities. I have her speech on my iPad; we are not allowed to read out other noble Lords’ speeches, which is a pity because it is much more neatly set out than the rather scrappy notes that I have.

The very unhappy position of some—too many—overseas domestic workers and the appalling situations that many of them are in were explained very powerfully to many of your Lordships during the passage of the Modern Slavery Act. One of the things that remains in my memory is the thanks that we received after the discussion on the Bill, even though we had not achieved the changes that we sought. A number of women who had been treated as slaves and prisoners but who had escaped and have connections with the charities working in the sector, particularly Kalayaan, were very keen to get us all together after those defeats to say thank you and of course to continue the campaign. They presented each of us with a single flower, which felt very significant.

It was a cross-party effort at that time. At the end of the day, we did not succeed in amending the Bill, but the Government commissioned an independent review into the terms of the overseas domestic worker visa to see whether it facilitated abuse and, as a result of that, made some changes to the visa regime in 2016. I am advised that these remain, in practice, ineffectual. The Government accepted in 2015-16 that workers need an escape route and should not be trapped working for abusive employers, so they reinstated the right of workers to change employers, but it is limited to the time remaining on the worker’s visa, which is kept at six months—so in practice a worker has weeks or, rarely, months, but very little time remaining to find new employment. Of course, most employers need the certainty of having someone working for a longer period. Many workers do not have their passports and they cannot demonstrate that they have valid leave, so automatically they fail work checks.

17:30:00

The Government also committed to the implementation of mandatory information sessions for workers newly arrived in the UK, in recognition that many—I suspect almost all—workers did not know what rights they had here. These information sessions were also intended to help them to know where to find help, if they found themselves in abusive employment. The right reverend Prelate tabled a Parliamentary Question last year, which confirmed that the commitment has now been abandoned.

Given the barriers that such workers still face in the UK, this amendment would simply serve to reinstate rights which holders of this visa originally had under the terms of the overseas domestic worker visa in place from 1998 to 2012. Concern has been expressed by United Nations experts, who say that they firmly believe that migrant workers should be granted the right to change their employer—and I have explained the problems here. It sent out a communication in July last year to which the Government have responded, confirming that they are looking to understand the nature of exploitation and are developing proposals to reform the route from next year—that is, this year.

There is a lot of evidence that demonstrates that reported abuse is lower when migrant domestic workers—this does not apply only to domestic workers—have rights that enable them to challenge abuse. These rights are not some sort of Trojan horse enabling people to come into the UK on an overseas domestic worker visa and then join the wider workforce. They could not, under this amendment, change work sector; they would have to register with the Home Office. They would have a right to renew but, provided that they were in employment and not dependent on benefits, a right to be joined by family and to be granted indefinite leave to remain after five years, provided that their employment at that time was secure.

Noble Lords will appreciate that this would provide stability and certainty, to which I have referred, to those who are forced to work in the teens of hours each day, every day, and to sleep in the corner of a kitchen, fed on nothing more than scraps from a family’s table. I am not suggesting, of course, that every overseas domestic worker is in this situation, but it seems that many are—and one in this situation would be too many.

The amendment also refers to the visas granted when a diplomatic family brings in a servant for the family. Again, this does not of course apply to all diplomats, but I remember that in 2015 we were told of examples of families from the Gulf with Filipino servants. It would make it practicable for them to find other employment.

As Callaghan put it, working conditions should not have to deteriorate to the point of slavery before workers can access redress and justice. I see that the right reverend Prelate has had to leave. She would have said that, by the standards of this Bill, this is a very modest amendment, merely restoring a model that worked well in the past. I beg to move.

Lord German (LD)
My Lords, Amendment 181 seeks an exemption from the immigration health surcharge for international volunteers who come to the UK to work with vulnerable adults and children. International volunteers make a significant contribution to the work of UK charities across the whole of our country, particularly in the health, social care and education sectors.

The decision of international volunteers to travel hundreds and thousands of miles to help vulnerable people in the UK is a huge decision and commitment. Though they might get a subsistence allowance and board and lodge, they receive no salary. Additionally, the volunteers have to pay for their visa, insurance and flights. The additional impact of the immigration health surcharge simply adds to the financial burden on these volunteers and the charities they support, with the net result that the UK will probably attract fewer international volunteers.

Beyond the role they play in our domestic work, helping our society, these volunteers often become friends for life, not just to the individuals they have helped but as friends of the United Kingdom, in much the same way as international alumni of UK universities become friendship ambassadors of this country. They have formed bonds of friendship that can pay big dividends for us as time passes.

This amendment has the support of 55 charities and voluntary sector bodies across Scotland, Northern Ireland, Wales and England. These organisations are feeling the impact of this surcharge and are seeking an exemption for their international volunteers. One of these organisations is Camphill Scotland, which supports more than 600 people with learning difficulties and other support needs. It works in the social care sector and has the support of more than 300 international volunteers. Without them, the charity would have to curtail its work. The Welsh Centre for International Affairs supports international volunteers, many of whom work with young people in disadvantaged areas in the south Wales valleys.

By way of comparison, if the work of international volunteers was undertaken by full-time paid staff, each post would cost the charities more than £17,000 per year. Volunteers cost charities about £600 plus subsistence, board and lodge. But the volunteers have to pay £625 for a visa, plus now another £230 for the immigration health surcharge, plus their air fares, plus their insurance. As an example, this is what international volunteer Constantin Jacobs says of the problem:

“There will be so many people that cannot afford to volunteer abroad any more, it might not sound like a huge difference for everyone but for young people who have just finished their school or their studies, and who do not have a lot of money, this difference can mean the decision to go or not to go to the UK to spend their voluntary year there. The UK would be much less attractive as a host country. I am sure that there would be many people who would actually love to go to the UK, deciding in the end to go to another country because of this change. This would be very bad for the volunteers and even worse for the organisations in health and social care systems that rely on volunteers from abroad!”
 

International volunteers are unpaid—not because they are worthless but because they are priceless. If they are priceless, I hope the Government will consider removing this charge from this one special group of people to allow us to continue the work being done and to create such good will around the world.

Lord Wallace of Saltaire (LD)
My Lords, I will speak to Amendment 183, which I hope the Government may be willing to accept before Report.

Investor visas were introduced in 1994. They became tier 1 investor visas in 2008. Conditions were tightened under the coalition Government in 2011 and further in 2014. Successive Governments, from different parties, have allowed them to continue. Theresa May announced a review of the scheme in 2018, after the Salisbury poisonings raised concerns about the numbers of wealthy Russians resident in the UK, but so far that review has not been published.

The majority of investor visas have been given to wealthy people from Russia, China and central Asia—all countries with high levels of corruption and extreme inequality. Given the FCDO’s recognition that the greatest state threats to the UK come from Russia and China, this does not fit easily with the Prime Minister’s aspirations for “global Britain”. It has been reported that more than 6,000 golden visas—half of those ever issued—are now being reviewed for possible national security risks. Many of those who received them will by now have acquired full UK citizenship.

Two Court of Appeal judgments in the past year have thrown up new questions about the regulation of this scheme and the sources of the finance pledged by applicants. Paragraphs 49 to 52 of the Intelligence and Security Committee’s Russia report, now published over three years ago and to which the Government have been extremely slow to respond, let alone to implement its recommendations, say that

“the UK has been viewed as a particularly favourable destination for Russian oligarchs and their money. It is widely recognised that the key to London’s appeal was the … UK’s investor visa scheme … The UK welcomed Russian money, and few questions—if any—were asked about the provenance of this considerable wealth … What is now clear is that it … offered ideal mechanisms by which illicit finance could be recycled through what has been referred to as the London ‘laundromat’. The money was also invested in extending patronage and building influence across a wide sphere of the British establishment … there are a lot of Russians with very close links to Putin who are well integrated into the UK business and social scene … This level of integration … means that any measures now being taken by the Government are not preventative but rather constitute damage limitation … It is not just the oligarchs either: the arrival of Russian money resulted in a growth industry of enablers—individuals and organisations who manage and lobby for the Russian elite in the UK. Lawyers, accountants, estate agents and PR professionals … To a certain extent, this cannot be untangled and the priority now must be to mitigate the risk”.

After warning about the extent of illicit Russian financial activity in the UK, including extensive donations to political parties, the report states in paragraph 56:

“One key measure would be an overhaul of the Tier 1 (Investor) visa programme—there needs to be a more robust approach to the approval process for these visas.”
 

So far, the Government’s published response to the ISC report makes no reference to this recommendation. If this has been true for Russians, it has also been true for Kazakhs, Azeris, Malaysians and Chinese. The Government recently made a great fuss about a British citizen with close links to the Chinese state and the funds she had donated to a Labour MP. It is surprising that they have so far made much less fuss about our resident Russian-linked community.

17:45:00

In a Bill that is largely designed to make access to UK residence and settlement more difficult, this singles out the very wealthy, who are often also politically exposed people, for easy entry. Home Office records show that, between 2008 and 2020, some 9% of golden visa applications were refused. In comparison, 42% of asylum applications were rejected. The UK has been one of the top 10 to 15 most popular golden visa regimes in the world.

It is also reputed to have one of the fastest application turnarounds globally, with the Government promising a decision within three weeks to applicants. In comparison, the turnaround time for a UK asylum application is six months. It is perhaps ironic that a recent report suggests that the UK has now lost ground in comparison with Cyprus and Malta, since UK citizenship no longer provides easy access to other EU states, including the Riviera and southern Spain—another unintended consequence of Brexit, of course.

Peers will recall May and Johnson’s rhetoric about patriotic “somewheres” and unpatriotic “anywheres”. But these new citizens are the ultimate cosmopolitans, using London as a safe haven while maintaining much of their wealth and business connections offshore. Those who provide for their needs in London serve the ultra-rich without considering the implications for Britain’s sovereignty and reputation. Oliver Bullough’s new book labels British enablers “butlers to the world”. One of them is co-chairman of the Conservative Party.

If I were a conspiracy theorist, I would believe that the reason the Government have not published the report of the review they promised in 2018, now four years ago, is all of a piece with their reluctance to act on the recommendations of the ISC’s Russia report: that they have something to hide; that Russian money flowed to the Conservative Party; and that the close links between property developers, other enablers and these wealthy people has become, as the ISC report put it, impossible to untangle. I hope that is not the case and that publication of the review will show that it is not so.

However, it is demeaning. A Government who claim to be proud to have restored British sovereignty are selling a fast track to citizenship to dodgy people from dodgy countries. It has distorted the London property market to an extraordinary degree. The Minister will remember Nigel Farage complaining that London commuters hear more Polish and Romanian on their trains home than English. He did not remark that there are parts of Belgravia and Hampstead where you now hear more Russian, Mandarin and Arabic than English. We have imported corruption and, with it, the danger that corrupt overseas wealth will in turn corrupt our own society and democracy.

My Amendment 183 asks the Government to publish this overdue review in full and, in the light of that report, to reconsider whether this scheme should be ended or restricted and policed more tightly.

Baroness Lister of Burtersett (Lab)
My Lords, the noble Lord makes a very strong case, but I rise to strongly support Amendment 174, to which I have added my name. I am grateful to my friend Professor Fiona Williams, an important researcher on this issue, and Kalayaan, to whom I pay tribute for all their work on behalf of migrant domestic workers and for their briefings.

As we have already heard, it is clear that the 2016 reforms are not working. Rather than listening to overseas domestic workers and reinstating the original ODW visa, the 2016 changes ignore the need for workers to be able to exercise their rights before exploitation escalates. Support organisations such as Kalayaan and Voice of Domestic Workers report the bind in which the current situation leaves many such workers. Do they risk leaving before abuse escalates? If this abuse does not equate to trafficking, they could be left destitute, without a reasonable prospect of finding work and without access to public funds or legal aid to challenge mistreatment. The desperate need to remit money to one’s family and pay off debts means that workers may not feel able to risk leaving exploitative labour situations.

Professor Williams argues that key to understanding the problems faced has been the shift from placing ODW protection within an employment and immigration rights frame to a trafficking frame. The problem with the latter is that it puts the onus on the worker to prove that they have been trafficked when their exploitation may come from daily infringements of what should be their rights as workers. It leaves them more vulnerable to these infringements, not less.

Kalayaan has given me a recent case study that exemplifies the problem. I will go into some detail because it makes the case rather well. Jenny—not her real name—is from the Philippines. She comes from a poor family but, having won a scholarship to train as a teacher, she was unable to finish her training for various reasons. She later married and gave birth to a daughter who caught an aggressive form of pneumonia, which needed specialist costly private treatment. Jenny and her husband had to borrow money to pay for it. Their joint income could not cover the loan repayments, which prompted Jenny to look for work abroad.

Jenny moved to Lebanon to work as a cleaner. Her employer gave birth to a third child; Jenny was instructed to look after the baby as well as continue her cleaning duties, which was not in her contract. She worked longer hours than expected and was on the go and on call for much of the day. She had wanted to return home at the end of her first contract but was persuaded to stay when the family relocated to London. She was offered shorter working hours and pay at the national minimum wage.

Jenny arrived in the UK last year on a visa. In contravention of UK published policy, she was issued no information on her rights as a worker in the UK, either during the visa application process or on arrival. She worked the same long hours as before and, although she was paid a little more than in Lebanon, her hourly rate was less than half the national minimum wage. Her employer told her that she would be arrested if she left. Nevertheless, she did leave because she was exhausted from her long working hours for pay less than she had been promised.

Jenny approached Kalayaan when her visa had two weeks before it expired, having only just heard of the organisation. Kalayaan explained to her that her visa was non-renewable and that while she had permission to work in the UK, it would only be while her visa remained valid—for the next two weeks—after which she would be subject to the UK’s hostile/compliant environment for migrants. On the basis of Kalayaan’s assessment, it did not consider Jenny to be a victim of trafficking or slavery, so could not refer her to the NRM.

It is worth noting here that even cases that Kalayaan has judged appropriate for NRM referral are frequently turned down on the grounds that, while the working conditions may have breached employment terms, they do not constitute trafficking or slavery. Yet calls for the reinstatement of the original ODW visa are repeatedly met with the response that workers who have suffered abuse can avail themselves of the NRM.

Despite experiencing labour law violations, Jenny’s right to change employer was in practice of no use to her, given that she was not allowed to renew her visa. Had she entered the UK on the original kind of ODW visa, she would have remained visible to the authorities by renewing her visa annually, while contributing in taxes and visa renewal fees. Jenny’s case underlines how unhelpful it is to require maltreated migrant domestic workers to fit themselves into the slavery or trafficking frame, and how their rights would be better protected through the restoration of the original ODW visa.

Professor Williams also argues that the issue should be seen in an international context, where there have been very important advances in employment rights for domestic workers. In particular, ILO Convention 189 on domestic workers has been ratified by 35 countries—but not the UK. Ironically, when the convention was voted on, the UK Government abstained on the grounds that the UK already had a progressive policy—the OWD visa—which they then went on to withdraw. Will the Government therefore now rethink their position and restore the ODW visa without further delay?

Lord Green of Deddington (CB)
My Lords, I support Amendment 183 in the name of the noble Lord, Lord Wallace of Saltaire, which I am cosponsoring along with the noble Baroness, Lady Bennett, and the noble Lord, Lord Rooker. I do not always agree with the Lib Dems, but I think the noble Lord’s arguments were very powerful and need to be listened to. The effect of this route is to sell permanent residence in the UK, and later even citizenship, to anyone who turns up with a couple of million to spare, with no questions asked about where that money came from. It is an extraordinary outcome. I can see why one might have thought this was a good idea initially, but it has turned into a nonsense.

As the Committee may know, this route is for individuals able to make an investment of £2 million. The applicant does not need a job offer or sponsor, and the visa includes all immediate family members. The tier 1 investor visa is initially granted for three years and four months and can then be extended for another two years by providing evidence of an investment of the required amount. The funds must be invested in UK gilts, bonds and equities only—of course, the money can be taken out of those afterwards, so it is a very convenient little entry for your money.

Currently, if you invest—so called—£2 million, you will get your permanent residence in five years; if you have £5 million to spare, it is three years; and if you have £10 million in your pockets, it is two years. The whole thing is just absolutely absurd, frankly. Indeed, between 2008 and 2020 it has led to a total of more than 12,000 such visas being issued. There is not even any economic benefit to the UK in this. According to Sir David Metcalf, a former chair of the Migration Advisory Committee, in 2014,

“the main beneficiaries are the migrants. Investors benefit from, for example, rule of law, property rights and access to efficient markets. Second, at present, the investment is a loan, not a gift.”

A MAC report from 2015 noted that the main proponents of this type of visas are—guess what—law firms, accountants and consultancies that help organise the affairs of such extraordinarily wealthy investors. There are also speculative concerns around whether this investor visa is being used by criminals. In an October 2015 report, Transparency International UK argued that it was highly likely that substantial amounts of corrupt wealth stolen in China and Russia had been laundered into the UK via this visa programme.

It is not clear what will happen to the tier 1 investor visa under the new points-based system—at least, it is not clear to me—but it seems that it will remain in place. I suggest that a thorough review is in order and, meanwhile, the route should be closed, as set out in this amendment.

Lord Faulks (Non-Afl)
My Lords, I am happy to join the noble Lords, Lord Green and Lord Wallace, and others who have brought this amendment. I may not agree with all that the noble Lord, Lord Wallace, says, but I share with him a passion for the rule of law and a real concern for our reputation for protecting the rule of law. It is a real irony that our reputation for protecting the rule of law is one of the things that attracts people who have very little regard for the rule of law themselves and come from countries which ignore it almost altogether. I am afraid that this Government and their predecessor have a very inadequate record in responding to the threat of corruption of all sorts, and of course I support the proposals in this amendment.

In 2016, the then Prime Minister, David Cameron made a seminal speech about the importance of stamping out corruption. The Minister will remember the Criminal Finances Act 2017 and what a nuisance I was during its passage. I found it inadequate in a number of respects, including unexplained wealth orders, which I did not consider were nearly tough enough. I also put down amendments to try to persuade the Government to establish a register of overseas entities’ property, in order to try to reveal a great deal more about who actually owns vast parts of London. The noble Baroness was emollient and responded that as soon as parliamentary time allowed, there would be an appropriate response. I was slightly reassured by that. I continued to harry the Government. I asked the noble Lord, Lord Young, when he was a Minister, about the progress of matters. He was reassuring—none more reassuring than he—and said good progress was being made.

18:00:00

In 2018, when the Sanctions and Anti-Money Laundering Bill came before your Lordships’ House, I put down a similar amendment with the noble Lord, Lord Hodgson of Astley Abbotts, on the register of beneficial owners of overseas entities. The matter progressed through Committee and was debated at some length. It then came to Report, when I was fully prepared to take it to a vote. I was in the Conservative Party then and it was not a popular decision. Quite frankly, I was leant on. I was leant on by No. 10 Downing Street and summoned to a meeting of officials from all sorts of different departments, who told me it was very unfortunate that I was going to do this because the matter was in hand.

I was then told, from the Dispatch Box, that the Bill was a priority for the second Session. It would be introduced by 2019 and the register itself would be operated by early 2021—sooner, if possible. I suppose I then received the prize for being a naughty boy; I was asked to chair the Joint Committee on the draft Bill. We looked at it in 2019. It was an excellent Bill that had been very well prepared by some skilful civil servants. We responded, stressing that time was of the essence. The Government appeared to accept our recommendations.

What has happened? Absolutely nothing. In the meantime, frankly, we look like a laughing stock. We are not responding to the threat of economic crime. We are giving away visas and the rest of the world must think we simply do not care. I thoroughly support this amendment.

Lord Berkeley of Knighton (CB)
My Lords, it is a pleasure and privilege to make this trio of noble Lords—of naughty boys—into a quartet led by the noble Lord, Lord Wallace, because I strongly support all the points that have been made. On this occasion, I am talking not about people with millions of pounds, but about domestic workers, mentioned in the amendment from the noble Baroness, Lady Hamwee. Here, there is another financial imperative for the Treasury, because I have long thought that we force people into the black economy because they simply cannot find a legal way to stay here.

I suggest to the Minister that this amendment would at least help a lot of people to come out into the open and pay taxes. If they could extend legal visas, those people would not go into the black economy and extend that uncontrolled area of work.

Lord Kerr of Kinlochard (CB)
I support all three amendments in this group and particularly that of the noble Lord, Lord Wallace, for two reasons. First, it gives me a rare and particular pleasure to say that I strongly support an amendment in the name of the noble Lord, Lord Green of Deddington, among others. His dedication has been remarkable throughout these debates, and this is the first time I have agreed with what he has said.

Secondly, there is just one element missing from the powerful case for this amendment made by the noble Lord, Lord Wallace. It is partly filled by the remarkable speech made by the noble Lord, Lord Faulks, and it is about reputation. The noble Lord said that we have become a laughing stock worldwide but, in America and large parts of continental Europe, it is worse than that. People are not laughing; they think it is beyond a joke. I strongly recommend this amendment to the Minister.

Earl Attlee (Con)
My Lord, I strongly support the basic thrust of Amendment 183 in the name of the noble Lord, Lord Wallace of Saltaire. I do so having regard to the negative effects of the system of tier 1 visas, both in our own country and overseas. The first undesirable effect of this dirty money is on the economy of London; in particular, the cost of housing being pushed up to unaffordable levels by foreign so-called businessmen seeking secure investments, as explained by the noble Lord, Lord Wallace. My noble friend Lord Faulks identified a lack of progress by the Government in this area.

I accept that there may be some business opportunities in meeting the demand and providing both professional and artisan services to tier 1 investors. Personally, I would not want to earn my living from dirty money, in effect stolen from people of overseas countries. The noble Lord, Lord Wallace, explained this with his usual skill. Not only do some of these tier 1 investors illegally suck money and assets out of their own country to enjoy in ours but they take full advantage of our well-developed system of justice and the rule of law—JROL. This means that they can keep their assets secure and also enjoy a reliable means of passing them on to their offspring. Of course, they have no incentive to seek to implement any decent form of JROL in their own country because it is not in their interests to do so. The lack of JROL and the negative effects of corruption mean that countries such as Russia, and many developing countries, will never be able to achieve their full economic potential.

For instance, defence equipment apart, I cannot think of any manufactured product that comes from Russia. No wonder it has an economy the size of Italy’s, despite its natural wealth, larger, if declining, population, and vast space. It is not for us to interfere with the internal arrangements of other sovereign states, but if we denied oligarchs, the super-rich and despots of countries without JROL the safety and advantages of a safe landing and base in UK and other similar countries, they might be more inclined to seek to put their own countries in order. This would have enormous economic benefits and other benefits for the people of those countries.

I turn to the problem of Ukraine. It is clear that any invasion by Russia will result in severe sanctions against Putin’s regime, including Russian tier 1 investors in the UK who are judged to be close to Putin. I am confident that the Government are planning such potential sanctions as we speak, although the likely targets will already have taken precautionary action. However, if our worst fears are realised, we should go much further and hit all Russian tier 1 investors, whether they are President Putin’s friend or foe. That way, they might be more inclined to get off their posteriors and put pressure on Putin and maybe even think about improving JROL and press freedom in Russia. Furthermore, this course of action would not adversely affect the inhabitants of Russia.

We cannot continue to allow filthy, dirty money to come into the UK via the tier 1 investor visa route, because it pollutes our economy, damages the economies of other countries, and seriously erodes our soft power position.

Lord Rosser (Lab)
Amendment 174 would return rights to people in the UK who are on the overseas domestic workers visa—primarily, the right to change their employer and renew their visa for a period of not less than 12 months. The then coalition Government changed the visa regime in April 2012, so that workers and their immigration status are tied to their original employer, and their visa cannot be renewed past six months. That has caused real concern that the working people involved are tied into situations of abuse and slavery. The cross-party Joint Committee on the Draft Modern Slavery Bill, as it then was, said that the changes to the regime had

“unintentionally strengthened the hand of the slave master against the victim of slavery.”

It concluded:

“Tying migrant domestic workers to their employer institutionalises their abuse; it is slavery, and is therefore incongruous with our aim to act decisively to protect the victims of modern slavery.”
 

In 2015, the independent Ewins review called for all overseas domestic workers to be given the right to change employer and apply for further leave to remain in the UK for up to 30 months. It found that the terms of the domestic worker visa were

“incompatible with the … protection of overseas domestic workers’ fundamental rights while in the UK”.

Unfortunately, the Government disagreed with the recommendation; instead, they made more limited changes to the Immigration Rules, with the effect that all domestic workers can change employer during their six-month visa, but only those who are found to be victims of trafficking or modern slavery can change employer and apply to stay for longer in the UK. The problems with this limited approach were set out in the Ewins report: they failed to provide an immediate escape route out of abuse; the six-month limit makes it difficult for people to find other employment; and the national referral mechanism requirement means that a person must have taken the step to report, and met an evidential burden to prove, that they are victim of slavery, which, frankly, many are too frightened to do. We certainly support the thrust of Amendment 174.

Amendment 181 would exempt international volunteers from paying the immigration health surcharge, and I await the Government’s response with interest. I would like to know what consideration the Government have given to extending the exemption, and have the Government met charities which have raised concerns about its effect on volunteering in particular sectors, especially social care?

Amendment 183, about which most has been said—with some feeling and fervour—would require the Government to suspend the tier 1 investor visa route, known as “golden visas”, until the review into those visas has been made public. In its 2020 Russia report, the Intelligence and Security Committee recommended that a key measure for

“disrupting the threat posed by illicit Russian financial activity”

is an

“overhaul of the Tier 1 (Investor) visa programme—there needs to be a more robust approach”.

In March 2018, the Government announced a review of golden visas issued between 2008 and 2015. This followed revelations that the Home Office and banks had made next to no diligence checks in that period. According to a freedom of information request in June 2021, the Home Office is reviewing 6,312 golden visas, half of all such visas ever issued, for a range of possible national security threats. Almost four years since the Government announced the review, and as has been said more than once this evening, the findings have not yet been reported.

Many of those who received visas during this period will have been eligible to apply for British citizenship over the past seven years, and it is surely essential that there is full transparency about the findings of the review, including: a detailed breakdown of how many visas have been revoked; how many cases have been referred to law enforcement; and how many applications for renewal or citizenship have been denied.

In the Commons last month, Stephen Kinnock MP asked the following question:

“Six months ago, the Government said that they were finalising their report into how more than 700 Russian millionaires were fast-tracked for British residency via their so-called golden visa scheme. Can the Foreign Secretary tell the House when that long-overdue report will be published?”
 

The Foreign Secretary’s reply was:

“We are reviewing the tier 1 visas that were granted before 5 April. I am sure the Home Secretary will have more to say about that in due course.”—[Official Report, Commons, 31/1/22; col. 60.]
 

Therefore, I ask the Minister, speaking on behalf of the Government: does the Home Secretary have “more to say” about this tonight? We are all waiting to hear why it has taken so long to produce this report. In the absence of a credible explanation, one can conclude only that there are some embarrassing reasons that have led the Government to delay producing this report.

18:15:00

The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have spoken in this debate. I thought it might be helpful to slightly unpick the two types of workers—the difference between domestic workers in households and those who work for UK-based diplomats. Obviously they are different groups with different needs, the latter being served by the temporary worker international agreement route, which permits dependants. This is not the only aspect of our domestic immigration system that already provides what the amendment proposes. Both groups of workers are free to change employers; in fact, our existing arrangements already go further than the amendment proposes, and I will outline why.

We do not expect domestic workers to register with the Home Office because we want a worker to be able to leave as soon as their mind is made up to do so, so we must avoid anything that may act as a barrier to exercising that right. Imposing an extra condition now risks undermining changes that have been made for the better. We have already made provisions under which both groups of domestic worker can obtain a two-year extension of stay if they are found to be a victim of modern slavery. I think these arrangements strike the right balance, ensuring that those who find themselves in an abusive employment situation are able to escape it by, first, finding alternative employment and, secondly, encouraging them to report that abuse through the appropriate mechanism.

On the point made by the noble Baroness, Lady Lister, on overseas domestic workers who are not slavery victims, very similar to the case that she has pointed out, but are actually exploited, the Immigration Rules are deliberately designed to prevent the importation of exploitive practices—for example, they set out that they should be paid the national minimum wage. I hope that helps on her point. I appreciate that the case she outlined seemingly falls between the cracks, but the Immigration Rules are very clear on that.

Baroness Lister of Burtersett (Lab)
The fact is that I do not think it is an unusual case; I asked Kalayaan for a recent case study and that is what it came up with. The Immigration Rules are not working in that respect. We have overseas domestic workers who are being exploited but, even when they are referred to the NRM, are told that it is not slavery or trafficking. Would the Minister be willing to look at that again? There is a problem, as she put it, of some people falling through the cracks.

Baroness Williams of Trafford (Con)
I am not going to look at it again but I will perhaps explore it further and see why what is happening is happening. That is probably fair enough.

Lord Green of Deddington (CB)
Is the Minister aware that, in some countries, applicants choose those families that come to London regularly in the summer, with a view to leaving them after a month or two and settling, legally or otherwise, in the UK? The system needs to be fairly tight to avoid trouble on that front.

Baroness Williams of Trafford (Con)
Between what the noble Lord has just outlined and what the noble Baroness, Lady Lister, has just said, that probably explains both ends of the system in different ways.

On visa extensions, although I fully support the noble Baroness’s determination to improve protections for migrant domestic workers, rewinding the clock and reinstating the features of a route that were deliberately removed almost a decade ago is not the answer—probably, in part, for some of the reasons that the noble Lord, Lord Green of Deddington, outlines.

The overseas domestic worker visa caters specifically for groups of visitors who by definition stay for short periods. That visa allows private domestic staff to accompany their employer where that employer enters the UK as a visitor and where they intend to leave together. Approximately 20,000 visas are issued every year on that basis, and the vast majority leave well within the validity of their visa.

The amendment seeks to reintroduce features of the route which were removed for good reason. We must not forget that abuse existed before 2012 and be mindful that allowing overseas domestic workers to stay could inadvertently create a fresh cohort of recruits for traffickers. We must avoid a route that could be used by criminals to entice victims to come to the UK.

Noble Lords have referred to the report, commissioned by the Government, by James Ewins QC, which, crucially, did not establish a direct link between the length of stay and the likelihood of exploitation. Years later, this picture remains. There is no greater risk if a domestic worker is here for two weeks or 12 months, so increasing the length of time that they can stay will not afford them greater protection from being exploited.

I think that the noble Baroness and I share the same objective of the delivery of a safe and appropriate system for a very vulnerable category of workers. However, for all the reasons that I have given, we do not agree on the means of achieving it.

I am aware of comparisons that have been made between those employed in the healthcare sector who are exempt from the health charge and those who come to the UK as volunteers. However, there are very clear and important distinctions between workers and volunteers on the charity worker visa. The route should not be used to fill gaps in the labour market, even on a temporary basis. To answer the question asked by the noble Lord, Lord Rosser, yes, we have been engaging with charities. The Government think that appropriate immigration concessions are already in place, which support volunteers on this route. The charity worker visa offers a low fee, compared to other work routes, and sponsors pay a lower licence fee, in recognition of their charitable status. While the charity worker route is the main route for volunteers, it is not the only way in which volunteers can be recruited to support the work of charities.

I note the concern of the noble Lord, Lord German, that the immigration health charge might deter volunteers from coming to the UK. Published figures indicate that, for the years immediately preceding the pandemic—clearly the years after that are very unusual—the number of charity visas granted remained broadly consistent. This indicates that volunteers are not being deterred by having to pay the health charge.

The NHS must continue to be properly funded and the immigration health charge plays an important role in that. It has generated almost £2 billion for the NHS since its inception, and it ensures that temporary migrants who come to the UK for more than six months make a direct contribution to the comprehensive range of NHS services available to them during their stay. Those who pay the charge can, from their point of arrival in the UK, use the NHS in broadly the same way as a permanent resident, without having to make any prior tax or national insurance contributions. For those reasons, I hope that the noble Lord, Lord German, will not press his amendment.

On Amendment 183, I hear noble Lords loud and clear. I recall the debate that my noble friend Lord Faulks and I had during the Criminal Finances Bill. I also completely acknowledge the point about those relying on funds that have been illegitimately acquired. It is because of those concerns that we have committed to a review of visas issued under the route between 2008 and 2015. We are finalising the review, if noble Lords can be patient, and we will publish it in due course—I knew there would be a sigh from behind me and in front of me when I said that.

Lord Rosser (Lab)
Four years is quite a long time to produce a report. Why has it taken four years to date and why are the Government still in a position where they cannot really give any proper indication of when it will be produced? “In due course” is the cop-out expression for a Government who do not really know.

Baroness Williams of Trafford (Con)
My Lords, I will have to think of a new phrase: perhaps “shortly”.

Lord Rosser (Lab)
Is it this year?

Baroness Williams of Trafford (Con)
Yes, I hope that it will be this year.

Baroness Williams of Trafford (Con)
I say to noble Lords that I share their concerns. I will also be writing to the Committee before Report on this very matter. Since 2015, we have excluded investment in government bonds and strengthened the rules to ensure that investments are made in active and trading UK companies. Applicants must also demonstrate that they have a wealth of at least £2 million for at least two years, up from 90 days, or provide evidence of the source of those funds. We require banks to explicitly state in a letter to the Home Office that they have completed all requisite customer due diligence and know your customer checks prior to opening the applicant’s account, and we have increasing evidential requirements where migrants have invested their qualifying funds through a chain of intermediary companies so that the Home Office can better assess the ultimate destination of qualifying investment.

Lord Wallace of Saltaire (LD)
My Lords, I hope the Home Office has consulted the FCDO on this issue. The Minister will be aware of the report from the Center for American Progress in Washington which argues—and this is the conventional wisdom in Washington as far as I can see—that we are the weak link in the West’s relations with Russia, and the reason why we are the weak link is because of this large colony in London with such close links to Putin.

Baroness Williams of Trafford (Con)
My Lords, I acknowledge all the points that the noble Lord has made and agree that there is more to be done here. I do not think anyone could deny that. The Criminal Finances Act was a start and there is more to be done in this space, most definitely, but I think I will leave it there. I hope, with what I have said, that the noble Baroness will be happy to withdraw her amendment.

Baroness Hamwee (LD)
My Lords, my noble friends both made very powerful cases. I hope that my noble friend Lord Wallace will forgive me if I make only one comment on his amendment, in fact in response to what the Minister said about banks checking up: I wonder whether the banks check up on the holders of golden visas as often as they check up on noble Lords who are PEPs.

With regard to my amendment, like the noble Baroness, Lady Lister, I ask why we would have been asked to propose this amendment if there were no problem. I regarded the registration with the Home Office as a sort of olive branch, something that might make the Government feel a little more comfortable. The Immigration Rules are not working because there is not the distinction to which she and I have referred.

The noble Lord, Lord Berkeley of Knighton—how is “Berkeley” pronounced? I should know from hearing him on the radio—referred to the financial aspect of this and forcing people into the black economy. It is wider in respect of people who are here irregularly, of course, because it is hugely important. But it is exactly the same as the point made by the Minister that if the situation were changed it would provide a group of people who would be—I wrote it down—a cohort for traffickers, but that is exactly what the danger is now. I am puzzled and disappointed but clearly we are not going to make progress today, so I beg leave to withdraw the amendment.

Amendment 174 withdrawn.

Amendment 174A not moved.

Clause 68 agreed.

Clauses 69 and 70 agreed.

18:30:00

Clause 71: Electronic travel authorisations

Amendment 175

Moved by

175: Clause 71, page 74, line 16, at end insert—
 “(c) the individual is travelling to Northern Ireland on a local journey from the Republic of Ireland.”  Member’s explanatory statement
 Under this amendment, persons who are neither British nor Irish would nevertheless be able to make local journeys from the Republic of Ireland to Northern Ireland without the need for an Electronic Travel Authorisation.

Baroness Ritchie of Downpatrick (Lab)
My Lords, the amendment is in my name and those of the noble Baroness, Lady Suttie, and my noble friend Lord Coaker. Its purpose is to ensure that persons who are neither Irish nor British would nevertheless be able to make local journeys from the Republic of Ireland to Northern Ireland without the need for an electronic travel authorisation. Clause 71 amends the Immigration Act 1971 to introduce electronic travel authorisations. It provides for a pre-entry clearance system which requires anyone who does not need a visa, entry clearance or other specified immigration status to obtain authorisation before travelling to the UK. This includes journeys within the common travel area; indeed, the clause has been expressly formulated to ensure that CTA journeys are captured.

This system does not apply to British or Irish citizens or those who have already been granted leave to enter or remain in the UK. The system will impact mainly non-visa nationals, including EU nationals, who can presently enter the UK visa-free for set periods. Almost all such persons are presently automatically considered to have deemed leave to enter the UK when crossing into Northern Ireland on the land border. It is believed that new subsection (4) in Clause 71 has been drafted intentionally to ensure that persons who are travelling within the CTA and consequently would not need leave to enter the UK will still require an ETA.

In preparing for this amendment today, I spoke to both the Human Rights Commission and the Equality Commission based in Belfast, which have commitments under Article 2 of the Ireland/Northern Ireland protocol in all these matters. I spoke also to the Committee on the Administration of Justice, and my noble friend Lord Coaker and I spoke to representatives of the Irish Government based in the Irish embassy, who are deeply concerned about the impact of Clause 71 on tourism, not only in the Republic of Ireland but in Northern Ireland —for those people who come in to have a holiday via Shannon and Dublin airports and then move northwards.

It appears that the UK Government intend the scheme to apply on the land border and, so far, are dismissive of concerns raised. This looks very much like it is in breach of Article 2 of the Ireland/Northern Ireland protocol, which deals with specific rights of individuals. The clause shows a total lack of understanding of the border, which has many crossings. The noble Lord, Lord Patten of Barnes, who served in Northern Ireland as a former Minister and was chair of the Patten commission on policing, will be well aware of the geography not only of Northern Ireland but of the border area. I am sure that he would very clearly see the issues involved.

The situation for some time has been that almost all EU, EEA and non-EEA citizens who are non-visa nationals present in the Republic of Ireland can cross the land border freely on local journeys into Northern Ireland without any requirement for prior immigration permission. In some ways, the Bill conflates modern slavery issues with immigration, as well as with the necessities of an economy and tourism.

It has been the case for some time that citizens who are non-visa nationals present in the Republic of Ireland can cross the land border freely on local journeys into Northern Ireland, without any requirement for prior immigration permission. For EU-EEA citizens since Brexit, as was already the case with other non-visa nationals, permission in such circumstances is restricted to entry as a visitor and certain activities, such as work, are restricted when entering the UK this way. However, this system has allowed non-visa nationals resident in border areas in the Republic of Ireland to enter Northern Ireland freely for a range of activities, even visiting family members or for work purposes. I am aware of people who do that; they contribute to the economy in the Republic but have family in the north, and vice versa.

Under this new proposal, non-visa nationals resident in the Republic of Ireland will be required to apply in advance and pay for an ETA before crossing the border into Northern Ireland. It is clear that this will have a detrimental impact on non-visa nationals who need to enter Northern Ireland for activities such as visiting family, accessing childcare, carrying out permitted work engagements and accessing services and goods. This system will also impact the ability of members of the migrant community to take part freely in cross-border projects and programmes. I am sure the noble Viscount, Lord Brookeborough, living in County Fermanagh, will be well aware of these issues for people who are resident or working in Counties Monaghan, Cavan and Donegal.

Concerns have also been raised about the impact of the ETA system on business, health and tourism, plus recreational issues, as it would require non-visa nationals in the Republic of Ireland to obtain an ETA before a visit to Northern Ireland, a fact that has been recognised and raised directly with the Home Office by the Irish Government. This would have an impact on tourism in Northern Ireland, as many people travel via Dublin and Shannon airports and head northwards. Therefore, the Government’s ETA proposal will impact detrimentally on tourism and economic opportunities in Northern Ireland. It will act as a disincentive to people from North America coming northwards to visit the Mourne Mountains in my own area and the Giant’s Causeway in north Antrim, which are both geographical icons. My noble friend Lord Coaker will be aware of this from his time as shadow Secretary of State, when I travelled with him round the constituency of South Down.

In the context of an invisible land border that British and Irish citizens can freely cross, it is eminently foreseeable that many other persons who have hitherto been able similarly to cross the border without any prior permission will be largely unaware of the ETA requirement. There are legal impacts to this. I am a member of the protocol sub-committee in your Lordships’ House. We wrote to the noble Baroness, Lady Williams of Trafford, with a series of questions on 14 January. To my knowledge, we have not yet received an answer. We asked whether she would specify

“who will be required to have a valid ETA, and any exceptions to this; the form or manner in which an application for an ETA may be made, granted or refused; any conditions that must be met before an ETA application can be granted; the grounds on which an ETA application must or may be refused; the validity of an ETA (length of time and/or number of journeys); and the form, manner, or grounds for varying or cancelling an ETA”.

I hope the Minister answering this debate will be able to provide the Committee with some answers this evening and will exhort his colleague, the noble Baroness, Lady Williams, to reply to the chair of the protocol sub-committee. I ask again: can the Minister confirm whether holders of a frontier worker permit will be exempt from the requirement for a valid ETA? Will there be any other exemptions or special arrangements for people crossing the land border frequently from the Republic of Ireland?

It would be preferable if ETA requirements did not exist or were not applied when travelling from the Republic of Ireland to Northern Ireland. I understand that much discussion has taken place. I exhort the Minister to give such commitments here this evening. If he cannot, can he give a commitment that the Government are prepared to come back with an amendment on Report to deal with this matter and cancel ETA in such circumstances, because it is utterly crazy? Can the Minister specify what the results of those discussions have been? If the Government do not wish to adopt my amendment, will they bring forward an amendment on Report to deal with these issues?

I also agree with Amendment 175ZA in the name of the noble Baroness, Lady Hamwee. Although it is very much an exploratory amendment, it is a very important one that is allied to mine. I agree too with the amendment in the name of my noble friend Lady Chakrabarti, which I have also signed. It deals with the birthright commitment under the Belfast/Good Friday agreement and the onus on the Government to report on progress in giving effect to the nationality provisions of that agreement. We should always remember that the Belfast/Good Friday agreement states that people can identify themselves as

“and be accepted as Irish or British, or both, as they may so choose.”

For my part, I hold an Irish passport. I am Irish and I declare myself to be Irish, although I live in the UK—which I freely recognise.

I look forward to the Minister’s response. I thank noble Lords who will speak in support of these amendments, and I hope that the Minister brings us some positive news tonight, or that he indicates what the Government might do on Report.

Baroness Suttie (LD)
My Lords, I will speak in favour of Amendment 175 tabled by the noble Baroness, Lady Ritchie of Downpatrick, to which I have added my name. I also support Amendment 175ZA, in the names of my noble friends Lord Paddick and Lady Hamwee, and Amendment 186, tabled by the noble Baroness, Lady Chakrabarti.

I will be brief because I fully support and agree with the very powerful points made by the noble Baroness, Lady Ritchie. As it stands, the Bill does not give proper consideration to the economic and legal implications for the island of Ireland. Amendment 175 would amend the Bill so that all local journeys from the Republic of Ireland to Northern Ireland, including for people who are neither British nor Irish, could continue to be made without the need for electronic travel authorisation.

I will highlight three areas of concern about the proposals as they stand and would very much appreciate a response from the Minister. The first is the question of legal uncertainty. If the Home Office remains committed, as I sincerely hope it is, to no checks on the land border on the island of Ireland, how will it enforce this new measure in practice? As the noble Baroness, Lady Ritchie, has said, thousands of crossings are carried out each day by non-British and non-Irish residents in the Republic of Ireland who need to cross the border for work, leisure, family or educational purposes. There is currently no requirement or expectation that people carry passports if they live or work in the border areas. Given the very particular circumstances of the border areas in Ireland, I would be grateful if the Minister could explain how these measures will be enforced in practice.

The second area of concern is how these measures will sit with the existing commitments on the common travel area, as set out in the Northern Ireland protocol. The protocol sets out quite clearly that, irrespective of nationality, the rights and privileges contained within the common travel area will continue

“with respect to free movement to, from and within Ireland for Union citizens and their family members”.

Can the Minister confirm that this will continue to be the case?

18:45:00

My third and final point is the issue, raised by the noble Baroness, Lady Ritchie, of the potential economic impact of these measures on the Northern Ireland economy, most particularly the potentially very detrimental impact on tourism. Tourism is a major part of the economy in Ireland. Previously, American tourists, for example, arriving on the island of Ireland would have the expectation of free travel across the island for the duration of their visit. They would expect to be able to travel completely freely between Dublin, Belfast and Donegal during their stay. Has an economic assessment been undertaken on the impact of these measures? In particular can the Minister say whether any studies have been undertaken on whether the requirement for an ETA might discourage tourists from travelling to Northern Ireland from the south during their visit—and the consequent impact on the Northern Ireland economy?

In summary, I believe that these measures have not been properly thought through, and I urge the Government to think again and accept these amendments.

Viscount Brookeborough (CB)
My Lords, I support the amendment moved by the noble Baroness, Lady Ritchie. I had not necessarily thought about saying anything, but she mentioned me in her speech. First, I declare an interest in that we are involved in tourism at home. Secondly, my brother is chairman of Tourism Ireland, a cross-border body that survives on funds from both the United Kingdom and Ireland to market the island of Ireland. Therefore, this particular regulation would make a complete fool of the whole practical implementation of it.

People ought to understand what the border really is—or, in fact, what it is not. We have come through all the Troubles. Before them, we had a border and we had to have certain papers to cross it. Then we all joined the European Union and that side was taken out of it. But then we had the Troubles so, in effect, the border was reinstated, albeit for a different reason. We do not have those border checks now; there is no border under the Good Friday agreement and everything since, including the protocol. That is the way it should be. Whether the noble Baroness and I are supporters of the protocol is neither here nor there; it is about the practical problems raised by this.

Whether tourists from another country cross the border, and who polices this, is of course an issue. In fact, they will not know whether they are crossing it, so it becomes rather ridiculous—on the whole, they do not have a clue. During the Troubles, there was a time when even our own British people—soldiers and police—did not know whether they were crossing it, so they used to draw yellow lines on it so that they knew when they were. A certain part of the population moved the yellow lines, so they still did not know where they were and then there were diplomatic incidents.

I live in County Fermanagh, which is one-third of the border in Northern Ireland. The border does not just affect it in terms of regulations—people cross it not just from day to day but time and time again in one direction or another to do very simple things. I know that you can use euros here if you are pushed, but every shop and business there uses euros and pounds. Therefore, half the time, no one has a clue whether they are in the north or the south, even when they walk into a shop. All the people working there, and of course the ones who are straightforward British or Irish, are not covered by this.

However, a wealth of people who are not British or Irish live and work within a few miles of the border and they do not think twice about it. If you cannot get a plumber very locally—we might get one from further afield anyway—you just ring up the nearest person. We are five miles from the border and he could well be from either side of it, and he might not be an Irish or British citizen.

I entirely support this amendment. I know that what I have said is not technical and I can only be very grateful to the noble Baroness, as we all can, for going into it in such detail because there is very little for us to say, except for the Government to sort it out.

Baroness Hamwee (LD)
My Lords, I support the amendment moved by the noble Baroness, Lady Ritchie, and spoken to by other noble Lords. I was grateful, too, to have been briefed by the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission. I did not need to be convinced of the importance of local journeys for work, education, health services, shopping, frontier workers and so on. I was lucky enough to be a member of the EU Select Committee of the House during the transition period, when we heard direct from people living and working in Northern Ireland about the concerns which the amendments in this group address.

I want to speak particularly to Amendment 175ZA. The points raised in it apply more widely than to the Northern Ireland/Republic of Ireland border. I certainly do not want to suggest that there is greater concern about criminals in the Republic than at other borders. I am not quite sure why these proposals come to be in the same group but I understand why there is a concern to get through the remaining amendments. The point is relevant to the border and there is a practical problem, as the noble Viscount just said.

My noble friend Lord Paddick is concerned about checks on the criminal record of an individual, now that we are no longer a member of the EU or have access to SIS II or ECRIS. We have to fall back on the Interpol database, which requires specific uploading of information and is not integrated with our police national computer or with member states’ national systems.

The report of the EU Security and Justice sub-committee on post-Brexit arrangements in that area is due to be debated on 25 February. I know that the Minister will deal with the points in the report then. I was going to say that I was sorry to see she does not get that Friday off, but it is never off for a Minister, is it? The points in it are relevant to Northern Ireland.

My noble friend Lord Oates has Amendment 180, which is not in this group, on physical proof of status. This amendment relates to the points that I know he will make and asks the very pertinent question: what happens when the digital system malfunctions? I am normally a glass-half-full person but that is pertinent to everyone, especially at this land border.

I noted, and think it deserves to be mentioned here, that the Constitution Committee of your Lordships’ House has reported in the following terms:

“The House may question why the detail of the Electronic Travel Authorisation scheme introduced under clause 71 is not set out in the Bill.”
 

It is because the scheme has not been worked up—at any rate not to completion, as I understand it. The report continues:

“If it is appropriate to make such provision in immigration rules, the House may expect it to be subject to a form of affirmative procedure, at least for the establishment of the scheme.”
 

The committee is saying much more delicately what I said the other day: we should not be expected to deal with criminal offences, as it was that day, arising from the scheme when we do not know what the scheme is. That also applies here.

Baroness Neville-Rolfe (Con)
My Lords, I thank the noble Baronesses, Lady Ritchie of Downpatrick and Lady Suttie, for raising this issue, and I think some very good questions have been asked. I have a different question. In the absence of an electronic travel authorisation, are there problems in enforcing immigration, asylum or indeed criminal law? Can we be reassured that there would not be an incentive for people who want to come to the UK to come in large numbers through the Republic of Ireland? That would be my one concern in trying to address the very real issues across the border that have been identified, and which you see in other countries where you have borders—especially where there has been a practice of having no border.

Baroness Ludford (LD)
My Lords, I will very briefly give support from these Benches to all three of these amendments. They all demonstrate the practical consequences of Brexit. I declare a bit of an interest on Amendment 175—not that I am neither British nor Irish but that I am both British and Irish. In fact, I have been Irish from birth without for a long time realising it, but I have now just got my passport, so I am a dual national.

But it makes no sense—and the noble Viscount, Lord Brookeborough, gave very graphic examples of how silly it is to try to stop people crossing the border. It is not just about tourism; it is about work and business. Surely it is not in the spirit of the good relationship that we have with the Republic of Ireland, or of the Belfast agreement, or of everything that we want to work, Brexit or no Brexit—or despite Brexit. We want to have very good relations on the island of Ireland. I am not sure how it would actually work, but trying to stop people would be a nuisance, to put it at its mildest, and harmful from every direction.

On the point about the ETA system having to rely on the clunky Interpol system, my noble friend reminded me that we are going to be debating the report from the noble Lord, Lord Ricketts, in a couple of weeks. We do not have access to SEIS or ECRIS, or other EU instruments, and this is not good for operating an ETA system. So it would be very good to hear from the Minister whether he has anything positive to say about how to remedy the practical consequences, to use a neutral word, of Brexit, both for internal travel on the island of Ireland and for how the ETA system can work optimally.

Lord Moylan (Con)
Perhaps I, too, should declare that I am both British and Irish since birth. I understand the difficulties locally that potentially arise and have been so well illustrated by the noble Viscount, Lord Brookeborough, but I wanted to ask the Minister whether he could put this in the context of the common travel area. Does it really exist in practice as a reciprocal arrangement? I specifically ask because I have never been able to land at Shannon Airport, even on a direct flight from Heathrow, without standing in a queue and presenting a passport—yet when I return and land at Heathrow, I walk straight through and am guided past the passport gates. To what extent is this common travel area being operated by the Irish Republic on a genuinely reciprocal basis? Could it not in a sense be tied up with this issue?

19:00:00

Lord Coaker (Lab)
I will add my voice of support to my noble friend Lady Ritchie. It is good to have the perspective that she brings to this Committee. Our institutional memory in Parliament, in this place and the other place, with respect to Ireland is not as great as it was. It is a perspective that needs to be brought here more often, so this is an important little debate. I think the noble Viscount, Lord Brookeborough, will agree.

I say to the Minister that, whatever the rights and wrongs of all this—and I agree with what my noble friend said—it plays into the narrative that the Government do not have a grip with respect to Ireland. The consequences of that, as the noble Baroness, Lady Suttie, pointed out, are absolutely and potentially really difficult. Even if people are non-British or non-Irish, if they have to have an ETA to cross the border, how on earth is that going to work? Practically, at the end of the day, if it is worth having, somebody will have to check it. I know that it does not apply to British and Irish citizens, but suppose, as a British man, I have an American wife or a French girlfriend; we go to Northern Ireland and somebody checks it—with the history of the police and security forces checking documents. The Government have to wake up to this. Unless the Minister can get up and say, “We’re going to sort this and this is what’s going to happen”, it will drift on and on and the consequences will be potentially really difficult.

It is no wonder that the Irish Government and various organisations across the whole of the UK and Ireland are saying that the Government need to get a grip on this. It is ludicrous. I gave an example. The noble Viscount, Lord Brookeborough, will know far better than me. What about somebody who for years has lived a mile across the border, has a mixed marriage in terms of nationality—somebody who is a British or Irish citizen married to an American—and wants to go shopping or to a hotel four miles down the road that happens to be in Northern Ireland? Do they need an ETA?

This is one of those things about which people outside Parliament say, “Do you know what you are doing?” Frankly, this is something that is so serious, and all the time we are looking at it we are trying to resolve it. It is difficult. It raises issues that you do not appreciate. If only you understood how difficult it is. Well, I do understand how difficult it might be, and I also understand this: the border, for reasons that we all know, whether it is drawn in Ireland or down the Irish Sea, has consequences that are enormous for the people of Ireland and for people here.

The Government have to sort this out in a way that commands respect and agreement from all communities. The amendment that my noble friend Lady Ritchie has brought before us is important, but I implore the Government: whatever the rights and wrongs of getting into Shannon Airport, whoever is right about whether it is seen as a back-door way of getting into the UK, et cetera—and I should say that the Irish Government have visa requirements as well, which will influence how people come in, so that may be one of the answers —it just has to be resolved. There has to be more than a ministerial, “We understand the importance of this and the difficulties, and that it needs to be sorted out”. The frank reality is that the time for sorting it out was yesterday, not today or tomorrow. It is about time that the Government got a grip of this, otherwise there will be very serious consequences further down the road.

Lord Sharpe of Epsom (Con)
My Lords, I thank noble Lords very much for participating in this short but powerful debate. I thank the noble Baroness, Lady Ritchie of Downpatrick, and second the point of view of the noble Lord, Lord Coaker, that you bring—I said “you” again; I am very sorry—an interesting and unusual perspective to this debate. I thank her for that. In answer to the noble Baroness’s question about the letter to my noble friend Lady Williams of Trafford, the noble Baroness will have a reply in a week that will outline the details she asked for.

The Government are clear: there will continue to be no routine immigration controls on journeys to the UK from within the common travel area, and none whatever on the land border between Ireland and Northern Ireland. That will remain the position when the ETA scheme is introduced.

It may be helpful if I explain that all individuals, other than British and Irish citizens, arriving in the UK, including those crossing the land border into Northern Ireland, already need to enter in line with the UK’s immigration framework. I think this goes some way to answering the point raised by the noble Lord, Lord Coaker, about the hypothetical American wife or French girlfriend. I think it also deals with the point made by my noble friend, Lady Neville-Rolfe. For example, visa nationals are required to obtain a visa for the UK when travelling via Ireland, otherwise they are entering illegally. We are therefore applying the same principle to individuals requiring an ETA who enter the UK via Ireland without one.

The noble Baroness, Lady Ritchie, referenced Article 2 of the protocol. The Government consider that the ETA scheme is compliant, and they will continue to consider their obligations under the protocol with regard to this. I want to reassure the noble Baroness that the process for obtaining an ETA will be quick and light touch. I am told that it will be not dissimilar to acquiring an American ESTA, which I am sure many noble Lords are familiar with. As many people will know, that is very straightforward and easy. Once granted, an ETA will be valid for multiple journeys over an extended period, minimising the burden on those making frequent trips, including those across the Northern Ireland border. I perhaps should have said that I have had considerable experience of crossing that border on numerous occasions.

In terms of the specific questions on the CTA, as far as I am aware, it has nothing to do with Brexit. It predates Brexit does it not? It goes back to 1923 and partition I think, from my dim and distant memory. I am sure I will be corrected if I am wrong. All CTA members are firmly committed to protecting the common travel area. I will reiterate this point: even with the introduction of ETAs, there will be no routine immigration controls on arrivals to the UK from elsewhere in the common travel area—only intelligence-led controls with no immigration controls whatever on the Ireland/Northern Ireland land border. Given the tone of the debate, I hope noble Lords will allow me to keep reiterating that point.

Baroness Ritchie of Downpatrick (Lab)
I thank the Minister for giving way. Could he outline to the Committee how these ETAs will operate. Where will the work be carried out? How will people complete the necessary requirements and what will be the cost? These are the issues that the people are asking. They do not want ETAs to be a disincentive to tourism, the local economy or business generally.

Lord Sharpe of Epsom (Con)
I thank the noble Baroness for that intervention. I am going to come on to a number of those points subsequently. In terms of cost, I am told it will be competitive with international norms. I have just referred to the ESTA programme in the States. I looked that up this morning in anticipation of this, and it is currently $14, so it is not overwhelming. In terms of the enforcement, which I think is at the heart of the matter, I will come to that in a second if I may.

There will be no controls whatever on the Northern Ireland land border. Individuals will be able to continue to pass through border control at first point of entry to the common travel area. As is currently the case, individuals arriving in the UK, including those crossing the land border into Northern Ireland, will need to continue to enter in line with the UK’s immigration framework. Obviously, that includes the ETA.

Many noble Lords, including the noble Viscount, Lord Brookeborough, have asked about the impact on tourism. The Government acknowledge that a clear communication strategy is obviously going to be key to tackling any misunderstanding about the requirements to travel to Northern Ireland. We are planning to work across government, utilising internal and external stakeholders and a variety of communication channels to ensure that the ETA requirement is communicated very clearly.

Viscount Brookeborough (CB)
Can I just make one point? Northern Ireland is the size of Yorkshire. What the Minister is really stating is that somebody who goes on holiday to Yorkshire must not go to a neighbouring county for any reason without complying with this regulation. I am terribly sorry, but this is complete and utter rubbish. It is nonsensical and it is not going to work. What do people do if they go touring in Yorkshire? They tour outside it. If tourists go to Ireland, why should they not simply tour Ireland? No amount of communication will do—I am very sorry—and there is nobody to police it. What the Government are talking about is simply unworkable and disastrous.

Lord Sharpe of Epsom (Con)
I thank the noble Viscount—sort of. There will be no hard border. As I said, there is not going to be a hard border in Northern Ireland, and within the CTA there is effectively no change.

In answer to the point made by the noble Baroness, Lady Suttie, about enforcement, which was brought up subsequently as well, I have said it three or four times now: there will be no routine border controls on journeys from within the common travel area, which goes some way to answering the Yorkshire example. There will be none at all on the land border between Ireland and Northern Ireland. Everyone entering the UK, regardless of where they enter from—again, as I have said—is required to meet the UK’s immigration framework. In answer to “What’s the point of having it, then?”, anyone entering the UK without an ETA, or any form of immigration permission where required, will be entering illegally and may be subject to enforcement if encountered during intelligence-led operational activity.

Lord Coaker (Lab)
I say gently to the Minister that he has to be really careful with language on things such as conforming to immigration policy and the UK border. The historic context of some of the language that he used means that he has to be really careful when talking about moving across borders or even saying that there will not be a border control but talking about complying with UK immigration policies.

Lord Sharpe of Epsom (Con)
I completely understand the point that the noble Lord, Lord Coaker, is making. I promise him that I am sticking very closely to the script. I am well aware of that.

I think I have dealt with most of the questions, albeit probably not to noble Lords’ satisfaction. What I cannot do, I am afraid, is commit to coming back on Report with anything, but obviously I am going to reflect very carefully on the tone of this debate—to go to the point made by the noble Lord, Lord Coaker—and take that back to the department.

Turning to Amendment 175ZA, I assure the House that the Government will conduct robust identity and suitability checks before granting an ETA. We will use the information supplied in the ETA application form to check against our watchlist system. However, as I am sure the noble Lord and the noble Baroness will understand, I cannot go into details of the exact checks that applicants will undergo or how those checks will be conducted, as to do so could undermine our ability to secure the UK border. Such a detailed commentary could provide those people whom we want to prevent from travelling to the UK sufficient information to attempt to circumvent our controls, undermining the very objective of the ETA scheme and the wider universal permission-to-travel requirement to enhance the security of our border.

The noble Baroness, Lady Hamwee, asked about what has happened since we left the European Union and lost access to the European Criminal Records Information System and the Schengen Information System. The UK participated only in the law enforcement aspects of SIS II, meaning that we could not, and did not, use SIS II information for immigration purposes. Therefore, having returned to the Interpol channels, we are now routinely exchanging information with EU member states on persons of interest, including missing and wanted individuals, and on lost and stolen documents. Moreover, through the EU-UK Trade and Cooperation Agreement, we continue to share criminal records with the EU for law enforcement purposes, including to assist criminal proceedings and for public protection. This is almost identical to the arrangement that we had under ECRIS as an EU member state.

I assure noble Lords that the confirmation of an individual’s status prior to travel will be a matter for the Home Office and their carrier. The onus will not be on the individual to produce evidence of their status to a carrier; instead, carriers will be expected to check and confirm with the Home Office that an individual has an appropriate permission before they bring them to the UK. It is our long-term ambition for all carriers operating scheduled services across all modes—air, rail and maritime—to use interactive advance passenger information, or iAPI, systems to provide passenger information to the Home Office in advance of travel. In return, passengers will receive confirmation of permission to travel prior to boarding.

iAPI is already a well-established mechanism used around the world, particularly by other countries that already operate travel authorisation schemes. None the less, the Home Office will undertake rigorous systems testing to ensure that our messaging to carriers works before the scheme goes live. We expect the likelihood of a technical malfunction occurring to be negligible.

In the unlikely event that a technical malfunction does occur—

Baroness Neville-Rolfe (Con)
I wanted to ask my noble friend about what happens when there is a technical malfunction, but I think he was going to answer that question. Having been caught out when the ESTA system went down when I was trying to go to California, I ended up missing my flight and having to go via Seattle, which took another eight or nine hours. It is important to have strong technical systems if you are going to rely on them, but it may be that there is a waiver or some arrangement that can be introduced.

19:15:00

Lord Sharpe of Epsom (Con)
I completely agree with my noble friend: obviously it is important to have well-established protocols in place if such a thing happens. I can assure noble Lords that the Home Office will ensure that passengers are not disproportionately impacted or prevented travelling to the UK. As is already set out in Clause 72, we will not penalise carriers where, due to a Home Office systems outage, it is not possible for them to establish an individual’s status.

On Amendment 186, the Government are steadfastly committed to the Belfast agreement and the two distinct birthright provisions in it: the right to identify and be accepted as British, Irish or both; and the right to hold British and Irish citizenship. In recognising the birthright of the people of Northern Ireland in respect of identity and confirming their birthright in respect of citizenship, the Belfast agreement is clear in guaranteeing that these rights already exist. It expressly and clearly said how and where the law should be changed in many areas but it made no such stipulation on this particular matter of identity.

This amendment would require the Home Secretary to propose stipulating a particular view of identity in law. Doing so would risk impinging on the freedom of the people of Northern Ireland to choose what their identity means to them. It would also amount to treating an integral part of the United Kingdom differently. The Government cannot accept such a proposition; nor can they accept an amendment that is contrary to the intention of the Belfast agreement.

I am aware that some of these answers have not satisfied noble Lords. As I said, I will reflect the tone of this debate back to the Home Office very carefully. I am also aware that I have not answered my noble friend Lord Moylan’s question about reciprocity; I am sure that he will forgive me for not even attempting to do so.

I invite the noble Lords not to press their amendments.

Baroness Ritchie of Downpatrick (Lab)
I thank all noble Lords who have contributed to this debate from across the Committee. I say to the Minister that I happen to agree with the noble Viscount, Lord Brookeborough: the proposal in Clause 72 is a nonsense and will be unworkable, not because people will not want it work but because it will be dysfunctional both physically and operationally. It will act as a disincentive to tourism and business, as well as to societal arrangements because many non-Irish and non-British people who live in the Republic of Ireland have family in Northern Ireland. There will be preventions there.

I urge the Minister to reflect on all the contributions that have been made today in his discussions with the Home Office. Again, I suggest that we will probably come back on Report with a further amendment on this issue because we do not want impediments placed in the way of our tourism industry, our economy, our business and the normal day-to-day travel of people who live on both sides of the land border, which is largely invisible as it stands. Noble Lords who have travelled a lot will know exactly what we are talking about.

For those reasons, I rather reluctantly beg leave to withdraw my amendment but reserve the right to bring it back on Report.

Amendment 175 withdrawn.

Amendment 175ZA not moved.

Clause 71 agreed.

Clauses 72 and 73 agreed.

Clause 74: Counter-terrorism questioning of detained entrants away from place of arrival

Amendment 175ZB

Moved by

175ZB: Clause 74, page 79, line 7, leave out subsection (3)

Baroness Hamwee (LD)
My Lords, the short point that my noble friend Lord Paddick wanted to make, as he generally does, in leaving out Clause 74(3) is that, again, this seems to conflate immigration and terrorism. It extends powers to question people about involvement in terrorism at the border and applies the powers to people being detained under a provision of the immigration Acts, and so on. The objection runs like a thread through the Bill, to so many points. Immigration and terrorism are not the same. Not all terrorists are immigrants. Terrorists who have succeeded in the UK have been British, and if the Government allow, in legislation, the bias implied by the conflation of these two, no wonder others display the same bias. I beg to move.

Lord Rosser (Lab)
This clause would extend the use of Schedule 7 to the Terrorism Act to people who have been detained under the immigration Acts and transported outside of a port or border area. Schedule 7 can be an important tool in the prevention of terrorism, but it has had a chequered past at times. It has been improved in recent years by the work of independent reviewers of terrorism legislation, two of whom we are now fortunate to have as Members of this House.

I have three or four questions for the Government on the provisions of Clause 74. Have the Government consulted on the extension of the power? Has the change been requested and, if so, by whom or by what body? Can the Minister give more detail on the scale of the problem this is designed to address? How many individuals are officers unable to stop and question under the current arrangements? How was the period of five days arrived at? For those who travel through conventional routes, does not the power have to be used pretty much immediately, in which case five days is a considerable extension? Finally, the powers apply provided an officer “believes” that the person arrived at sea, was apprehended within 24 hours of arrival, and it has been no more than five days since they were apprehended. What will that “belief” that the officer is required to have be based on? It would be helpful if the Government could give some responses to those questions.

Lord Sharpe of Epsom (Con)
I thank both Members of the Committee for their remarks. Schedule 7 examinations have been instrumental in securing evidence to convict terrorists, yielding intelligence to detect terrorist threats and supporting the disruption or deterrence of terrorist activity. Currently, officers may exercise Schedule 7 powers only when an individual is located within a port or border area as defined in the Act. Clause 74 will provide an added layer of protection to the existing processes in place for dealing with those who arrive irregularly by sea in the UK. I think that goes some way to answering the question of the noble Lord, Lord Rosser—they are arriving irregularly outside of ports. The Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, has stated:

“In principle, people arriving irregularly in the United Kingdom should be liable to counter-terrorism examination as much as those arriving at sea ports and airports.”
 

This clause ensures that, for those arriving irregularly by sea, such as via illegal channel crossings, this will continue be the case.

There are several reasons why those who engage in illegal channel crossings can be moved to a different location from their place of arrival very quickly after arriving. They can range from weight of numbers to the need to move the vulnerable or those in need of medical attention to more appropriate facilities. It is impractical and inhumane to keep large groups of people port side in order to give counterterrorism police an appropriate opportunity to exercise their current powers under Schedule 7.

I reassure noble Lords who tabled the amendment that this is by no means an attempt to treat all migrants arriving in this manner as terrorists, or to stop and examine large numbers of people away from ports and borders. Schedule 7 is not designed and cannot be used as a universal screening mechanism, and Clause 74 has been deliberately drawn to provide an appropriate time window for counterterrorism police to exercise their powers under Schedule 7.

To remove the effect of Clause 74 would impact our ability to determine whether those who are entering the UK in this way are involved in terrorism, impacting our national security. It would continue a scenario where those who arrive in the UK by conventional means are subject to powers to determine involvement in terrorist activity, whereas those who have arrived irregularly by sea, and about whom we have very little documented information, may not be.

I cannot answer precisely who has been consulted on this, other than the Independent Reviewer of Terrorism Legislation, and obviously the counterterrorism police will have a keen interest in how this debate develops. To answer on the numbers, this concerns those arriving irregularly by sea, outside established ports, under the existing rules. I could not tell you how many there are. The other questions impinge on operational matters, on which I am not qualified to comment. I therefore ask the noble Baroness to withdraw the amendment.

Baroness Hamwee (LD)
My Lords, the Minister said there is a deliberate time limit to these powers. I may be reading this wrong, but they apply to

“the period of 5 days beginning with the day after the day on which the person was apprehended”.

It is not five days from entry or arrival. I am not sure whether that would alter those points that the Minister suggested we take into account. But, since we are not even half way through the groups of amendments, I had better just beg leave to withdraw the amendment.

Amendment 175ZB withdrawn.

Clause 74 agreed.

Clause 75 agreed.

Clause 76: Tribunal charging power in respect of wasted resources

Debate on whether Clause 76 should stand part of the Bill.

Baroness Hamwee (LD)
My Lords, the noble Baroness, Lady McIntosh, has her name to the opposition to Clause 76 standing part of the Bill. I am happy to pick this up briefly, as she has had to leave.

Clause 76 gives the tribunals a charging power in respect of wasted resources. I do not know whether it is aimed at lefty, liberal lawyers, a group to which I would be proud to belong, although I do not think I quite qualify—lefty maybe, liberal certainly, but I am an ex-lawyer.

I am trying to read my notes, but I cannot understand what I wrote last night.

Baroness Chakrabarti (Lab)
Perhaps while the noble Baroness looks at her handwriting, as a lefty, liberal lawyer, I say briefly to the Minister that the immigration and asylum system is the most unlevel playing field in our legal system. Tribunals were set up, as the Minister will remember, with the aim of people being able to represent themselves, not as places for expensive lawyers.

In the end, what happens is that the Home Office has some of the best lawyers in the country at its disposal, all the way up to the noble Lord, Lord Pannick, while refugees and asylum seekers struggle. The idea that the people who represent those refugees and asylum seekers in tribunals are going to be under threat of wasted costs will cause concern. It sends a signal that this is part of the Home Secretary’s agenda in her war on “activist lawyers” and whatever. This is not judicial review; we are talking about the tribunal system. We are not talking about people like me and the noble Lord, Lord Pannick, getting involved in the Miller 1, Miller 2 and Belmarsh cases—this is about people’s appeals. That is possibly the concern behind the amendment.

19:30:00

Baroness Hamwee (LD)
That is very kind of the noble Baroness. My handwriting is perfectly clear; it is just that it makes absolutely no sense for me to have written down the word “goodness” in the middle of this.

My short point is: is this really necessary? Are there not adequate discretionary powers in the tribunals to consider whether a legal representative has acted improperly or unreasonably and has wasted tribunal resources? What assessment has been made of the deterrent effect of this on taking on cases in the First-tier Tribunal or Upper Tribunal? It would damage our system if fewer lawyers felt prepared to do so. The clause extends to negligence but that is another matter; it is between a client and his lawyer and is surely a matter for the civil courts. Any award of damages would then go to the claimant, not, as is provided here, into the consolidated fund.

I have two amendments in this group that would allow for a charging power but for it not to be mandatory. Surely there are procedures for making, as it were, procedure rules. Those should be followed rather than the Government imposing this out of the blue through the medium of this Bill.

Lord Rosser (Lab)
As we indicated in Committee in the Commons, we think that the provisions in these two clauses are unnecessary and should be removed from the Bill. The Bill requires the Tribunal Procedure Committee to give the tribunal the power to fine individuals exercising a right of audience or a right to conduct litigation, or an employee of such a person for “improper, unreasonable or negligent” behaviour. There are also issues about wasted costs. That kind of formulation could certainly have a somewhat chilling effect on the willingness of solicitors to take on difficult cases for fear of risking personal financial liability. I suppose that it might also extend to Home Office presenting officers, who would be similarly liable under the measure, but no doubt someone would pay any fine or penalty that they got so no need to worry as far as they are concerned.

As far as we are concerned, the immigration tribunals already have all the case management costs and referral powers that they need to control their own procedure. Giving new powers to immigration tribunals without  establishing a basis in evidence for them is surely not warranted. The clauses will therefore make it harder for lawyers acting for people with immigration cases to do their job in immigration hearings. Surely all lawyers have a responsibility to uphold the rule of law and they are strictly regulated by several bodies to ensure that they act to the highest professional standard.

Frankly, and I think that this relates to the point that my noble friend Lady Chakrabarti was making, in acting for people subject to immigration control, among other things, immigration lawyers work with clients who may lack funds and legal aid entitlements, whose documents may be incomplete, missing or badly translated and whose statements as to their past experiences may be hard to secure on account of the ill treatment that they have suffered in their country of origin.

We share the concerns of the Immigration Law Practitioners’ Association and the Law Society that immigration lawyers are being needlessly targeted by the new costs orders and charge orders, which are not necessary and do not apply in other areas of law. Surely it is a well-established fact that access to justice includes equal protection under the law. That principle admits of no distinction between British nationals and foreign nationals, and those who are subject to UK law are entitled to its protection. Clearly this is aimed—put bluntly—at foreign nationals.

I am not sure that the Government have particularly argued their case. I have not really heard the evidence adduced to support the proposition being made or indeed to demonstrate that existing case management powers, wasted costs powers or the powers to refer to the regulator are inadequate to deal with such matters. Frankly, there must be a feeling that this is a proposal from a Home Office that does not like to see so many of its decisions overturned and wants to create the image that somehow it is due to foul play on the part of immigration lawyers, and not to a degree of incompetence from the Home Office in dealing with cases in the first place, that so many get overturned or that proceedings are taken at a fairly late stage in the process. If the Government are to deny that this is the case, it would be helpful if they could set out why and what their evidence or reason is for needing these powers, when surely those powers already exist as far as the tribunals are concerned.

The other point is that the measures could create the risk of a conflict of interest, because solicitors could find that doing the right thing for their client or following their client’s instruction puts them at risk of having to pay a financial penalty if somebody decides that that is acting in an unreasonable way. One might have thought that alarm bells would be ringing in the Home Office at the idea of putting in place a procedure that will, as I said, apply only to lawyers operating on behalf of non-nationals. As was said quite clearly in Committee in the Commons, a lawyer

“could go along to the immigration tribunal and do something”

that they

“might do without facing consequences in the social security tribunal, employment tribunal, tax tribunal or any other tribunal”.

It looks as though some special provisions are being made in the case of immigration tribunals that could  lead to some sort of financial penalty having to be paid and that do not appear to apply in other tribunals. No doubt the Minister will want to comment on that.

If we really want to know a reason for the Government’s decision, I think that it came from the reply received in Committee in the Commons. The Minister said:

“Costs orders are rarely made and are generally considered only at the request of the other party. To encourage more use of those existing powers, clause 63”—
 

as it was at that stage—

“provides a duty on the tribunal procedure committee to introduce tribunal procedure rules in the immigration and asylum chamber, which will lead judges to more regularly consider making a wasted costs order or an unreasonable costs order, or the new tribunal costs order introduced by clause 62”—

as it was then. He went on:

“That will ensure that circumstances and behaviours that have warranted the making of costs orders previously will more often give rise to judicial attention.”—[Official Report, Commons, Nationality and Borders Bill Committee, 2/11/21; cols. 575-76.]
 

There does not appear to be much of an argument that the existing powers are not there; it is just that the Home Office has decided that the judiciary is not using them sufficiently often to its liking, so it is bringing in these two clauses. This could lead to some of the consequences I have already mentioned. They clearly apply only to immigration tribunals and not other tribunals, and only to foreign nationals and not British nationals, even though there is meant to be equality for those being dealt with under UK law. I do not say it with any hope, but ask anyway that the Government think carefully about the road they are going down with these two clauses.

Lord Sharpe of Epsom (Con)
My Lords, I thank the three noble Lords who have taken part in this debate. I should note for the record that I do not see the opposers of Clauses 76 and 77 in the Chamber, but I will carry on.

The Government are committed to making the immigration and asylum system more efficient, while also maintaining fairness, ensuring access to justice and upholding the rule of law. Representatives and participants have a role in ensuring that appeals run smoothly so that justice is served. We are aware that there are concerns about the behaviour of some representatives in immigration proceedings which can waste judicial and tribunal resource, leading to delays in the tribunal process overall. We are seeking to strengthen the tribunal’s ability to tackle such conduct, in order to improve the efficient running of the immigration tribunals.

Costs orders are one of the mechanisms available to tribunals to encourage good conduct in proceedings. Currently, tribunals can make wasted and unreasonable costs orders which relate to the legal costs of the parties. However, these mechanisms are infrequently employed and generally considered only at the request of the other party. Clause 76 creates a new power for tribunals to order a party to pay an amount which represents a portion of the tribunal’s costs. I should stress and expand on the costs we are talking about. The value of costs orders to be applied to specific behaviours will be calculated by the tribunal according to a defined schedule of typical costs to it, rather than being set at an arbitrary or punitive level. The tribunal will not seek to recoup all its costs relating to a particular case, just the portion which can be attributed as wasted due to the specified unreasonable behaviour.

This will allow the tribunal to make an order in relation to wasted tribunal resources in the same types of circumstances which would currently warrant a wasted or unreasonable costs order. An order can be made against “relevant participants”, which means legal and other representatives exercising rights of audience, and the Secretary of State, where they are a party and do not have legal representatives. The noble Baroness, Lady Hamwee, asked whether this might act as a deterrent and ensure that fewer representatives want to take on immigration work. We think it right that representatives should explain themselves if they are responsible for circumstances to be set out in the rules as warranting consideration of a costs order. However, where there is a reasonable explanation, no order would be expected; the tribunal continues to have full discretion as to whether to make the order. Therefore, these changes should not impact legal representatives who fulfil their duties to the court and remain committed to their work and ensuring justice for their client. I hope that also goes some way to answering the questions raised by the noble Baroness, Lady Chakrabarti.

Lord Rosser (Lab)
On the basis that the Government have a very clear idea of how many instances there are of unreasonable behaviour, how many of the cases dealt with over the last 12 months fall within the category of unreasonable behaviour, for which the Government would expect these costs orders to be activated?

Lord Sharpe of Epsom (Con)
It will not surprise the noble Lord that I will have to write to him with those details, if I can get them; I do not have them.

Lord Rosser (Lab)
I would certainly be interested to see them.

Lord Sharpe of Epsom (Con)
To encourage increased consideration of whether to make costs orders, Clause 77 provides a duty on the Tribunal Procedure Committee to introduce tribunal procedure rules in the Immigration and Asylum Chamber, which will lead to judges more regularly considering whether to make a wasted costs order, an unreasonable costs order or a tribunal costs order under the new Clause 76 provision. That will ensure that circumstances and behaviours which have warranted the making of costs orders previously will more often give rise to judicial attention. Existing case law identifies the types of circumstances and behaviours which have led to costs orders being made or considered, and the principles applied by the courts. These have included showing a complete disregard for procedural rules through, for example, abusing court processes in relation to evidence or the timing of applications.

Clause 77 requires procedural rules which identify circumstances or behaviours that, absent reasonable explanation, the tribunal will treat as warranting consideration of the making of a costs order. The rules thereby introduce a presumption that requires the representative or other relevant party responsible for such circumstances or behaviour to explain themselves and why such a costs order should not be made. To ensure fairness, Clause 77 applies both to the party’s representatives and to the Home Office direct. This will ensure the regular consideration of costs orders by the tribunal. However, importantly, the tribunal will retain absolute discretion as to whether to make an order at all in all cases.

19:45:00

Amendments 175ZC and 175ZD to Clause 77 would reduce the mandatory nature of the provision to a more passive one. This would work against the Government’s intention for this clause, which is to encourage the more frequent consideration of costs orders where they may be warranted, while upholding the tribunal’s discretion to decide whether an order should be made.

I promised to try to get those details for the noble Lord, Lord Rosser, and I will do so, but for the reasons I have outlined, I urge noble Lords to withdraw their opposition and not press Amendments 175ZC and 175ZD.

Baroness Hamwee (LD)
My Lords, I apologise to the House that I am my noble friend Lord Paddick, who opposed the clause standing part. We are not quite interchangeable—I made an assumption there—but I opposed it too.

Clause 76 agreed.

Amendments 175ZC and 175ZD not moved.

Clause 77 agreed.

Clause 78: Pre-consolidation amendments of immigration legislation

Amendment 175A

Moved by

175A: Clause 78, page 81, line 20, leave out from “State” to end of line 24 and insert “must, no later than 31 December 2025, publish draft primary legislation to consolidate the Acts relating to immigration.
 (1A) The Secretary of State must consult such persons as are appropriate during the period of six months following publication and shall report the result of the consultation to Parliament.”Member’s explanatory statement
 This amendment removes the Henry VIII power in Clause 78 and replaces it with a duty to consolidate immigration law. It further requires consultation on this draft consolidation.

Baroness Hamwee (LD)
My Lords, on Tuesday the noble Lord, Lord Wolfson, brought into the Chamber the Criminal Law Handbook and referred to its size. “Handbook” is a bit of a misnomer because lifting it could break one’s wrist, but it is as nothing compared to the immigration legislation and the Immigration Rules. The rules are too many to print; one has to access them online—unless things have changed in the last year or two.

Clause 78 allows the Secretary of State, by regulations, to make “amendments and modifications” such as are

“desirable in connection with, the consolidation of the whole or a substantial part of the Acts”

listed. Perhaps it is a secondary point to remark on the potential confusion of consolidating a part of, but not the whole of, an Act. We know the difficulties with regulations—certainly, we in the Opposition would call them difficulties—the problems of scrutinising and debating them, and the impossibility of amendment.

We have been promised the consolidation of immigration law for I do not know how many years. Has it got stuck in the quagmire of legislation, or is it just that it is too difficult? It is obviously recognised that there is a problem, but I am not convinced that Clause 78 is the solution: I think it may be an addition to the problem. More in hope than expectation, I have tabled Amendment 175A—Amendment 176A is consequential on it—in order that we publish draft consolidating legislation by the end of 2025 and then consult on the work.

I do not know whether I am doing an injustice to what is proposed. Clause 78(4) proposes that regulations be made after consolidation of

“the whole or a substantial part of the Acts.”

That gives rise to potential confusion. The big question is whether the Minister has news of the consolidation exercise. I find it a little odd to provide here for regulations that cannot be made until after this long list of Acts is consolidated. I beg to move.

The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
I advise the Committee that if this amendment is agreed to, I will not be able to call Amendment 176 by reason of pre-emption.

Lord Rosser (Lab)
As the noble Baroness, Lady Hamwee, has said, this clause gives the Secretary of State the power by regulation to amend immigration legislation in order to make pre-consolidation changes for the purpose of facilitating a consolidation Bill. It provides a power for the Secretary of State, by regulation, to make those amendments and modifications to Acts relating to immigration that

“in the Secretary of State’s opinion facilitate, or are otherwise desirable in connection with”

the consolidation of the Acts. It also provides that regulations made under this section do not come into force unless a consolidation Act is passed.

The consolidation of immigration law has long been sought and is a recommendation of the Windrush Lessons Learned Review, which was published in July 2018 and said:

“It is widely accepted that immigration and nationality law is very complex.”
 

We strongly support the consolidation of our complex and unwieldy immigration law as recommended by the Windrush Lessons Learned Review, but we share the concerns already expressed about the provisions of this clause, not least the part that I have already referred to—namely, the extremely broad powers it seems to give the Secretary of State to amend and repeal provisions that

“in the Secretary of State’s opinion facilitate, or are otherwise desirable in connection with”

the consolidation of the Acts.

We support the addition of a requirement for the Secretary of State to consult appropriately before making regulations under this section. I hope the Minister, on behalf of the Government, may be able to give some encouragement on that score. Is it intended that the Home Secretary would consult before undertaking such a task? If not, why not? If so, would the Government see fit to include that requirement in the Bill?

I have another question on the issue of regulations under this section. On what issues or matters are regulations under the section necessary that could not be achieved in the primary consolidation Bill? There appear to be two stages. What is it that has to be achieved by these regulations, under which the Secretary of State has such broad powers, that could not wait or be enshrined in the primary consolidation Bill?

As I think the noble Baroness, Lady Hamwee, asked, can the Minister give the House an update on when we might be able to expect a consolidation Bill? Has the Law Commission been tasked to consider immigration statute? If so, what progress or otherwise is being made? I hope the Minister may be able to address some of the concerns expressed over the drafting of this clause, the possible interpretation of what it might mean and the powers that it might give to the Secretary of State.

Lord Stewart of Dirleton (Con)
My Lords, I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser, for their contributions to this debate. Amendments 175A and 176A remove the power to make regulations to facilitate the consolidation. We have to be clear about the scope of the regulation-making power. It cannot be used to make policy changes; it can be used only to ensure the future consolidation of the whole or substantial parts of the Acts relating to immigration listed in the clause. Subsection (4) is clear that regulations made under this power do not come into force unless such a consolidation Act is passed.

The regulation-making power is limited to changes to facilitate the consolidation, such as updating terminology and aligning any inconsistencies. It is standard practice to take such a regulation-making power when consolidating legislation, and this power is drafted in terms familiar to Members of the Committee.

The noble Baroness, Lady Hamwee, asked for news of the consolidation process, and the noble Lord, Lord Rosser, echoed that call. Without the power, any inconsistencies in many immigration Acts could not be resolved as part of consolidation; it would require further primary legislation, which would delay, potentially for some time, the important work to consolidate immigration legislation, which has started. The Law Commission has already started its work on consolidation, and it hopes to complete that work in 2023. It is unlikely that the timetable will be met if further primary legislation is required to address inconsistencies or issues which need to be resolved to facilitate consolidation and which could otherwise have been dealt with within regulations before the consolidation Act can be finalised.

Members of the Committee are concerned about the ability to change primary legislation by regulation. The regulation-making powers are necessary to ensure that if amendments are identified which facilitate or are otherwise desirable in connection with the consolidation, they can be made for that purpose, but I seek to provide the Committee with further reassurance that appropriate safeguards are in place. The safeguards are twofold. First, the regulations are subject to the affirmative procedure, so any attempt to go beyond what is necessary to facilitate consolidation can be identified in scrutiny by both Houses. Secondly, the Joint Committee on Consolidation Bills will review this Bill, ensuring that it does not start amending the law beyond minor corrections and improvements.

The amendments would also impose a duty to consolidate and a duty to consult. Amendment 175A requires publication of a draft Bill, a consultation and a report on that consultation within six months of publication. Under that amendment, there is no regulation-making power. I am grateful to the noble Lord, Lord Rosser, for reminding the Committee that the impetus behind consolidation of immigration law stems from the Windrush Lessons Learned Review, and these procedures follow from that recommendation that the simplification of immigration law be desirable. For the reasons given, I invite the noble Baroness to withdraw her amendment at this stage.

Baroness Hamwee (LD)
My Lords, the impetus started a long time before the Williams review. It is quite some time since I had a proper clear out of my filing cabinet in this building, and when I last did—many years ago—I found a whole lot of material relating to consolidation. I cannot remember whether I kept it or not. If the impetus had been acted on then, there would have been no need for the Wendy Williams recommendation or, more importantly, for what we all know happened to have happened. I thank the Minister for that really interesting response. I had not begun to appreciate the context of this clause, which is no doubt because of my failure to look at all the relevant information, as I could have done if I had researched it.

I take this opportunity to make a point about the regulations to which the Minister has referred, which will be necessary to enable the work that is being undertaken by the Law Commission. I ask that the Explanatory Memorandum for each of those statutory instruments—I assume that that is what they will be—explains fully why each is being proposed. Otherwise, it will be impossible for the outside world and difficult for our pressed Secondary Legislation Scrutiny Committee to understand what is going on and give the appropriate responses.

20:00:00

The Minister started by saying that this would remove the regulation-making power. Of course, that was done in order to enable the amendment that I proposed, which was for a different approach to consolidation—I just want to make that clear. The Constitution Committee welcomed the general purpose of the clause and urged the Government to proceed with consolidating immigration law, but it said that

“this does not get to the root of the problem, which is that the law in this area needs to be simplified and made more intelligible. We urge the Government to prioritise simplification, in addition to consolidation. As part of this process the Government should consider imposing a greater degree of parliamentary scrutiny over delegated powers relating to immigration law, including the immigration rules under section 3(2) of the Immigration Act 1971.”

That will be a familiar plea or cry. I beg leave to withdraw the amendment.

Amendment 175A withdrawn.

The Deputy Chairman of Committees (Baroness Henig) (Lab)
Is Amendment 176 not moved? Would the noble Baroness, Lady Hamwee, like to move it?

Baroness Hamwee (LD)
I would be delighted to move it and I apologise to the House.

Amendment 176

Moved by

176: Clause 78, page 81, line 24, at end insert—
 “(1A) The Secretary of State must consult with such persons as the Secretary of State considers appropriate before making regulations under this section.”Member’s explanatory statement
 This amendment requires the Secretary of State to consult before making regulations under this section.

Baroness Hamwee (LD)
As the noble Baroness, Lady McIntosh, is not here, I wanted to say that her point about consultation was well made, but what I think is particularly important in this group is Amendment 194A, in the name of the noble Baroness, Lady Ritchie, which should not be left until goodness knows what time. I beg to move.

Baroness Ritchie of Downpatrick (Lab)
My Lords, I rise to speak to Amendment 194A in my name and those of my noble friend Lord Dubs and the noble Baroness, Lady Hamwee. The bottom line is that, independently of each other, we have had various meetings with the Equality Commission and the Human Rights Commission in Northern Ireland, which are deeply concerned about the extent provisions in Clause 82—hence our amendment. It seeks to exclude Northern Ireland from the operation of Clauses 57, 58, 60, 61, 62 and 67 in order to ensure that there is no diminution of the rights of victims of trafficking in Northern Ireland and to avoid the potential breach of Article 2 of the protocol in this regard.

I urge the Minister and his colleagues in the Home Office to have discussions about this issue with the Executive Office in Belfast and both commissions because, first, certain provisions, which have been outlined by the noble Lord, Lord Morrow, underline that many of these issues are already devolved in Northern Ireland. Secondly, I urge them to do so because the Ireland/Northern Ireland protocol exists, and both those commissions have direct responsibility for ensuring that Article 2 of the protocol is adhered to and that there is no diminution of such rights—or such rights under the Belfast/Good Friday agreement.

What consideration was given to Article 2 of the protocol in the development of this legislation? I urge that Article 2 be considered and complied with throughout its implementation and the development of regulations and guidance. Depending on the answer that we receive this evening, we reserve the right to bring this amendment back on Report. I look forward to the Minister’s response on this issue, particularly about what consideration was given to Article 2 of the Ireland/Northern Ireland protocol in formulating and devising this legislation.

Lord Rosser (Lab)
We indicated in the debate on the previous group our support for the need both for the Secretary of State to consult before making regulations as part of consolidation and for the Secretary of State’s powers to be properly defined. For the same reason, we support the aim of two of the amendments in this group on consolidation and transitional and consequential provisions.

I will be particularly interested to hear the Minister’s response to the amendment in the name of the noble Baroness, Lady Ritchie of Downpatrick, which, as I understand it, reflects concerns raised by the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. As I think the Government will be only too aware following today’s debates, we do not believe that these clauses should apply in any part of the UK. Nevertheless, we also want to ask what specific consideration was given to the impact of the changes provided for in these clauses in the light of the withdrawal agreement and Northern Ireland protocol as negotiated by this Government and raised by the noble Baroness, Lady Ritchie. These are important issues that, if not handled properly, could potentially cause difficulties and further problems.

I hope that the Minister will be able to give the Committee some clarity on how the relevant clauses in Part 5 of the Bill interact with devolved matters and existing devolved legislation in Northern Ireland on modern slavery and trafficking. As my noble friend Lord Coaker indicated, the inclusion of Part 5 in the Bill was a bit of a surprise to many people. Were the devolved Administrations, not least that in Northern Ireland, consulted on these provisions in advance of the Bill being introduced? I echo the concerns raised by the NIHRC and the Equality Commission that the Government’s actions on modern slavery, including the provisions in this Bill, might serve to diminish existing rights and protections for victims. Obviously, I hope that, in his response on behalf of the Government, the Minister will be able to put any concerns expressed during this debate to rest. We await the Government’s response with interest.

Lord Stewart of Dirleton (Con)
My Lords, the Bill will not reduce the rights and protections in relation to modern slavery and trafficking. Accordingly, there can be no diminution of rights under Article 2 of the protocol. The Bill complies with all our international commitments, so I do not think that this amendment is necessary—in fact, I think that it could do harm. It could exclude some, but not all, of the Bill’s modern slavery provisions from extending to Northern Ireland, which would only create disparities across the United Kingdom. In turn, this would create a potentially damaging lack of certainty for potential victims of modern slavery and decision-makers.

I am not in a position to answer the request from the noble Baroness, Lady Ritchie, for an account of the consultation between the bodies that she identified and those preparing the Bill but, if she wishes, I am prepared to undertake to correspond with her on that topic if that would be satisfactory at this stage.

Baroness Ritchie of Downpatrick (Lab)
That would be very satisfactory indeed. I think it might be helpful for us to have discussions with both commissions to further clarify the issues, after reading Hansard as well.

Lord Stewart of Dirleton (Con)
With that, I would simply invite the noble Baroness to withdraw her amendment at this stage.

Baroness Hamwee (LD)
My Lords, I know that the lead amendment is Amendment 176, and I did not really speak to it, but I am very glad to have heard that offer from the Minister. As I think I said earlier, I also had a meeting with the two commissions, and I was very keen that the points raised by the noble Baroness could be pursued. But I beg leave to withdraw Amendment 176.

Amendment 176 withdrawn.

Amendment 176A not moved.

Clause 78 agreed.

Amendment 177

Moved by

177: After Clause 78, insert the following new Clause—
 “Afghan Citizens Resettlement Scheme
 (1) The Secretary of State must, in regulations subject to affirmative resolution procedure, provide for a resettlement scheme for Afghan citizens known as the Afghan Citizens Resettlement Scheme (“ACRS”).(2) There must be provisions within the ACRS to allow those who are fleeing persecution and have family members in the United Kingdom to apply for the Scheme.(3) For the purposes of this section, “family member” includes—(a) the spouse of the applicant;(b) an unmarried partner with whom the applicant is in a stable relationship;(c) any children of the applicant;  (d) a parent or guardian of the applicant;(e) an aunt, uncle or grandparent of the applicant; or(f) a sibling of the applicant.(4) Regulations under this section must be made and the ACRS must come into force within 30 days from the date of the passing of this Act.”Member’s explanatory statement
 This new Clause will place the Afghan Citizens Resettlement Scheme on a statutory footing and ensure that it includes provisions for a family reunion route within it.

Lord Coaker (Lab)
My Lords, in this group I have the lead Amendment 177, which puts the Afghanistan citizens resettlement scheme—ACRS—on a statutory footing and includes provisions for family reunion. Noble Lords will know that the ACRS finally opened on 6 January—the day after this Bill had its Second Reading. That was after a delay of five months. The scheme is separate to the ARAP scheme—the Afghan relocations and assistance policy—on which the noble Baroness, Lady D’Souza, had tabled her welcome and important amendment.

I have a number of questions and comments to make on this important group. The Government have promised to resettle up to 20,000 people under the scheme. I wonder whether the Minister has any idea about the time period in which the 20,000 will be resettled? What oversight mechanisms will be in place to ensure that the promise is delivered, and who will be included in that total? Ministers have promised that 5,000 people will be resettled under the scheme in the first year: how many of them are already here? Will the Minister tell the House how many additional people will be arriving under this scheme in the next six months—what the Government’s aim and estimate of that is?

The crucial point is that the Government have not included a family reunion route in the scheme, which this amendment seeks to address. The Government’s stated aim in the Bill is to prevent people making dangerous journeys, but does the Minister not agree with our concern that those who are at risk from the Taliban—and who have family in the UK or have family members who are resettled here—are at extremely high risk of taking desperate and dangerous journeys in order to be reunited?

We strongly support the Government seeking to provide safe and legal routes out of Afghanistan, but a family reunion stream must be part and parcel of that resettlement plan. The longer we do not act to provide a safe family reunion route, the more likely these dangerous journeys are to be made at the hands of people smugglers. There are significant numbers of people who are eligible for the scheme who have already fled Afghanistan due to the urgency of the danger they faced. Can the Minister give more information about how those who are now in a third state will be included in the scheme? We have waited five months for the scheme to be open at all; why is it that this route into the scheme has not opened yet?

Baroness D'Souza (CB)
My Lords, as the noble Lord, Lord Coaker, has said, my amendment falls within this grouping.

This new stand-alone clause would expand eligibility for the ARAP scheme by amending the Immigration Rules. It would insert into the rules the current Home Office guidance on the extended eligibility for the relocation of additional family members. This amendment would also narrow the basis for those who would otherwise be eligible for relocation under ARAP being excluded from the scheme. This would bring the ARAP provisions into conformity with the standards set out in the 1951 refugee convention—including, for example, ensuring procedural safeguards in relation to any exclusion decisions.

20:15:00

The ARAP scheme is a considerable improvement on previous policies on the UK’s support for former interpreters and staff in Afghanistan, but it remains restrictive. Further narrowed eligibility criteria were introduced in December, including heightened risk thresholds. Most recently, the Government have indicated that approximately 6,500 Afghan evacuees—plus those who, although called up for evacuation, did not manage to get on the flights—will now be included in the commitment made under the ACRS, thereby significantly reducing the number of places available, as the noble Lord, Lord Coaker, said. The UK is reneging on its promise to evacuate all those who contributed towards its security interests. We should remember, for example, that Canada has offered 40,000 resettlement places. We stand quite low on the chart of resettlement. This amendment would ensure that all those who worked for the UK Government and whose lives and security are at risk precisely because of their association with the UK are eligible for relocation under category 1 of the ARAP scheme.

Finally, this amendment would insert into the Immigration Rules a route for additional family members of locally employed staff to apply for relocation on terms no less favourable than current guidance, meaning anyone beyond a spouse and children under 18 years old, which in turn would enable proper family reunification. In speaking to my amendment, I reiterate the obligations that the UK holds not only under the international convention but as a responsible employer.

Lord Kerr of Kinlochard (CB)
My Lords, I would briefly like to support both amendments. There is an advantage in putting both ACRS and ARAP on a statutory footing. It is important to understand the need to add a right to family reunion. The fact that the 15,000 people we got out have been given only temporary leave to remain—they do not have refugee status as such, and they are not entitled to any family reunion rights—is shabby, to be honest, and it would be good to put it right, as the amendment tabled by the noble Baroness, Lady D’Souza, would do.

I have only one query about the amendment. The conditions on links to the UK and help to the UK which would justify inclusion in the scheme are quite tight. One of the conditions applies to any person who worked in Afghanistan

“alongside a UK government department”.

Is the British Council a UK government department? Is the World Service a British government department? That seems to me a little too narrow—but the spirit of the amendment is absolutely right. It is important to avoid being shabby. We suffered a serious defeat, but we really need not suffer dishonour.

Baroness Smith of Newnham (LD)
My Lords, I support both amendments. It is in some ways unfortunate that ARAP and ACRS have to be debated in the context of a Home Office Bill, where, on this occasion, we do not have representatives of the MoD and the FCDO. Normally, I raise these issues with the noble Lord, Lord Ahmad, the Minister of State in the FCDO. There is very clearly a foreign policy dimension to these two amendments, so, in many ways, I hope the Minister—I assume it will be the noble Baroness, Lady Williams, who will respond to this group—will have conversations on a cross-departmental basis. Clearly, the decisions on who comes into our country and whether they are deemed to meet various issues associated with terrorism—checking each individual to make sure that they have been properly processed and so on—is a Home Office matter, but the wider set of issues links back to our role in Afghanistan, and our moral duties to tens of thousands of people go back to the 20 years we were in Afghanistan.

There are two amendments which are clearly related and if we had more time—if we had seven, eight or nine more days of debate—we could debate them all separately. We have been told clearly on numerous occasions by the MoD and the FCDO that the ARAP scheme, as currently defined, is not time limited, nor are the numbers of people who can apply to ARAP limited. However, although the scheme was lauded by the Secretary of State for Defence when launched in April last year, before the US withdrawal from Afghanistan, it was limited in December—I think the noble Baroness, Lady D’Souza, has already pointed that out. We had a scheme which was fit for purpose, just about. Some of the people who were evacuated under Op Pitting have come under ARAP, and that is most welcome, as it is a more generous scheme than the ACRS.

It is to be very much welcomed that people have come in under ARAP and that more are still entitled to do so, but I very much support the noble Baroness, Lady D’Souza, on Amendment 193A because it may be limited. The noble Lord, Lord Kerr of Kinlochard, asked, “It seems to be narrowly defined. Does it include the British Council?” I very much hope that it does because some of those who were called forward in August were from the British Council. Others called forward have still not made it to the UK; others have now been told “You were going to be part of ARAP; now you have to apply on a case-by-case basis under the ACRS.” That is not good enough.

The noble Lord, Lord Patten of Barnes, said from a sedentary position “and Oxford University”. I think the spirit of this amendment says, “We believe there is a duty to people who worked with us in Afghanistan, whose lives are now at risk precisely because they did so, teaching English and British values, and supporting those values as part of our activities there.” We have a duty to them.

If the Minister says, as I suspect she will, that she cannot accept Amendment 193A, will she at least consider ways in which opportunities can be brought forward to ensure that those people whose lives are at risk today are looked after? I have received so many representations, as I am sure other noble Lords have, from individuals of Afghan heritage—people who may be dual nationals here—saying that their uncle, cousin or father is at risk now. The Taliban are knocking at their doors now. What are the Government going to do?

On the ACRS, it is welcome that we now know how people can apply. But how depressing it is that individuals cannot put their names forward under the ACRS and that the assumption is that most of the 5,000 people who are to be eligible this year are probably already in this country? Is that sufficiently generous? Do we not need to look again at the ACRS? If the Government really think that the routes to that scheme should be through representations by the UN—maybe because they have worked for the British Council or Garda World as interpreters—that is great, but what about individuals and their families? Surely there should be an opportunity for wider family reunification, as outlined in Amendment 177. There are many issues to consider and I hope that the Minister will be able to answer some of them this evening.

Lord Alton of Liverpool (CB)
My Lords, I intervene briefly to support Amendment 193A in the name of my noble friend Lady D’Souza, the remarks made by the noble Lord, Lord Coaker, and particularly those made just now by the noble Baroness, Lady Smith of Newnham. She will not mind me saying so, but hers was the speech of the debate we had recently in the Moses Room, where we were discussing the International Relations and Defence Select Committee report on Afghanistan. The noble Baroness, Lady Smith, and I served on that committee. We both made some of the points which have made again today about resettlement and the need to reach out.

One of the other extraordinary speeches in that debate, if the Minister has not had a chance to read it, concerned what the noble Baroness just said about the importance of interdepartmental dialogue and discussion, which was represented in a way during that debate because we had the Foreign Office—the noble Lord, Lord Ahmad of Wimbledon, replied—as well as the noble Baroness, Lady Goldie, of the Ministry of Defence, who has been engaged with this issue too. That is a really important point about the need for joined-up government and it is an excellent report, which I commend to the Minister.

Returning to a couple of questions that were asked directly of the Minister during the debate, the British Council was raised; I think, in parenthesis, my noble friend Lord Kerr also referenced the BBC World Service. Only yesterday I wrote to the noble Lord, Lord Ahmad of Wimbledon, copying in the Minister, about the situation of 60 Afghan journalists who worked for the BBC in Kabul. It is to the credit of the British Government that they are now here in London. However, the point I made was that as a result of the  reduction in our aid programme, in cutting from 0.7% to 0.5%, the BBC is not now in a position to offer contracts to those 60 and it looks as though only 26 will be employed.

That brings me to my next question, about integration. Some of those who have arrived here from Afghanistan have been put in pretty grim accommodation. The Minister may recall that I wrote to her about one of the hotels in which some were based here in London. Some have now been relocated to where I live, Lancashire. The conditions in one of the houses that I had described to me recently were pretty awful. Even worse, the father of the family, who was a major in the Afghan army, and whose life would obviously be at great risk from the Taliban, is unable to get a job at the moment. This comes back to the right-to-work discussions that we had earlier in the proceedings on the Bill. What can we do to help people in that position?

The Minister will recall that earlier in our proceedings I raised the issue of language. My wife, in “retirement”, as a speech and language therapist, does two days a week as a volunteer in Lancashire, teaching English to people who have arrived as refugees and asylum seekers. They now include some of the Afghan arrivals. I will not go into the tragic details of some of those whom she has been working with or some of the trauma that has been experienced by the children of some of those families, but I urge the Minister to build on the intervention that was made by the right reverend Prelate the Bishop of Durham last week about the importance of English as a second language. If we do not provide the opportunity of learning English, opportunities for employment and integration will be minimal indeed.

This amendment is good. No doubt it can be improved between now and Report. Perhaps more can be done to ensure the successful resettlement of those who have already reached here, and we will not leave it to people such as the noble Baroness, Lady Kennedy of The Shaws, to hire private aeroplanes and persuade businessmen in Britain, generous as they have been. She specifically mentioned Sir Michael Hintze, who paid for a plane to come from Kabul full of people who had been lawyers, judges, journalists, human rights defenders—people at risk. It should not be left to private citizens to do that. I know the Minister sufficiently well to know that she would share that view. Therefore, I hope that we can build on this amendment to some extent.

Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this debate. I agree with almost everything that noble Lords have said. Our actions have spoken louder than our words in the last few months, in the efforts that have gone into helping those people most vulnerable in Afghanistan and getting them out. On government join-up, I could not agree more. We do not always do well on that as a Government but it is what we have attempted to do. It is undoubtedly true that MoD, FCDO and Home Office join-up has been crucial here. We have a proud history of supporting those in need of our protection and I understand and agree with the concerns that noble Lords have about the plight of the people from Afghanistan.

20:30:00

I turn first to Amendment 177, on putting the Afghan citizens resettlement scheme on a statutory footing; this is probably the one thing I do not agree with, given how we operate as a Government and the flexibility we need to adjust to different crises and situations around the world. During Op Pitting, the Government and military worked around the clock to airlift about 15,000 people out of Afghanistan; it was the biggest airlift from a single country in a generation. We have relocated thousands of people who loyally served our military in Afghanistan and continue to help more.

In addition, the ACRS has now commenced—it includes female judges, whom the noble Baroness, Lady Kennedy of The Shaws, and I are so concerned to help. As the noble Lord, Lord Coaker, said, it will provide 20,000 people at risk with a new life in the UK. We initially planned for 5,000 people in the first year; we have exceeded that and now have 6,500. The timescale for the 20,000 will depend on national and local authority capacity to support that resettlement. I know that he will understand that. As to the point of the noble Lord, Lord Kerr, they will all receive ILR—that is quite clear.

The reason why we keep this non-legislative, operating completely outside the Immigration Rules and on a discretionary basis, is that it provides flexibility to respond to changing international events—and there is absolutely no doubt that they are changing rapidly. Placing the ACRS on a statutory footing might make it more difficult for us to respond flexibly when and if we need to, which was essential in the aftermath of the Afghan crisis.

We play a leading role as one of the world’s largest refugee resettlement states. However, we cannot provide protection through resettlement to absolutely everyone, as I think the Committee recognises. It is essential that any decisions regarding resettlement take that capacity consideration into account.

The purpose of the ACRS, as noble Lords know, is to provide a route to safety for those at risk and in need of protection due to the situation in Afghanistan, rather than to provide a route to family reunion. This is because those routes already exist; I will say more about them in a minute. There are established family routes for both refugees and non-refugees resident in the UK to bring eligible family members here. The UK has a generous approach; since 2015, we have granted more than 39,000 refugee family reunion visas, over half of them to children.

This amendment seeks to bring the ACRS into force within 30 days from the date of Royal Assent to this Bill. However, as I am sure the Committee will understand, it is already in operation, having commenced last month.

Amendment 193A from the noble Baroness, Lady D’Souza, is on the Afghan relocations and assistance policy. We remain eternally grateful to all those Afghan nationals who put their lives at risk working for or alongside the UK military and UK government departments in Afghanistan. They were critical to our safety and mission over 20 years and it is absolutely right that they and their family members are now supported by the UK. That is why the ARAP scheme was established last April; it has already seen over 8,000 people relocated in the UK, many as part of the 15,000 people that we safely evacuated from Afghanistan last summer. Rightly, eligibility for ARAP has already been expanded several times since it was launched: first, to include people who had resigned from service; then to include people who had been dismissed for all but serious or criminal offences; and then last December to include people who had worked alongside, rather than directly for, Her Majesty’s Government, and their non-Afghan family members. The effect of the changes has been significantly to expand eligibility for the scheme, which I remind noble Lords is neither capped nor time limited.

Baroness Smith of Newnham (LD)
My understanding of the ARAP scheme was that it was widened to some extent to allow those who may have been dismissed for minor offences to be included, but that the most recent changes, towards the end of 2001, reduced eligibility, particularly for certain groups of people who had worked with the British Council as contractors, so those in the second wave were no longer eligible and would have to apply under the ACRS and not ARAP.

Baroness Williams of Trafford (Con)
I think the noble Baroness probably meant 2021 rather than 2001, but it is late and we are not going to split hairs over that—I know what she means. I understood that the scheme had been expanded, but I will clarify that in writing, because what she said is contrary to what I have been briefed. I recall that the scheme was expanded because of pleas in both Houses about the various cohorts of people who might be caught or excluded under the scheme. I do not have specific information about the British Council or indeed the BBC, but that is what I shall write to the noble Baroness on if she is amenable to that.

Of course, we are aware that there are people still in Afghanistan and neighbouring countries who are eligible for relocation under ARAP, and the Home Office is working closely with the MoD and the FCDO to ensure their safe passage here. I think it was the noble Lord, Lord Alton, who talked about jobs. People who have come here from Afghanistan are often highly qualified. It was brought up the other day, I think in the Home Office, about how each department could help in the endeavour with people who have such skills. I shall include in the letter some of the detail on that. It was mentioned almost en passant, but I know that departments are reaching out, as is the private sector.

On the sentiment behind this amendment, which would widen further the criteria, I do not think that the changes suggested are needed in primary legislation. The Immigration Rules are designed to be flexible so that they can be altered where necessary, with the approval of Parliament, to enable us to make changes such as those I have already talked about. Having them prescribed in primary legislation would prevent the Government responding quickly, as I said earlier.

The specific changes put forward are quite marginal. The ARAP rules as drafted, and changed as recently as December, provide us with the requisite flexibility to include those who made a substantive and positive contribution to the UK’s objective in Afghanistan either directly or alongside a UK government department and who are now at risk as a result of that, and to allow them to come to the UK. That was always the intention behind the scheme, and it continues to be delivered.

On additional family members, to which the noble Lord, Lord Kerr, referred, the ARAP rules reflect the wider immigration system in that principals can be joined by spouses, civil partners, durable partners and children under 18. It is absolutely right that they are consistent with other routes to the UK. However, as the amendment notes, in June last year we published guidance on how additional family members can join principal ARAP applicants here outside the rules where there are specific levels of dependence or risk. This option has been widely used, and it provides us with greater discretion than would be the case if prescriptive criteria were set out in the rules.

The noble Baroness, Lady Smith of Newham, asked whether we will look at other opportunities. It is a most horrendous situation and so of course we are looking at other opportunities for how we can get people out. However, I conclude by saying that I think the ARAP scheme thus far has been a great success, fraught with difficulty though it is. It has provided relocation to more than 8,000 people, with a similar number yet to come. We think the rules in place strike the right balance and I hope the noble Lord will withdraw the amendment.

Lord Coaker (Lab)
I thank the noble Baroness, Lady Williams, for her reply. There is no doubt that the Government have made some progress in bringing out of Afghanistan people who supported us and worked with us in our hour of need. She gave us an interesting figure: rather than 5,000 people, which was the target in the first year, I think I am right in saying that there were 6,500 people. We all welcome that and appreciate the efforts there. Alongside that, though, there are still people who should be being helped who we are not able to help. That is the purpose of the amendments before us. All of us are searching for ways to speed this up and accelerate progress, to make sure that the people who helped us are helped.

It would be interesting at another time for the Minister to say more about the other opportunities the Government are exploring to help more people in future—in other words, to adapt and amend the scheme. We would all be interested in those other opportunities and actions the Government are taking.

This is an issue we will continue to come back to. It is right for all of us to continue to put pressure on the Government over this, but I am grateful for the reply and I seek leave to withdraw the amendment.

Amendment 177 withdrawn.

Amendment 178

Moved by

178: After Clause 78, insert the following new Clause—
 “Indefinite leave to remain payments by Commonwealth, Hong Kong and Gurkha members of armed forces
 (1) The Immigration Act 2014 is amended as follows.(2) In section 68(10), after “regulations” insert “must make exceptions in respect of any person with citizenship of a Commonwealth country (other than the United Kingdom) who has served at least four years in the armed forces of the United Kingdom, or any person who has served at least four years in the Royal Navy Hong Kong Squadron, the Hong Kong Military Service Corps or the Brigade of Gurkhas, such exceptions to include capping the fee for any such person applying for indefinite leave to remain at no more than the actual administrative cost of processing that application, and”.”Member’s explanatory statement
 This new Clause will ensure that Commonwealth, Hong Kong and Gurkha veterans applying for Indefinite Leave to Remain following four years of service will only pay the unit cost of an application.

Lord Coaker (Lab)
My Lords, I am sorry, but it is me again. I am the second signatory to this amendment. I spoke to the noble Lord, Lord Dannatt, earlier, and he sends his apologies to the Committee; he has had to leave but has asked me to move Amendment 178. I also support Amendment 185 in this group, in the name of the noble and gallant Lord, Lord Craig, but I will leave him to speak to that.

Amendment 178 deals with an issue that has huge cross-party support and that has been raised for years. Most recently, we tried to fix this in the Armed Forces Act, and now we are trying again to fix it here. The amendment seeks to prevent Commonwealth veterans being charged frankly extortionate fees to remain in the country that they fought for.

I have some questions. Does the Minister agree that this is not a general immigration issue but is about the treatment of people who have served our Government and our country? Parliament has repeatedly been asked to wait for the Government’s response to the consultation, but the consultation closed in July 2021, so where is it? The Government’s consultation is based on a possible reduction of fees after 12 years of service, but the former Defence Minister, Johnny Mercer MP, said that that number was

“plucked out of the air”.—[Official Report, Commons, 7/12/21; col. 300.]

Can the Minister explain why the figure of 12 years has been consulted on, rather than the four or five years in Amendment 178, for which there is widespread support?

It is difficult to understand why the Government are so reluctant to act on this. How much would it cost to implement, if done on the terms of this amendment? Can the Minister confirm that, since 2010, the fees have increased from £840 per person to £2,389 per person? What percentage of the current fees being charged to service men and women—more than £10,000 for a family of four—is profit?

This support for our Commonwealth veterans is long past being debated. There is huge support for this change and it is about time the Government got over just giving us warm words and actually acted. I beg to move.

Lord Craig of Radley (CB)
My Lords, I have put my name to both these amendments. I shall speak to Amendment 185, in my name and those of the noble Lords, Lord Alton of Liverpool and Lord Coaker, and the noble Baroness, Lady Smith of Newnham. It follows on from the welcome remarks of the noble Baroness, Lady Williams, when she summed up at the end of Second Reading. She said, in relation to the requests about citizenship and right of abode that I had raised about these veterans of Her Majesty’s Armed Forces who were recruited and served in Hong Kong and elsewhere, that

“the Government have identified a potential solution to this issue”.

That is of course potentially welcome news.

20:45:00

For the past six years or more, the Home Office, including the Home Secretary at the time and other Home Office Ministers, has been approached on numerous occasions by many Members of both Houses, including myself, on behalf of these loyal veterans, and indeed has been lobbied by some of the veterans themselves. All these veterans have taken the oath of allegiance and paid UK taxes on their pay. They were encouraged to make representations by features of the Armed Forces covenant, enacted in law a decade ago—features that seek to ensure that veterans and their families are treated fairly.

For the past six years or more, invariably the reply from the Home Office Minister at the time was that they were indeed valuable veterans of Her Majesty’s Armed Forces and their case was being “actively considered”—a verbatim quote from the many replies received from Home Office Ministers. So this is not a new issue for the Home Office. Indeed, on behalf of 64 former members of the Hong Kong Military Service Corps veterans I submitted their applications to the Home Secretary with a personal letter from me two years ago, in March 2020. Regrettably, not even a single acknowledgement was offered by the Home Office.

At last, it seems that a potential solution has been identified. However, in her reply at Second Reading the Minister said it would require

“considerable work … with a view to a solution being provided before the end of this calendar year.”—[Official Report, 5/1/22; col. 668.]

That is, “with a view to” the end of 2022—hardly very convincing, given the Home Office’s track record that I have explained. Surely after having actively studied this issue for six years or more, it should not take the Government a vague 12 months to reach a decision. I feel it is reasonable to ask that a definite decision be reached a little sooner, as proposed by the amendment.

I hope that the Minister responding will not resist the amendment. That would only signal that the Home Office was yet again seeking to play this issue along and did not value the true worth of these veterans. Surely it is long past time for these valued veterans to know the outcome and have a more precise date by which they will be informed. I hope the Minister will agree. The noble Baroness, Lady Williams, will recall that, when this issue was debated in the Armed Forces Bill last year, these veterans rightly received considerable support from all sides of your Lordships’ House; indeed, it was the MoD’s approach to the Home Office then which has sparked this movement towards a promising resolution. I commend the amendment to the Committee.

Lord Alton of Liverpool (CB)
My Lords, it is a great pleasure to support my noble and gallant friend. I feel as though I am part of the infantry. I have been supporting him on this issue for some years, and during the course of the Armed Forces Bill I set out at some length, as did the noble Baroness, Lady Smith of Newnham, the reasons why, which are similar to those that were expressed in the debate earlier: the responsibility and duty that we have to honour the commitments that were made by men serving the Crown in extraordinarily difficult circumstances from time to time in Hong Kong. The noble Lord, Lord Patten of Barnes, will know more about the history of our Armed Forces there than anyone else in this Chamber.

Given what has happened since 1997 and the danger that some of these men would now be in—we are talking about a very small number of people—I know it is hugely important that we should act, as I know the noble Baroness, Lady Williams, wants to do because she has said so in the House. I know the noble Lord, Lord Sharpe of Epsom, who has a long history of experience in Hong Kong and knows the situation there incredibly well, wants to see this happen too.

In asking that:

“Within three months of the passing of this Act, the Secretary of State must report on whether veterans who were recruited and served in”
 

our forces

“should be granted citizenship or indefinite leave to remain in the United Kingdom”,

my noble and gallant friend is really asking for very little indeed.

Before I sit down, I thank the noble Baroness, Lady Goldie, for listening carefully during our debates on the then Armed Forces Bill. She promised to take it up with the Home Office and clearly did, and she ought to take a lot of credit for this. The honourable Member for Romford, Andrew Rosindell, who has campaigned tirelessly on this too, ought to be mentioned in dispatches.

Viscount Brookeborough (CB)
My Lords, I support both these amendments but will speak more particularly to Amendment 178 than to the one on Hong Kong, of which I have no experience.

This was all brought home to me when I was asked to present medals for one of the operational tours in Iraq. In presenting the medals to a regiment that had Commonwealth soldiers in it, I was giving a medal to somebody and saying, “Congratulations on what you have done for that country and on serving in the Army; you are one of our soldiers”. Then I suddenly thought, “But you’re actually not one of our soldiers”. We have two different types of soldier: people we consider British and people we consider other Commonwealth country soldiers. Where is the equality in that? We have soldiers, whether they are Commonwealth or British, who have suffered serious PTSD and serious health issues thereafter. While they are serving we treat them equally, but when they leave they are no longer equal. When one is severely injured—sadly, there were plenty of them—what happens to their family, who are not British? Maybe it is difficult for him to even apply for citizenship or whatever.

As part of my job as a lord-lieutenant, I was doing a citizenship ceremony. I am sorry to repeat this, but we raised this on the then Armed Forces Bill and did not get anywhere except for getting it shuffled to the Home Office. I hope that it will not fall down a gap and that we will not pass the buck again. I was giving out citizenship, where they have to swear allegiance—which, incidentally, they have already done in the military. This gentleman came up and I asked him, “What do you do?” We have everybody from Chinese people to Indonesians and Filipinos doing nursing and other valuable jobs. He said quietly, “Oh, you know, I have been here for a while”. In Northern Ireland people do not shout about it if they are currently in the Army or anything else, so I asked, “Are you in the Army?”. He said, “Yes, I am”. I asked, “But you’re getting citizenship?” He said, “Yes, because I want it and I’ve paid the money to get it”. I asked, “How many tours have you done?” He said, “I’ve done two of Afghanistan and one of Iraq”.

This is a two-tier, unequal thing. What we are doing is really unbelievable. I wonder what happens when somebody is killed. Are they a British person who is killed or just British Army? What statistics do they come under? We treat them like mercenaries. Personally, I believe it would take very little for the Government, instead of finding reasons why it is difficult—I do not know who they are consulting in the MoD, because I do not know a single serviceperson who would not think that they should automatically be citizens of our country—simply to make the presumption that they will be citizens, unless there is some impediment or reason why they cannot be.

We are engaged in almost racism or racial discrimination. We are engaged in inequality. What do all our Governments, of whichever colour, try to do? We raise everybody to make them equal and yet we ask these people to lay down their lives. We are saying, at the end of the day and the end of their service, “Sorry—you are not equal”. The numbers concerned are beyond the belief of most people in this country, certainly of everybody in this Committee and in another place. Quite simply, there should be a pen put through it so they all become citizens, with exactly the same rights as those who laid down their lives with them.

Baroness Smith of Newnham (LD)
My Lords, there is something quite unusual about defence and Armed Forces matters. In some ways, they are so uncontroversial that, when the Armed Forces Bill was in Committee, it was relegated to Grand Committee in the Moses Room. The Moses Room is a very nice place to do business. It has a friendly atmosphere, and we could all agree with each other. As the noble and gallant Lord, Lord Craig of Radley, the noble Lord, Lord Alton, and the noble Viscount, Lord Brookeborough, have pointed out, we effectively talked about these two amendments during the Armed Forces Bill—now the Armed Forces Act 2021—at the end of the last calendar year. But we did it almost unwatched. Unlike the Chamber, there were relatively few people in the Moses Room, but we were being watched and, in part, by veterans of Her Majesty’s Armed Forces Hong Kong. Sadly, I received a letter after the debate, as I am sure did other noble Lords.

The issues that have been raised in this group of amendments have been rehearsed many times. As the noble Lord, Lord Alton, said, we are sure that the noble Baroness, Lady Goldie, will have relayed some of these issues to the Home Office, but we need to raise them again. As the noble Viscount, Lord Brookeborough, said, we let our Commonwealth and Hong Kong colleagues sign up and fight alongside Her Majesty’s Forces who have British passports. We would allow them to die serving with and for us, or to get PTSD or be injured in another way. Yet, when they stop serving, what do we do? If they say they want indefinite leave to remain, we charge them hefty fees. Can that be right? Surely the very least we can do is to charge only the cost. We should not be making a profit on somebody seeking indefinite leave to remain. That is the moral thing to do.

As the noble Lord, Lord Alton, said, Her Majesty’s Armed Forces Hong Kong is a small number of people but, at present, it really matters to them that they be considered for citizenship or indefinite leave to remain. Please can the Secretary of State look at this as a matter of urgency?

Lord Patten of Barnes (Con)
I had not meant to intervene in this debate but, from listening to the remarks of the noble and gallant Lord, I felt obliged to, but briefly. I guess I attended many events in Hong Kong when members of our armed services were marching into an uncertain future or disbanding. At those events, they would normally march off the parade ground with a pipe band playing “Auld Lang Syne”. I used to worry at the time, and have worried ever since, that they meant it. I am not sure we did. That we are still wrestling with this 25 years after we left Hong Kong is dishonourable. We should sort it out, because I cannot think of a decent political, bureaucratic or honourable reason for not doing so.

21:00:00

Lord Sharpe of Epsom (Con)
I very much thank all noble Lords for participating in this debate. In particular, I thank the noble Lord, Lord Coaker, and the noble and gallant Lord, Lord Craig of Radley, for their amendments.

Before I start, the noble Lord, Lord Alton, alluded to the fact that I have some experience in Hong Kong. I must declare an interest: I have marched to that pipe band. In fact, my noble friend Lord Patten was briefly my boss, which he probably did not know and probably horrifies him. I have worked closely with the Hong Kong Military Service Corps, as both the noble and gallant Lord, Lord Craig, and the noble Lord, Lord Alton, know. I hold those men—they were all men—in extremely high regard. I come at this speech with that in mind and wish to put it on the record.

The Government highly value the service of all members of the Armed Forces, including Commonwealth nationals and Gurkhas from Nepal. They have a long and distinguished history of service to the UK both here and overseas. We also remain extremely grateful for the contribution made by former British Hong Kong service personnel, which is why the Government announced on 7 December last year that the Home Secretary has identified an option that will enable our Government to treat this group of personnel in a similar way to other non-UK service personnel who were based in Hong Kong before handover. It was announced by Kevin Foster, the Minister for Safe and Legal Migration in the House of Commons.

I appreciate that, in tabling Amendment 185, the noble and gallant Lord, Lord Craig of Radley, wants reassurance that the Government are taking concrete steps to further support British Hong Kong veterans where possible. I can confirm that the Government will update Parliament as soon as we have more details that can be shared, with the aim of implementing any changes by the end of this calendar year. I am probably going too far here but that is not an “in due course”, in response to a comment made in an earlier debate; it is a concrete commitment to making the relevant announcement soon. However, once again, I agree with the noble and gallant Lord that they are loyal veterans; I also commend him on his long work on this particular subject. That is all I can say for now.

Before I address the detail of Amendment 178, I want to say a few words about the process for setting administration fees. For a number of years, application fees for immigration and nationality applications have been charged under powers set out under Section 68 of the Immigration Act 2014. They play a vital role in our country’s ability to run a sustainable migration and borders system, reducing the burden on taxpayers. Sitting beneath the Immigration Act is an affirmative procedure fees order, which is scrutinised by both Houses before coming into effect, and beneath that are negative resolution fees regulations, which are laid before both Houses prior to coming into force. In addition, all fees are set with the consent of HM Treasury. This system ensures that there are checks and balances within the system, and maintains the coherence of the immigration fees framework as it is set out in legislation. I will come back to this subject in a moment.

When non-UK service personnel, including Commonwealth citizens and Gurkhas from Nepal, enlist in the regular Armed Forces, they are granted “exempt from immigration control” status for the duration of their service to allow them to come and go without restriction. They are therefore free from any requirements to make visa applications or pay fees while they serve, unlike almost every other category of migrant coming to work in the UK.

Those who have served at least four years or been medically discharged as a result of their service can choose to settle in the UK after their service and pay the relevant fee. The time before discharge that such settlement applications may be submitted was extended this year from 10 to 18 weeks, providing ample time to plan and make the application. Those applying for themselves do not have to meet an income requirement, be sponsored by an employer or meet any requirements regarding skills, knowledge of the English language or knowledge of life in the UK, again putting them in a favourable position compared to other migrants wishing to settle here. I stress that this a personal choice. We should bear in mind that not all countries allow dual citizenship. Indeed, not all Commonwealth citizens who are members of our Armed Forces choose to take up this option.

Of course, we recognise that settlement fees may place a financial burden on non-UK serving personnel wishing to remain in the UK after their discharge and the strength of feeling from parliamentarians, service charities and the public about this issue is very strong. That is why the Ministry of Defence, together with the Home Office, ran a public consultation between 26 May and 7 July 2021 on a policy proposal to waive settlement fees for non-UK service personnel in HM Armed Forces. The results of the consultation have been analysed and, once collective agreement has been secured for a final policy, the Government will publish their response and make any associated changes to fees through fees regulations at the earliest opportunity. I know those are warm words, but I am also aware of the strength of feeling in this House and the other place, so noble Lords should draw the appropriate conclusion as to what “earliest opportunity” means in practice. We are also exploring what options there are to assist non-UK veterans of HM Armed Forces who do not have settled status in the UK.

In conclusion, I understand the strength of feeling expressed in the House in relation to this issue and I emphasise again my gratitude to all individuals who have served this country. However, as I have explained, there is an existing legal framework in place for immigration fees which already enables proper consideration to be given by government and Parliament to the full range of issues in setting those fees. The issue raised by this amendment is already subject to a review, which is entering its final stages.

To answer the question from the noble Lord, Lord Coaker, about how much it would cost, the best we can do is about £210,000 a year. There are other issues to be considered as well, which centre on things such as recruitment and retention. Those are part of the reason why the consultation has not yet been completely closed off. To give some more detail about the consultation, 6,398 responses were received and the results have been used to advise Ministers. I think I have covered everything, so I hope that, following those assurances, which are as warm as they can be, noble Lords will agree to withdraw or not move their amendments.

Viscount Brookeborough (CB)
As I understand it, people are allowed to apply before they leave the services. While people are serving, the Government have huge charges for every soldier, airman and seaman every day of the week. For those who choose to apply for citizenship prior to leaving, why could this not be a normal cost of administration suffered by the MoD as part of its commitment to them?

Lord Sharpe of Epsom (Con)
The noble Viscount raises an extremely important point, but that is a matter for the consultation. I stress that it will be published soon—I promise.

Lord Coaker (Lab)
I thank the Minister for his response to a very moving debate. I particularly welcome the contribution from the noble and gallant Lord, Lord Craig, with his background in the Armed Forces and the work he has done on this issue over many years. I found it very moving. I have never had the opportunity of meeting the noble Lord, Lord Patten of Barnes, but I think all of us respect, remember and honour the work he did with respect to Hong Kong. The fact he has come here tonight to listen and contribute to this short debate will be noted by everyone in this House, even those who are not here. He is to be commended for that, if I might say so. I also welcome the contributions from the noble Lord, Lord Alton, the noble Baroness, Lady Smith, and the noble Viscount, Lord Brookeborough. Again, their points were made very well.

Maybe I am an optimist or maybe it is the time of night, but I detect some movement from the Government on these issues; it would be churlish not to welcome that. On Amendment 185 in respect of Hong Kong veterans, the Minister said—he will correct me if I get this wrong—that there is an expectation that there will be an announcement on this by the end of this calendar year. One hopes that that does not mean December 2022. I am not being sarcastic; one hopes that this will happen as soon as possible, but we note that he referred to the end of this calendar year. The Hong Kong veterans and the noble and gallant Lord, Lord Craig, will have heard that, but all of us would ask that this happens as soon as possible and does not slip to December. I am not being sarcastic or churlish in saying that; everyone will want to know that that will be the case.

We also heard about the issue of unit costs for Commonwealth veterans applying for indefinite leave to remain, and that the Government are looking to come forward with something in respect of that at the earliest opportunity, whatever that means—in the not too distant future, I hope. I think that the Minister said that what it means in practice is that we might come back to this issue on Report. Maybe by then the Government will be able to say something about it.

In this short debate, the Government have shown that they have listened to what has happened. To be frank, it has taken longer than it should, but we are seeing some movement. Ministers here are to be congratulated on any part that they have played in that, as are other Members of this House. We all now want to see this move forward and happen quickly, because it is doing the right thing by those who have done the right thing by us.

Amendment 178 withdrawn.

Amendment 179

Moved by

179: After Clause 78, insert the following new Clause—
 “British National (Overseas) visas: eligibility
 (1) Within two months of this Act being passed, the Secretary of State must amend the immigration rules to ensure that all persons meeting all the conditions set out in subsection (2) are eligible to apply for the British National (Overseas) visa.(2) The conditions in this subsection are that—(a) the person has at least one parent who is a British national (overseas);(b) the person was born in or after 1997; and(c) the person is currently resident in Hong Kong or the United Kingdom.”

Lord Alton of Liverpool (CB)
My Lords, Amendment 179 stands in the names of the noble Lord, Lord Patten of Barnes, the noble and learned Lord, Lord Falconer of Thoroton, the right reverend Prelate the Bishop of St Albans and myself. In some ways, it says everything which needs to be said. That a former governor of Hong Kong and a former Lord Chancellor are two of the signatories to this amendment shows that it is not just cross-party but has support across both Houses. I know that the noble Baroness, Lady Williams, has taken a personal interest in this and I really appreciate the time she took in organising a meeting and being willing to address the issues during a long discussion on the subject. I am indebted to her, and I know that she gets the message of this amendment. It stands after Clause 78 and concerns the visa eligibility of British nationals (overseas). The amendment would rationalise the UK’s policy by offering courageous young people in Hong Kong a lifeboat out of the city. I declare my interest as a patron of Hong Kong Watch and as the vice-chair of the All-Party Parliamentary Group on Hong Kong.

I warmly welcome the Government’s creation of the BNO visa, which was opened up just over a year ago, allowing those holding BNO status in Hong Kong to come to the UK to live the life of freedom that they were promised would continue after 1997. However, as the former Foreign Secretary and leader of the Conversative Party, the noble Lord, Lord Hague, noted last week in his column in the Times, the policy has immense benefits:

“Improvements to this scheme can still be made, in particular by creating equivalent rights for those born after 1997—there are many young people who want to leave Hong Kong even though their parents want to stay, and they should be welcome here.”
 

The Government’s commitment to the people of Hong Kong and the unanimous cross-party support that this has received shows that we are a country which does not turn its back on the persecuted. However, I have become increasingly concerned at the exclusion of young people born after 1997, who are unable to access this lifeline visa route, even though these are the very people who flooded the streets of Hong Kong and stood up for the freedoms throughout the protests in 2019. That was when I was part of the international team which monitored the last free elections in Hong Kong; it was an extraordinary thing to see at first hand.

Research published at the end of last year showed that 93% of the defendants in protest-related prosecutions in Hong Kong were under the age of 25. In happier times, I chaired a meeting here in your Lordships’ House at which two young Hong Kongers spoke. One was Joshua Wong, one of the most heroic young defenders of Hong Kong’s freedoms and, for this, he is now incarcerated in a Hong Kong prison. In 2019, I was able to take the Westminster Award for Human Rights, Human Life, and Human Dignity to Hong Kong and present it to him. That was after he was refused permission, even then, to travel to the United Kingdom. The other person at that meeting was Nathan Law, the youngest member of the Hong Kong Legislative Council. The noble Lord, Lord Patten, might remember that in my day I was briefly the youngest Member of the House of Commons, and I told Nathan that we babies of the House should stick together. Nathan is now in exile in the United Kingdom and last week we stood together at an open-air rally in London focusing on the destruction of Hong Kong’s freedoms and other aspects of the erosion of freedoms elsewhere in China.

21:15:00

Amendment 179 is an act of solidarity with Joshua and Nathan. It would provide a way out for the people of Hong Kong who need it most. The amendment would at least make young people with a BNO-status parent eligible to apply for the visa and start rebuilding their lives in this country. A previous version of the amendment was tabled by the right honourable Damian Green in the House of Commons and received the backing on the amendment paper there of 30 senior Conservative Back-Benchers, including several former Cabinet Ministers, a former Foreign Secretary, the former leader of the Conservative Party and the chair of the Foreign Affairs Select Committee, as well as support from across the opposition Front Benches. Charles Moore—the noble Lord, Lord Moore of Etchingham—writing in the Spectator in December, was equally supportive and called it “logical and just”. He correctly highlighted that such a move would not meaningfully alter the overall number of BNOs expected to arrive, because the children of BNO status holders had already been factored into the Government’s estimates to some extent at least.

In December, the Minister raised concerns about Damian Green’s amendment, saying that it did not contain certain safeguards, such as an age limit and residency. We have listened to that, and this amendment has inserted conditions that would give access only to those born after 1997 who are

“currently resident in Hong Kong or the United Kingdom.”

Both honourable Members from the other place and we here have consistently throughout this process underlined our desire that the Government adopt the proposal themselves. I have suggested to the noble Baroness, and I know that she is sympathetic, that a simple immigration rule would be able to achieve this purpose.

I appreciate and welcome the outreach and efforts that the Government have put into finding a way forward with us. I was pleased to hear that, in response to a Question that I tabled in January, the Government recognised there is a need. They said:

“We are sympathetic to the circumstances of children born on or after 1 July 1997 with BN(O) parents and are considering what more can be done to support this cohort where they wish to build a permanent life in the UK.”

The noble Baroness and the noble Lord will realise that in this amendment, as in the amendment from the noble and gallant Lord, Lord Craig, we have put a timeline so this does not disappear into the future by too long a distance.

I am pleased that the Government have moved beyond the arguments that they made in the other place that the existing youth mobility scheme was a viable alternative for these young people. The youth mobility scheme in its current form is designed to give young people from a selection of countries an experience of life in our country for up to two years before taking that back to their own countries. It is not designed for those fleeing tyranny. The youth mobility scheme is a non-renewable visa. It does not count towards the five-year route to resettlement that those on the BNO route possess and, crucially, one must apply via a ballot from Hong Kong which typically opens in January and July each year, meaning that it is not appropriate for those needing to flee the city immediately.

With these young Hong Kongers, we need to provide a meaningful route to settlement. The BNO scheme, if it were opened up to them, would provide that but I am sure that there are a range of alternatives that the Government could explore, and I look forward to hearing what conclusions the Minister has reached on this matter.

Let me come an end. At the moment, many young Hong Kongers are left only with the option of applying for asylum. More than 200 who have unnecessarily applied for asylum have described how they left the city at very short notice and could not afford to wait until the youth mobility scheme ballot opened. One example, Steven—obviously not his real name for reasons the House will understand—is a 19 year-old who fled Hong Kong in November 2020 to claim asylum in the UK. He had a protest-related charge brought against him after his part in a protest and his subsequent arrest in 2019. He was released on bail and was awaiting a date for his court hearing when he fled to the UK—a decision he took suddenly after hearing of friends being arrested and a further charge brought against them.

Young people like Steven have been floundering in our asylum system for more than a year and have been unable therefore to work—an issue the Committee has addressed at earlier stages—living a life on the breadline and in limbo. There is no need for young, talented Hong Kong pro-democracy activists to be treated like this when they have the ready-made BNO scheme as an alternative.

As someone who once represented the great city of Liverpool, I note the debt that it owes to the Hong Kongers who have arrived there over the years, some  fleeing the Cultural Revolution and some coming from as early as the 19th century. The talents and the gifts that they bring to our country are enormous.

What we are asking for here is a small and rational compromise that would help those young people who really need it. I look forward to continuing the conversations with the Government to achieve a solution to that end. I beg to move.

Lord Patten of Barnes (Con)
I will be very brief in supporting that speech and this amendment, not because I do not feel passionately and strongly about it—I do—but, first, out of a late-evening act of charity to the crowds that are still with us this evening and, secondly, because the purpose of the amendment was explained so clearly by the noble Lord a moment ago.

I perhaps do not spend enough time praising the Government for things that they have done, but I praise without qualification the lifeboat that is the BNO passport scheme, which is imaginative and has been set out and pursued with considerable competence by the Government. One result is that, in the last three months, 90,000 Hong Kongers came to live in our country. Overwhelmingly, the heads of household were young professionals. The latest figures in Hong Kong suggest that, of those working for medical services, the number of doctors has decreased by 5% and the number of nurses has decreased by almost 8%, and there has been a huge drop in the number of teachers—1,000, I think, have left. Most of them have come here. It may be a matter of amazement to the Chancellor that fewer of the young entrepreneurs have come here than have gone to Australia, Canada and the United States, but nevertheless a number of people who will make a huge contribution to our society have come here.

The amendment before your Lordships repairs a hole in this lifeboat. It is very important to do so, for the reasons that the noble Lord has just made clear and that I will refer to again in a moment. But why is this lifeboat necessary at all? Shortly before he became Trade Minister, my noble friend Lord Grimstone referred to the “strong authoritarian guidance” that had been offered to Hong Kong by Xi Jinping, which he said was very good for banks. It might be good for banks—although that is questionable—but it is not very good for people. It has gone rather beyond “strong authoritarian guidance”.

We know what has happened: there has been a vengeful and comprehensive assault on all of the freedoms that we associate with an open society. Take freedom of speech: journalists have been locked up, proprietors have been incarcerated and newspapers’ funds have been frozen. Anyone who protests this is locked up. People are locked up for wanting to light a candle to mark the 4 June vigil of Tiananmen every year. The Pillar of Shame, as it was called, in the University of Hong Kong, reminding people of 4 June, was taken down in the dead of night. As my noble friend Lord Hague pointed out in a Times article earlier this week, to which the noble Lord has just referred, there has been an absolutely comprehensive assault on all of the freedoms that Hong Kong was promised it would continue to exercise for 50 years after 1997.

My main critic when I was the last colonial oppressor was a very distinguished diplomat, Percy Cradock, who used to say—and was happy to be quoted as such—of the leadership in Beijing that they may be “thuggish dictators” but they are “men of their word”. We know that at least one of those things is correct. It is a terrible example of the problem we face today that the Chinese Communist Party has behaved towards Hong Kong in a way that confirms that it cannot be trusted to keep its word in international affairs. That is something we have to think about when we are working out how to share this planet with China, almost 50 years to the day since President Nixon went to Beijing to see Mao.

This amendment is extremely important. The noble Lord pointed out that 93% of those who have been arrested for protest-related offences are aged between 18 and 24. They are young people whose lives will be blighted. With this amendment, which has been sensibly circumscribed to take account of criticisms in another place, as the noble Lord pointed out, we want to give those people who were born after 1997 the chance, like their parents, to live in and contribute to this country.

As the noble Lord said, the amendment was supported right across the other place and by both wings of the Conservative Party—I am not quite sure what flying object they support at the moment but, extraordinarily, both wings supported this amendment. Nobody else can manage that but this amendment has. I hope it will be accepted by this House in due course as well. It is a wonderful way for us to make absolutely clear what our commitment to Hong Kong and our last imperial responsibility has become.

I want to conclude by saying two related things. First, every one of my successors as chief executive in Hong Kong had either a foreign passport or members of their family with foreign passports. The present chief executive had a British passport, which she gave up to become chief executive, and her husband and her sons have British passports. I am not against that: I hope they enjoy the liberties and freedoms that come with being a British citizen with that passport. But it is an unhappy paradox that the people doing the persecuting—the quislings—including members of the police force, have British passports, and those who are being persecuted and locked up do not. I think we should address that rather unhappy imbalance in due course.

Lastly, today I went to the memorial service of somebody who many noble Lords will have read and some will have known: the very fine American scholar of China, and Observer and Guardian journalist, Jonathan Mirsky. He wrote about China for years. A defining moment for him was being beaten up while he was trying to follow what was happening in Tiananmen Square in 1989. He was covered in the blood of a young student who was shot standing next to him. The great thing about Mirsky, who could be extraordinarily tiresome and very awkward, was that at the heart of his journalism was an understanding of the difference between what is right and what is wrong, wicked or evil. What we are seeing from President Putin at the moment is wrong. It is wicked. What we have seen in Xinjiang and in Tibet is wicked. What is happening in Hong Kong—the destruction of one of the great free cities in the world—is wrong and we should say that it is wrong. Whenever we have an opportunity to do anything about it, we should take it.

21:30:00

Baroness Smith of Newnham (LD)
My Lords, in moving this amendment the noble Lord, Lord Alton, pointed out that it was supported across all parts of your Lordships’ House. However, such is the nature of amendments that you can have only four names on the top of them, which on this occasion omits any Liberal Democrat name. So I rise, genuinely briefly, to support the amendment on behalf of these Benches because, as both noble Lords have made so clear, it really plugs the hole in the life raft, as the noble Lord, Lord Patten of Barnes, pointed out.

We are talking about a relatively small amendment and a relatively small number of people. But the amendment would make the difference of giving these people the freedom and ability to express themselves, and the opportunity to come and live freely, which is given to their parents and grandparents, and some of those who are in government in Hong Kong—so it is very important.

Some months ago, the young people of Hong Kong were very vocal in writing, again and again, “Please support us because we don’t have the right to come out under any sort of visa scheme”. This is an important amendment and I very much hope the noble Lord, Lord Patten of Barnes, is right that it brings together both wings of the Conservative Party. The last time I remember something similar happening right across your Lordships’ House was on the rights of the 3 million EU nationals resident in the United Kingdom in the wake of the referendum, when all parts of your Lordships’ House and of the Conservative Party, apart from the Government Front Bench, agreed. I hope that on this occasion those on the Government Front Bench might be able to agree with the two wings of their own party, and with everybody else.

Lord Rosser (Lab)
I will be brief. Not surprisingly, we wholeheartedly support this amendment, in the same way as we were among those who raised this issue during the Commons stages of the Bill. As has been said, this is not a party-political issue; there is huge cross-party support for the BNO scheme, and there is obviously the same strong cross-party support for this necessary extension to that scheme.

Currently, those born after 1997—24 year-olds or younger—cannot access the scheme, as has been said. I believe that is unless they are a dependant of a BNO passport holder, but I am not entirely sure whether that is the case. What has been said on more than one occasion during this debate is that 93% of those who face process charges in Hong Kong were born in or after 1997. We certainly do not believe that it was the Government’s intention to exclude a significant number of the people who are protesting against oppression and fighting for democracy. Our argument is that the scheme, in practice, is not working as the Government  intended it to, and today is an opportunity for them to make it clear that they do intend that the scheme should work—as I am sure they did when they originally introduced it.

The Minister in the Commons raised drafting issues with the amendment that was considered there. As I understand it, those have been dealt with in the amendment before this House. The draft now includes an age limit and applies only to those who are resident in Hong Kong or the UK. On Report in the Commons, Damian Green MP, who led the cross-party amendment on this issue, said:

“I want to give Ministers more time to work out better details of a mobility scheme that is suitable for young people in Hong Kong.”—[Official Report, Commons, 7/12/21; col. 233.]
 

We hope, as do other Members who have taken part in this discussion, that the Government have taken that time and that, on their behalf, the Minister will be able to respond favourably to this amendment.

I conclude by saying that there was an article in the Times recently—a reference has already been made to it—which stated:

“One in five of those granted indefinite leave to remain as part of the bespoke visa scheme for Hong Kong citizens were under-25.”
 

So that is already the situation. The article also said:

“The Home Office expects about 300,000 people to apply in the first five years of the scheme.”
 

I do not know whether that figure, which was mentioned in the Times on 1 February, is accurate or not. It might be helpful, if the Minister was in a position to do so, if he would say by how many the Government think that figure of 300,000 would increase if, as they should, they accepted the terms of this amendment and extended the scheme so that those younger people who are the ones facing protest charges in Hong Kong—or have faced them—and who clearly have a desire, in many cases, to leave and to come here are able to do so.

Lord Sharpe of Epsom (Con)
My Lords, again, I thank all noble Lords who have participated in this debate, and I thank all noble Lords who signed this amendment. I understand that their concerns centre around the accessibility of the route for those who are too young to obtain BNO status in their own right and who no longer reside with their BNO parents, or those whose BNO parents do not wish to apply to the route. Although perhaps unintended, the clause would also enable unaccompanied children under the age of 18 to apply independently of their parents—which obviously risks creating safeguarding and other concerns.

The BNO route was designed bearing in mind the moral and historic obligations the UK has to those who elected to retain ties to the UK by obtaining BNO status and who wish to make the UK their home. The route already enables adult children born on or after 1 July 1997 to apply with their families where they are part of the BNO’s household—which I think answers the question of the noble Lord, Lord Rosser—ensuring that family units are not split up. This is a generous provision—being over 18, there adult children fall outside the UK immigration system’s usual definition of a dependent child. Nevertheless, the provision recognises that, although they are too young to have been eligible to obtain BNO status in their own right, they may still be able to form a household with their BNO parent.

I am going to make a brief digression into the numbers of people who have already applied, and so on. As of 30 September, over 88,000 people had applied—status holders and their family members—since 31 January, and 76,000 applications had been granted. The net-positive impact to the Treasury—in answer to the comment about the Chancellor and how he should be pleased about this—is estimated to be between £2.4 billion and £2.9 billion over five years. With that in mind, I would perhaps ask my noble friend Lord Patten why we did not grant BNO status to everybody back in 1997, which many of us in Hong Kong at the time thought would have been a very good idea. In answer to the subsequent question asked by the noble Lord, Lord Rosser, that number of 300,000 is accurate—I do not know, though, how many would apply under this particular amendment, but obviously we will do some work on that and come back to him.

Those who are not eligible for the BNO route do have a number of other UK immigration routes available to them, and that includes student visas which are up 5% compared with 2019—of course, there may be a pandemic effect in that as well. The skilled worker route enables individuals to come to the UK in a wider range of professions and at a lower general salary threshold than in the past—although, again, the information I have suggests the vast majority are very well educated indeed, as my noble friend pointed out. The graduate route is open to sponsored international students who have successfully completed a degree at undergraduate level or above. We believe that those existing routes provide avenues for many Hong Kong nationals to come to the UK, and we expect some new routes that will be created next year to open up another pathway to young Hong Kong nationals.

However, we have heard the concerns raised by noble Lords around the appropriateness of some of these other routes and are very sympathetic to the circumstances of children born on or after 1 July 1997 with BNO parents. We are, therefore, looking at whether more can be done to support this cohort wishing to build a permanent life in the UK. I can assure your Lordships that we are considering the matter carefully. I hope it will cheer your Lordships up—particularly when it comes to matters of precise timing—to hear that we hope to update the House by Report stage. In light of these assurances, I ask the noble Lord to withdraw the amendment.

Lord Alton of Liverpool (CB)
I am not entirely taken by surprise, but I think that the noble Lord, Lord Sharpe, certainly kept the best till last. I am delighted that he has put flesh on the bones of the incredibly helpful conversations that I was able to have with the noble Baroness on this matter. If a Statement to Parliament could be made—rather than just a press release from the Home Office—setting out those details, that would be extremely well received by your Lordships.

I was very struck by what the noble Lord said about the positive impact that people make, both in purely economic terms—those figures of £2.4 billion to £2.9 billion over five years to the Treasury are an amazing statement—and in human terms as well. I certainly know this from having volunteered as a student, a long time ago, to teach English to Hong Kong children who had come to United Kingdom and seeing what happened to them in the next generation: they produced a lawyer, a doctor, a teacher and an entrepreneur and, in the next generation, a goddaughter of mine. These people bring real gifts to our society. I know your Lordships’ House shares that view.

On the basis of everything we have heard, I thank all noble Lords who have participated in this debate, but I am sure the Committee will agree that hearing the noble Lord, Lord Patten, was deeply inspiring. Many people from outside this House will have heard this debate, as the noble Baroness, Lady Smith, said, and hopefully many people who still have access to such things as the internet in Hong Kong will have seen on our parliamentary channel what the noble Lord had to say, because I think it will give them a great deal of inspiration. On the basis of what the noble Lord, Lord Sharpe, said, I beg leave to withdraw my amendment—

Lord Sharpe of Epsom (Con)
If I could correct one thing, I may have said “a benefit to the Treasury”—I meant to the economy, of course. I apologise.

Baroness Ludford (LD)
I hope I am not being a bit of a cynic, but if the noble Lord intends that the Government respond to us on Report, that might make it a little difficult for us to prepare for the possibility of a vote. Can he secure a response? We were promised jam tomorrow—I think we wanted to hear some jam today. We should at least get the jam before Report, not on Report.

Lord Sharpe of Epsom (Con)
I hate to sound pedantic, but I said “by Report”, which probably does not clarify things very much but is all I can say at the moment.

Lord Alton of Liverpool (CB)
I know the Minister would expect us to be prepared to do whatever is necessary on Report. However, on the basis of the debate we have had, I thank him for the way he has responded and beg leave to withdraw the amendment.

Amendment 179 withdrawn.

Amendment 180

Moved by

180: After Clause 78, insert the following new Clause—
 “UK immigration status: certification
 (1) The Secretary of State must issue physical proof confirming immigration status to anyone who has been granted such status under the immigration laws of the United Kingdom and who requests such proof.(2) No fee may be charged for issuing physical proof under this section.(3) The certificate mentioned in subsection (1) must confirm that the relevant person has the relevant status.(4) The certificate mentioned in subsection (1) is valid for right to work checks, right to rent checks and all other checks that may be undertaken by agents within and without the United Kingdom to confirm the relevant person’s UK immigration status including permission to travel to and enter the United Kingdom.”Member’s explanatory statement
 This new Clause would require the Government to issue a physical certificate to all people with a UK immigration status, allowing all those with such status to provide documentary proof.

Lord Oates (LD)
My Lords, Amendment 180 in my name and those of the noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord McNicol of West Kilbride, would require the Government to provide physical proof of status for those with immigration status in the United Kingdom.

I will try not to detain the Committee too long, because the arguments for providing physical proof alongside digital status have been aired extensively in this House, most recently on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, when your Lordships overwhelmingly supported a cross-party amendment to this effect for EEA citizens with settled or pre-settled status. At that time, there was no need to argue for such physical proof for those with other immigration status in the United Kingdom because they were already entitled to it—something the Home Office now seems determined to reverse. I will come to that in a moment.

When we discussed this previously, the main arguments advanced by the Government against providing physical proof appeared to be, first, that digital proof was better than physical proof because it could not be lost—putting aside the fact that digital proof can indeed be lost or destroyed, no one ever suggested that physical proof should replace digital proof, but rather that it should complement it; and secondly, that as the Government intended us all to move to a digital-only system at some point, it made sense for the settled status scheme to adopt digital-only from the outset.

21:45:00

If the Government wish to transition to greater reliance on a digital system, which I can perhaps see some merit in, they should do so only after extensive trials and with a physical backup. However, instead of extensive trials before embarking on this course, the Government appear to have conducted only one, in 2018, which found that:

“There is a clearly identified user need for the physical card … and without strong evidence that this need can be mitigated for vulnerable, low-digital skill users, it should be retained.”

So, there was just one government trial, and they simply ignored its findings. The Government then failed to publish a statement on the equality impact assessment of the digital-only scheme, which they admitted had been conducted. The Minister told me on Report of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill only that such a statement would be published shortly. That was nearly a year and a half ago. Can the Minister tell us whether that statement was published and if not, why not?

When we debated the issue at that time, I said that non-EEA citizens who were spouses of EEA citizens in the UK and those with other immigration status had the right to biometric residence cards or permits, meaning that EEA citizens under settled status were the only people with immigration status in the country who did not have the right to physical proof of status. Since then, the Home Office has, extraordinarily, decided to tell employers and those renting property that existing valid biometric residence cards and permits are no longer to be considered proof of status. For those who have never read the right to work guidance, updated on 17 December 2021, you do not want to be an employer, because the complexity involved and what they are being asked to do is huge.

The guidance now states that from 6 April 2022, holders of biometric residence cards, biometric residence permits and frontier workers permits will have to

“evidence their right to work using the Home Office online service only. Employers will no longer be able to accept physical cards for the purposes of a right to work check even if it shows a later expiry date. BRCs, BRPs and FWPs will be removed from the lists of acceptable documents used to conduct a manual right to work check.”

Therefore, the Government are stating that their own permits will no longer be considered acceptable documents. Not content with the huge anxiety that has been caused to EEA citizens by not allowing them to have physical proof of their status, they now want to do the same for everyone, even those with existing government-issued documents. Perhaps the Minister can remind us, because I cannot recall, whether people have to pay for those documents. If they do, will they get a refund if they are no longer valid?

I hope that the Minister can explain the reason for this astonishing decision. It is a decision like the one originally to refuse physical proof to EEA citizens with settled and pre-settled status, which I can only explain as being driven by some sort of bureaucratic convenience, since it takes no account whatsoever of the impact on ordinary people, of the stress and anxiety caused and of the exposure of vulnerable and IT-illiterate people to exploitation by others who take charge of their digital status. Ministers in a democratic system are supposed to prevent bureaucratic convenience trampling over people’s rights, but the Minister and her colleagues seem happy to trample over this.

Since we last debated these issues, in October 2020, the warnings about the consequences of failing to provide physical proof—warnings made by noble Lords on all sides of the House and organisations representing EU citizens, such as the3million—are no longer just warnings. They are borne out by real-life experience. The “view and prove” system has thrown up multiple errors, including: “You are already logged in”, “The details do not match our records”, “Service currently available” and, most chillingly, “We cannot find your status”—all to people who had legitimate status.

There have been problems with updating status; for example, because a person has a new passport. One such person reports: “I got a new passport. I sent it to the resolution centre. They took a copy and sent it back to me. Two months later, my settled status is still not linked to my new passport. I no longer have my old passport as the French Government doesn’t allow keeping the old passport when getting a new one. This is very stressful because I am planning to visit my family in France in January. I have not seen my family since October 2020. I am feeling powerless.”

There have been problems with immigration officials demanding physical proof. There have been problems with accessing mortgages and loans. One such person says: “I have sold and I am buying a house. I have had to apply for another mortgage and the mortgage company won’t process my application until I have a share code.  I have still not received a share code. I have called the resolution centre three times and explained the situation. I keep getting told that someone will call me to progress this, and still nothing has happened.”

At the end of last year, the First Ministers of Scotland and Wales and the First and Deputy First Ministers of Northern Ireland wrote to the Home Office with further examples of difficulties caused by lack of physical proof, including

“a citizen being out of work for two and half months … another being denied a crisis grant … a citizen being threatened with being removed from temporary emergency accommodation … a citizen losing out on a number of job openings … citizens having to rely on support organisations to access their proof of status, causing stress and anxiety”,

as well as the fear of what would happen if they

“lose access when this support is no longer available”—

and all because the Home Office has not moved on an issue that has caused such evidence problems.

However, in what I hope was a glimmer of light and good sense, the Home Office, in its response to your Lordships’ European Affairs Committee’s report on 19 November 2021, undertook to look at the possibility of providing a QR code. This could work along the lines of the Covid passes on our NHS app, which provide digital status of vaccination but which, if we want, we can download as a PDF and print out—just as I have today, as I am going to France and want the reassurance of a physical back-up if I cannot access the NHS app for some reason. That physical proof gives us a sense of confidence and means that, if there is a problem with the digital service, we have something to show. It could be an ideal solution to this issue.

I hope that the Minister can give us in her reply a substantive progress update on the Home Office’s consideration of such an alternative digital status implementation, which could allow all people with immigration status the ability to create physical proof as back-up. I also hope that, if the Home Office goes down that line, it will work with representatives such as the3million, Citizens Advice and others who can give real input on the real-life effect this is having. I know that the Minister is a person who cares about the impacts on individuals, so I hope that she can help the Home Office find the way to a policy that is far more considerate of the real-life experiences of people. I beg to move.

Baroness Lister of Burtersett (Lab)
My Lords, I will very briefly say how much I support the noble Lord, Lord Oates; he made a very powerful case. I freeze over whenever I hear the phrase “digital by default”, so I hope the Minister is not going to use it. We have heard how it railroads over the real-life experiences of people who have real problems with digital by default.

The idea of a QR code as a way through is a very good one. I know there have been discussions with the Home Office, and it is offering hope. However, the 3million is quite worried—certainly in its email to me—because it sees no evidence of anything progressing. I hope the Minister will be able to tell us what progress is being made, because we can brook no delay. This has to happen quickly if we are not to have more of the kinds of problems that the noble Lord outlined.

Baroness Ludford (LD)
I stress that these Benches as a whole support my noble friend Lord Oates’s amendment, as we consistently have. I applaud him for pursuing this issue relentlessly. It seems like one gigantic mess. The EEA citizens under the EU settlement scheme were used as guinea pigs for a digital-only system, although I understand that it is now being extended to everybody. My noble friend referred to a 2018 pilot which basically said not to do it. There does not seem to have been any good policy evaluation along the way, and people are having all these practical problems.

For example, some people cannot go to France because they do not know whether they are going to get back in as their status has not been linked to their new passport. These are major issues for individuals. They may not be major issues from a bureaucratic point of view in the Home Office, but some people are unable to get a mortgage or a job because the system does not work.

I cannot stress enough how much this needs to be sorted out. The noble Baroness, Lady Lister, mentioned the 3million; those of us working with that group find it admirable. The Home Office said it was considering the 3million’s proposal but has failed to engage with it since June 2021, which is eight months ago. The Home Office really needs to focus on this. The Minister has consistently said, “Don’t just bring me criticisms; bring me solutions”—my noble friend has brought a solution.

Frankly, if I can work a QR code for my Covid pass on the app, anyone can—actually, I did get a bit of help from my neighbour at one point. But this is a solution, and it has worked with the Covid pass. I really hope that the noble Baroness can give us some good news and at least go and talk to the 3million.

Lord Rosser (Lab)
I certainly do not want to detain the Committee, but, as has been said, we are in a situation where people’s lived experience is that the lack of proof of their status is an unnecessary issue in everyday life, at least for some. The 3million certainly has examples of people being asked for documents that do not exist when trying to board flights, handing over documents for new jobs or trying to open a bank account, among other things.

There has been consistent cross-party support for this issue since the EU settled status scheme opened. I think the arguments in favour, made in both Houses over a number of years, have been compelling. The Government have been equally consistent in their refusal to move on this issue. Frankly, at times, it has been very difficult to understand why. I hope that this evening we will perhaps get a different message. That is what all those who participated in this debate now want to hear from the Government: whether they are willing to move on this issue and resolve a genuine problem that exists for many people.

22:00:00

Baroness Williams of Trafford (Con)
I thank noble Lords who have spoken in this debate and express my admiration for the noble Lord, Lord Oates, on this subject. He is not going to give up on it. He mentioned the QR code, and I totally agree; the QR code has worked brilliantly throughout the pandemic for certain things such as updating your Covid vaccination status. I will take that back to the Home Office and report back on any progress. I know it is not that simple, but we have said that we are considering it and I will report back to the House on its progress.

The noble Lord will not be surprised to hear any of my other arguments, though. When people are granted immigration status, they get a formal written notification of their grant in the form of a letter sent by post or email, which sets out their immigration status in the UK. They can retain it for their own personal records and use it, if they want, when contacting the Home Office about their status. Those issued with a biometric residence permit or an e-visa can use the online services to share that status online with other individuals or organisations, such as employers and landlords. Holders of an e-visa can also print off a copy of their immigration status, which is shown on their online profile, and store it with their personal records.

I know the hour is late, but I will touch on a couple of the other advantages of the e-visa. It puts individuals in control of their own data, gives them direct access to information held by the Home Office about their status and, importantly, adheres to the principles of data minimisation, ensuring that only the information required by a checker, rather than all the information held on a physical card, is made available to the checker. Secondly, information on a physical document might be out of date if a person’s status has changed since it was issued, and a person’s digital status is always up to date.

The noble Baroness, Lady Lister, is going to cringe now, because we are developing a border and immigration service that is “digital by default”, which means that we will increasingly replace physical and paper-based products and services with accessible, easy-to-use online products. My parents were not at all digital by default, but they have become digital by default over time. I know it is difficult when you do not have a physical document in front of you, but it is more and more the way the world is going.

We started the rollout of e-visas in 2018, starting with EU citizens granted status under the beta phases of the EU settlement scheme and expanding to all EEA and Swiss EUSS applicants when the scheme first opened back in March last year, followed by the Hong Kong BNO route, the graduate route and, most recently, the student and skilled worker extension routes. We plan to continue to roll out e-visas incrementally. The Home Office’s ambition is to have biometric residence permits replaced by e-visas by the end of 2024, so that eventually all foreign nationals granted status will have e-visas that can be securely and easily accessed and shared online.

In response to what the noble Lord, Lord Oates, said, so far the online services have been positive. Individuals who struggle can contact the UKVI resolution centre, including by phone.

I will give the House an update on the QR code, but I support the whole principle of being able to use a QR code. With that, I hope the noble Lord will withdraw his amendment.

Lord Oates (LD)
My Lords, I thank the Minister for her response. Given the lateness of the hour, I shall not delay proceedings further. I was very encouraged—I think it is the first time I have been really encouraged in these debates—by what the Minister had say: that she would take back this issue of a QR code. It has been around for a while, so I hope that she can push the Home Office on it. There seems to be some ideological or bureaucratic resistance—I do not know what it is—because, as we discussed, this is not a partisan matter; it is a just a matter of giving people the sort of surety they need.

On what the Minister said about digital by default, the study that I quoted from 2018, as well as the trial, made it clear that digital by default does not mean digital only—and it should not have to. If we can find a way with a QR code, I would be absolutely delighted. I hope that the Minister will be able to come back to us before Report with something positive and joyous, but I ask her to involve the representative groups as sector systems develop. I beg leave to withdraw the amendment.

Amendment 180 withdrawn.

Amendment 181 not moved.

Amendment 182

Moved by

182: After Clause 78, insert the following new Clause—
 “Compatibility with Refugee Convention
 Nothing in this Act is intended to undermine the obligations of the United Kingdom under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees.”Member’s explanatory statement
 This new Clause reflects the Government’s stated intention that the Bill complies with the Refugee Convention and ensures that any ambiguity around interpretation of provisions is resolved in compliance with the Convention and its Protocol.

Lord Judge (CB)
The noble Baroness, Lady Chakrabarti, has had to leave and has left me to speak. I start by apologising to the Committee that I did not speak at Second Reading. I hope that every Member of the Committee will be satisfied that, by sitting here till 10 pm on the Thursday when we are all supposed to be going home, I have done due penance. I shall also be very short.

The Government have expressly and repeatedly asserted, and continue to assert, that they will make sure that the Bill is compliant with our obligations under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees—good. Nevertheless, for all the assertions, for many of us—I include myself in it, although I only had to listen to the debate on the television—our concern about some of the provisions in the Bill arises simply from the fact that we do not see compliance or even consistency. That is an issue which will have to be resolved when we come back; today is not the time to list the various provisions in the Bill which seem non-compliant or inconsistent.

The purpose of the amendment is first to ask for the Minister to confirm, here at the Dispatch Box, that nothing in the Bill is intended to undermine the obligations of the United Kingdom under the convention. That would be a start. We then would presume that if the Government did not accept the proposals to amend that will come up on Report, that would have been based on the advice of government lawyers. You do not need to be a lawyer to know that there is a privilege position between the advice given by the lawyer to the client, but there is of course nothing to prevent the client saying, “It is my privilege”—which it is—“and I am prepared to disclose the advice that I have been given.”

Speaking for myself, I would need a great deal of convincing that the Bill as it now stands is compliant. If the Government were so advised and prepared to disclose their legal advice, we could examine it. I do not expect them to do so; that would be launching into the unknown in a way that no Government ever would.

In the end, this amendment is down really as no more than a marker, a warning, that the issue of non-compliance with the convention—to avoid its long title—is live and kicking, but it would a great start if the Minister were prepared to accept at the Dispatch Box the words that I have used in the terms of the amendment. I beg to move.

Lord Kerr of Kinlochard (CB)
I love surreal art, even if I do not always understand it. This amendment seems to be completely surreal.

Twenty-six pages of the Bill are clearly non-compliant with the refugee convention, starting with Article 11. The Committee will remember Magritte’s “Ceci n’est pas une pipe”—a large canvas with a picture of a large tobacco pipe, nothing else, with across it the words, “This is not a pipe”. It is really dangerous for a Cross-Bencher to cross swords with the Convenor of the Crossbench Peers—there are terrible penalties for it—but the amendment is quite surreal in a Bill where a substantial part, 26 pages, is clearly not compliant with the convention and the protocol. That view has been supported by a number of extraordinarily distinguished lawyers in the Committee—by the noble Baroness, Lady Chakrabarti, for one, and I would like to say that at every stage of this Committee I have found her interventions particularly helpful.

The noble and learned Lord, Lord Judge, has now made clear that with this amendment he is merely sticking a pin in the Government; it is a warning of intention. If we were to get an Act of Parliament along the lines of Part 2—the asylum provisions—that included the amendment proposed by the noble and learned Lord, I cannot see what the effect would be in the courts.

Would a court pay any attention to the amendment? The court would have to be guided by the 26 pages of specific, detailed provisions that are in breach of the convention, so if the amendment were there it seems to me that it would be surreal and would have no effect. However, if it is merely a warning to the Government, then fine. I certainly share the noble and learned Lord’s view that what is required here is not the ineffective sticking plaster that the amendment would be but radical surgery.

Baroness Lister of Burtersett (Lab)
My Lords, this has been a theme running through the Committee, so it is perhaps fitting that we should come back to it right at the end.

There is a question that I have asked a number of times but I still have not received a proper answer. To go back a step, noble Lords have challenged the Government on the point just made, that the Bill is not compliant with the refugee convention, and the UNHCR, among others, has made that very clear, and the Government have said, “We interpret the convention differently. There are lots of different interpretations.” So I have asked why we should accept the interpretation of this Government over that of the body that is given global responsibility for the refugee convention, and I am still not clear why.

We might have a better inkling of why we should do so if we were given not the actual legal advice, because I take the point about privilege and so forth, but some clearer understanding of what that legal advice contained. Indeed, two days ago—I cannot remember now whether it was in the middle of the night or not—the noble Lord, Lord Wolfson, was pushed on this matter and said:

“I hear the point from the noble Lord”—

that is, the noble Lord, Lord Anderson of Ipswich—

“that he and others would like to see a greater fleshing out of the Government’s legal position. I have said that I will see what I can do to assist in that.”—[Official Report, 8/2/22; col. 1434.]

I know that was only two days ago—or even less, if it was in the middle of the night—but can the Minister update us on that? Will we get some kind of legal statement before Report? She is nodding, which is very hopeful.

Baroness Hamwee (LD)
My Lords, as a fellow penitent, though in my case probably for taking too much interest and spending too long sitting here—that is not intended as any sort of criticism of the noble and learned Lord—I thank him for explaining the amendment. Of course we on these Benches agree with the objective, which is hugely important, but I was a little puzzled, although I shall not go down the Magritte route, by the words:

“Nothing … is intended to undermine”.
 

I have been trying to think of a way of using the point about “sticking a pin” in this. I think it would be something about deflating, but I am not quite sure who we would be deflating and my imagination has rather come to a full stop. I am grateful to the noble and learned Lord for raising this point again.

Baroness Ludford (LD)
Whether the amendment is a warning, surreal or whatever, surely if the Government believe their assertion that the Bill complies with the refugee convention, there can be no possible barrier to them accepting the amendment.

22:15:00

Lord Rosser (Lab)
We certainly support the amendment. Throughout the passage of the Bill, the Government have repeated in both Houses that their plans are in line with the refugee convention. We, along with a great many other noble Lords, have some difficulty accepting that view, but if the Government believe that their plans are in line with the refugee convention and therefore, as it says in the amendment,

“Nothing in this Act is intended to undermine the obligations of the United Kingdom under the 1951 Convention”,
 

there should be no difficulty in them accepting the amendment. I suspect that we are about to find that there are all sorts of reasons why the Government will not agree to it, which will simply add to our view that they know that what they are doing is not in line with the 1951 convention. I think this will probably expose it once and for all, when they are not prepared to put that commitment into the Bill.

Baroness Williams of Trafford (Con)
My Lords, I thank the noble and learned Lord, Lord Judge, for speaking on behalf of the noble Baroness, Lady Chakrabarti. He is absolutely right: we will not disclose our legal advice. We are absolutely firm on the fact that nothing in the Bill undermines our convention obligations and, on the legal position—which, I think, is what he is getting at—we have already committed to writing, and we will be setting out why we consider it compatible. I hope that that will dispel a load of arguments—while perhaps creating another load—but, with that, I hope that he will withdraw the amendment.

Lord Judge (CB)
I shall of course withdraw the amendment for today, reflecting with some sadness that there is no Whip among the Cross-Benchers—I am very sorry about that. The issue cannot be resolved without the main provisions of the Bill being amended. It will take a great deal to persuade me and many Members of this House that some of the 26 pages of provisions are compliant with the convention. I was hoping that the Minister would positively assert that “Nothing in this Act” was “intended to undermine” our obligations but, as she has not, we have to draw our own conclusions. For today, I beg leave to withdraw the amendment.

Amendment 182 withdrawn.

Amendment 183 withdrawn.

Amendment 184

Moved by

184: After Clause 78, insert the following new Clause—
 “Consultation on citizenship
 Within six months of the passing of this Act, the Secretary of State must issue for public consultation a review of its implications for the nature of British citizenship and national cohesion.” Member’s explanatory statement
 This amendment requires the Government to consult publicly on the impact of the Act on citizenship and national cohesion.

Lord Moylan (Con)
My Lords, I apologise for detaining the Committee, given the lateness of the hour. I am grateful to my noble friend Lord Hodgson of Astley Abbotts, the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Blunkett, for adding their names to the amendment. The noble Lord, Lord Blunkett, asked me to convey his apologies for being unable to be here this evening because of a commitment tomorrow morning in Sheffield.

Although it is late, this is an important topic. The amendment was meant to give us the opportunity for a leisurely debate on the meaning and value of British citizenship. I suspect that it will be a shorter debate than was originally hoped, but nonetheless it is a very important topic. The British Nationality Act 1981 was shaped by Britain’s new place in a post-imperial world. Previously, we were subjects of the monarch, and the monarch’s sway extended throughout a large part of the world. With the transition to a post-colonial world, thought was given in the late 1970s and early 1980s to the meaning of the bond that should exist between the citizen and the state. An important White Paper in 1980 or 1981 set out the new and alien concept of citizenship—we had never really used the word “citizenship” before—that would express the close bond that existed between people and the United Kingdom.

The question really is: are we living up to the ambition that there would be a citizenship that was more than just a piece of paper, or a particular travel document, but would represent a close sort of bond? It was assumed, I think, in the White Paper and the British Nationality Act, that anyone who had the status of citizen would be treated equally; they would have an equal citizenship. I regret to say that I do not think that is really true any more.

The first inequality, which was discussed much earlier in Committee, on an earlier amendment, concerns the power the state has increasingly taken to itself to deprive British citizens of their citizenship; a power that, since 2015, has extended to any British citizen about whom the Secretary of State believes or has reasonable grounds for believing might have not another nationality but a claim to another nationality. This includes an enormous number of British citizens: anyone with an Irish grandparent and all sorts of people of Commonwealth heritage. The Prime Minister, sadly, since he had the misfortune to be born in the United States, has claims in that regard. All these people now hold a sort of second-class citizenship which could be removed from them by administrative action, simply on the grounds of a reasonable belief held by the Home Secretary.

There is another class of impaired citizenship, which requires me to make a brief comment on how citizenship is actually acknowledged. For most of us, it is acquired by birth or descent—our British citizenship is manifest, if you like, from the time we are born. But there are others who are born where their citizenship is more obscure; they might have been born abroad or their circumstances might be different. Because of that, since 1948 we have allowed people who are British to register that citizenship so that it can be acknowledged. But nowadays, we impose huge, almost punitive fees on people who wish to register their citizenship—their right to citizenship. While I have no particular objection to the Home Office making money out of the rich, if that is what it wants to do, when that becomes a bar to claiming rights to citizenship, it is a genuine obstacle to the exercise of a right and there should be some alleviation of the fee for those who find it difficult to pay.

The third category which is somewhat impaired are those people who are naturalised citizens. Naturalisation is not like registration. Naturalisation is a concession by the state. Nobody has a right to be naturalised as a British citizen, except as provided for in statute, but once they are naturalised, surely they should be treated equally with every other British citizen. Sadly, that has not been true since 1918. It seems to me that it behoves a Conservative Government in a post-Brexit world to have a clearer idea of the meaning, value and equality of citizenship, and I hope they will start to develop one.

I also come briefly to the question of the Government’s view of the value of citizenship—the joy we have in our British citizenship, if you like. I use that word because I spoke on another amendment in Committee about the joy I had seen in people coming to be naturalised and going through the citizenship ceremony process that was introduced about 20 years ago; we never had such a thing previously. I talked about the fact that, when you see these people—in my case, I would see them coming to my town hall—they were very often coming in a spirit of family joy, as if they were going to a wedding; it was a great thing. They were wearing their best clothes and were proud of the event.

I wonder whether the Home Office shares that sense of pride and joy; I do not necessarily feel that it does. Rather, I hear Ministers and government officials speaking increasingly of citizenship as if it were a privilege or concession, rather than a right. That is wrong and insulting, because it is a right. That is also logically absurd, if you think about it, because you have to have citizens before you can have a Government. You can have citizens without a Government—we call that anarchy—but having a Government without citizens is an absurdity. The citizens come before the Government. Citizenship is not conferred by a Government; rather, Governments are acknowledged and created, so to speak, by the citizens.

I will not say any more for now, because the hour is late. I know that one or two others want to speak, so I will leave them to take up the argument. I hope the subject I have raised is not too abstruse. I know the Ministers are tired; I understand that. They have worked heroically. They have been worn down by having to deal with highly detailed, technical questions and are now being invited by me to embark on a broader subject that may slightly frazzle their brains. However, I hope they might be able to make some sort of fist of a response, and I look forward to hearing what my noble friend on the Front Bench has to say. I beg to move.

Baroness Lister of Burtersett (Lab)
My Lords, I was pleased to add my name to this amendment. At the risk of frazzling the Government Front Bench even further, I did so with citizenship having been one of my main areas of research and scholarship as an academic—fear not, I will not wear your Lordships’ patience with a treatise on the subject—and also having served on the Select Committee on Citizenship and Civic Engagement, chaired so ably by the noble Lord, Lord Hodgson of Astley Abbots.

Although, as our committee’s report made clear, citizenship is not just about the legal question of who is a citizen, some of our debates during Committee have raised important issues about this aspect of citizenship. During the first day of Committee, noble Lords such as the noble Lords, Lord Moylan and Lord Anderson, and the noble Baroness, Lady Warsi, spoke about how citizenship has been degraded in recent decades by successive Governments. Their focus was exclusively on deprivation powers, but it is not only in respect of those powers that this degradation has happened.

Important too is the exclusion from citizenship of children and young people who are required to register their entitlement, as mentioned by the noble Lord, because of the immigration status of their parents, even though they may have been born in and/or lived their lives in the UK. Aspects we debated on the first day of Committee were the failure to raise awareness of rights of registration, the requirement to show good character even for children as young as 10 and the introduction of well above cost fees, which were described as punitive by the noble Lord.

With regard to the last issue, the level of fees charged for registration, I thank the noble Lord, Lord Sharpe of Epsom, for his letter of 8 February. In particular, I appreciate its recognition that the best interests of the child review required by the Court of Appeal under Section 55 of the Borders, Citizenship and Immigration Act 2009 is separate from the point appealed to the Supreme Court. The decision on the Supreme Court appeal was published on 2 February, as noted in the letter, yet the rest of the letter was written as if it had not yet been published, which I found rather puzzling. It was a disappointing result from my side but, as the letter acknowledged, it raised a separate issue from that of the earlier best interests appeal, the result of which the Home Office accepted.

22:30:00

I have to say that, in view of that, it is still not clear to me why the best interests review had to wait over a year for that judgment. But, now that the judgment has been given, can whichever Minister is replying give us some idea of when we can expect the outcome of the best interests review and an assurance that it will be published? I ask because we may well want to return to this issue on Report.

The theme of my academic work was how we can best develop inclusive citizenship that recognises the importance of citizenship to identity, security and belonging. While that raises much wider issues than those we have debated in this Committee, from the perspective of both the exercise of deprivation powers and the barriers to accessing citizenship registration rights, we have been addressing ways in which citizenship is all too often in practice more exclusive than inclusive, especially for people of colour. The amendment would facilitate a public debate on the implications of this legislation for citizenship and cohesion, which are vital in the face of the many divisions that risk tearing our country apart. I hope the Government will take it seriously.

Baroness Fox of Buckley (Non-Afl)
My Lords, most of the Bill has focused on those who are trying to arrive in this country and whose status is uncertain and contested. However, this amendment is about our attitudes to British citizens whose status is agreed and lawful and should be uncontentious. Yet parts of the Bill seem to be ambiguous about the rights and status of some British citizens. I remind noble Lords that British citizens are from a range of ethnic backgrounds, with many from first, second and third-generation immigrant backgrounds. As a society, these factors are and should be irrelevant. We are all fully British, and it is what we have in common that matters.

Perhaps it is also worth noting that British society in 2022 is not endemically racist. It has changed over recent decades. When I was a young activist in Coventry, Newcastle and then Bradford, gangs of racist thugs regularly hunted down and beat up immigrants, and often the police turned a blind eye. Workplace discrimination was also widespread. It changed because British citizens, often workers, enacted the slogan “Black and white, unite and fight!” and changed the climate and atmosphere—and, indeed, laws and policies—in this country. In other words, people came together beyond racial differences and created a better society. Citizens came together.

I worry that elements of the Bill undermine those achievements and degrade citizenship. But I also worry that contributions opposing the Bill—I have listened to a lot more of the debates than I have spoken in, which is uncharacteristic of me but I wanted to listen and learn—have sometimes done British citizens a disservice, somehow dismissing perfectly reasonable concerns about, for example, the migrant boats or the lack of control over borders as a populist dog whistle, and implying that British citizens are driven by anti-foreigner or even racist sentiments.

One of the reasons I support this important amendment from the noble Lord, Lord Moylan, is that I am keen that we use the Bill to show a commitment to a positive citizenship agenda and, as has previously been argued by the noble Baroness, that we have a public debate and discussion on it in positive terms.

As I explained in relation to Clause 9 in Part 1 of the Bill, I am keen that we bolster the virtues of citizenship and I worry that part of this Bill undermines citizenship in a divisive way. This amendment allows us to check whether this Bill causes any unintended damage, but also more proactively encourages a public debate on the equal rights and duties of all citizens.

Under a range of circumstances, people can work, live and study in the UK without becoming citizens, but for those who actively chose to become citizens or have chosen legally to become citizens, surely our aims should be to ensure that they are fully welcomed and integrated into the social fabric of the UK. Indeed, the amendment mentions social cohesion and it seems to me that the common bond of citizenship is hugely important in 2022, as our society has rarely been more fragmented or atomised.

Despite this, aspects of this Bill and a range of government policies seem to indicate that it is uncertain whether British citizenship is even a good thing. We have heard how the cost of citizenship is prohibitively expensive—the highest cost in the western world, in fact. I am glad that is being addressed. The process is so complicated that most people need lawyers to help them to apply to be citizens.

The noble Lord, Lord Moylan, pointed out that citizenship ceremonies—one of the good ideas of recent years—were joyous occasions. I think they want to be, but they often take place in neglected, hidden-away local council offices, while other countries celebrate them in iconic historic buildings and involve local communities, school pupils and residents in welcoming new citizens. Those kinds of ideas, as suggested by British Future’s excellent report Barriers to Britishness, I think the Government should take up.

Then there are those soulless multiple-choice citizenship tests that reduce British values to a box-ticking exercise and hardly encourage serious discussions of, let alone commitment to, shared national values. One problem, I suspect, is that we as a society are no longer confident that we know what British values are. On that issue, one trend we must avoid is that often when we discuss immigration, citizenship and social coherence, there is an implication that immigrants becoming citizens leads to lack of social cohesion; that they fail somehow to integrate into civil society or identify with the nation state.

I dispute this. So much evidence shows—and anecdotally I know—that many of those immigrant citizens are more likely to identify with the UK and be patriotic than, for example, your average activist student or a decolonising academic in British institutions, from universities to museums. That might be a bit glib, but I think we might all agree that British values are highly contested at home and have got nothing to do with immigration.

I would argue that recasting the project of collective citizenry with an emphasis on what all citizens have in common is a very important and positive move. That requires treating all British citizens as equal. One challenge to this is the present fashion for identity politics which fuels divisions, viewing citizens through the prism of ethnic and cultural boxes. This has led to the de facto treatment of individuals from minority groups not as citizens in their own right but simply as members of a particular ethnic background. This has led to well-documented problems of parallel communities in many towns and cities, and more recently this identity ideology has morphed into the racialising of politics and, for example, the absolutely unhelpful accusations of white privilege promiscuously thrown at citizens just because of their skin colour.

Surely what we need is a model of citizenship that cuts across this insidious focus on ethnicity or skin colour. It is one reason that I fear that the controversial Clause 9 in Part 1 has doubled down on the notion of tiered citizenship, with many citizens feeling insecure and that they are being treated as second-class citizens. British citizens from immigrant backgrounds fear that this Bill itself is racialising their experience.

This amendment would allow a fresh and positive reassertion of the idea that citizenship in the UK, unlike in other countries, once legally and lawfully acquired, is a permanent and inviolable right. It is not a privilege and it is not provisional; all British citizens are equal. This will undoubtedly help us tackle the fraying of social solidarity. This seems especially pertinent when we think of the boost that British citizens gave to the British democratic system when they voted to take back control. National sovereignty, if it means nothing else, is about creating the real living bonds of a British citizenry who are proud to be part of the United Kingdom. I hope the Government will seize the positive aspects of this amendment to improve their Bill and ensure British citizenship for everyone.

Lord Rosser (Lab)
I will listen with interest to the Minister’s reply, on behalf of the Government, to this amendment. The amendment states:

“Within six months of the passing of this Act, the Secretary of State must issue … a review of its implications”.
 

One will have to start pretty smartly, once the Act comes in, to carry out a review and put it out for public consultation within six months. I am not necessarily sure that the implications will be fully known within six months, but presumably the movers of the amendment feel that that could be addressed and it could be done within that timespan. Usually, the Government would argue that this is far too quick and that they need more than six months.

What also strikes me is that the review is not going to be independent, or at least, the amendment does not say it will be. It states that

“the Secretary of State must issue for public consultation a review”.

It could be independent or it could be knocked together by the Secretary of State herself, as far as the amendment is concerned. It may be done by members of the Government, but I am not sure Mr Johnson ever talks in negative terms about his own legislation. If it is going to be a government review, I do not think it will say that the implications are adverse in any way. If it does, it would be a remarkable change of stance from this Government.

The amendment also says that it is a review only of the “implications” of this Act

“for the nature of British citizenship”.

To take the wording strictly, it is not a general review of

“British citizenship and national cohesion”,

but one purely related to the “implications” of this Act for

“the nature of British citizenship and national cohesion”.

Those were a few thoughts on the wording of the amendment. If the Government wish to accept it, fine. We will not stand here and demand they change their stance, but I will listen to the Government’s response with interest. I suspect they may not accept it, or they may tell us that they are already doing other work on the nature of British citizenship and national cohesion, and we should wait for that and that it will be available in due course—which may be some years ahead.

Lord Stewart of Dirleton (Con)
My Lords, so many of the points made in the submission of the noble Lord, Lord Rosser, appear in my briefing note that I am suspicious that the Bill team is leaking him material. Perhaps I should institute a security review. But I am grateful to the noble Lord. I also say to the noble Baroness, Lady Lister of Burtersett, that, far from frazzling the brains of the Front Bench, noble Lords’ contributions to this debate in Committee have had a tonic effect.

I laughed when the noble Lord, Lord Rosser, introduced his remarks by inviting us to look at the wording because, with all due respect to my noble friend Lord Moylan, it seemed there was a degree of pretext about the manner in which this amendment was tabled. I noted that many of the points my noble friend made this evening were foreshadowed in previous debates. I accept that his purpose was to introduce a debate on the nature and values of citizenship, but we lack the time and personnel. This is not to suggest that the noble Lords who contributed are not Members whose views are listened to with the utmost respect, but I think my noble friend wished for a fuller House before these topics were canvassed. I am grateful to the noble Baroness, Lady Fox, who is nodding in agreement.

22:45:00

My noble friend Lord Moylan spoke about “the joy of citizenship” in a manner which, to Conservatives, called to mind the writings of the late lamented philosopher Sir Roger Scruton. My noble friend spoke about the history of the expression “citizenship” and took us back to the 1981 Act and the circumstances nationally and politically in which it was framed, wondering whether the hopes behind the legislative change in that Act were fulfilled.

Undoubtedly, for many of us, in a British context the expression which “citizenship” replaced, that of being “a British subject”, carried with it, at least in poetic terms, a greater resonance—although that is not to say that “citizen” is not an exceptionally powerful expression in other contexts too, particularly in France and the United States of America, where to say that one is a citizen of those countries is an extremely powerful thing. If the Committee will indulge me, my noble friend’s remarks prompted reflection on the speech of Cicero in the prosecution of Verres, when he drew the jury’s attention to the conduct of the tyrannical despot in flogging a man to death. When strokes landed on his back, he punctuated the blows by exclaiming, “I am a Roman citizen! I am a Roman citizen! I am a Roman citizen!” That is the power which the word can take on.

Returning to the more mundane, again, I thank the noble Lord, Lord Rosser, for anticipating my point. The amendment does not and could not provide sufficient clarity without the leisurely debate that my noble friend has called for about what it wants the Government to do. It calls for public consultation and a review of the implications for the nature of British citizenship and national cohesion, but it does not say what the terms of reference should be for the review, nor who should lead it—to adopt again, gratefully, the point made by the noble Lord, Lord Rosser. I am therefore concerned at the wide scope of the expressions “nature of British citizenship” and “national cohesion”. The scale of the questions likely to be posed were hinted at in a short but thoughtful contribution by the noble Baroness, Lady Fox, which alone could provide the House with material for a week’s-worth of debate.

The second reason why I cannot accept the amendment is that the call for public consultation—again, the noble Lord, Lord Rosser, was, as they say, bang on the money—to start within six months of Royal Assent is unworkable. Some measures in the Bill will not be fully in effect six months after Royal Assent. Many will, but some will take longer to operationalise, if your Lordships will pardon the neologism. Those measures that are fully in effect will, by definition, have been so for less than six months, so it is very doubtful that any such review could say anything meaningful about the impact they may be having.

However, I assure the Committee that as part of our work to start operating the Bill’s measures, we are drawing up plans to monitor and evaluate its impacts, and to develop the evidence base to support further work. For these reasons, and anticipating—

Baroness Fox of Buckley (Non-Afl)
That is a very helpful answer. I understand the technical difficulties of accepting the amendment, but monitoring is only one aspect. I supported this amendment because of its commitment to a public debate. On who might lead the inquiry, it could be the Minister, who actually understood the points about the importance of citizenship, whether he was referring to Cicero or the French meaning of citizenship. Might the Government come back with a better-worded version of this to ensure that the public have the kind of debate that we are not quite having tonight but is being hinted at? The amendment’s intention is to give the Government the opportunity to launch a positive discussion about British citizenship.

Lord Stewart of Dirleton (Con)
I am grateful to the noble Baroness for her intervention. I cannot promise that any such debate will take place within the framework of this Bill, but I merely reiterate my thanks to her, along with other contributors to this short and late debate, for focusing the Committee’s attention on these extremely important and significant matters.

In conclusion, and with thanks again to all who have contributed, I invite my noble friend Lord Moylan—

Baroness Lister of Burtersett (Lab)
I asked some very specific questions on the Section 55 review, partly because I thought that the noble Lord, Lord Sharpe, would be responding. Even if he cannot respond now, could he write a follow-up letter?

Lord Stewart of Dirleton (Con)
I am obliged to the noble Baroness, and I apologise for not raising the matter before I went to sit down. We will write to her to answer the point that she raised. Unless there are any other matters with which I can assist the Committee, I propose to take my seat, in the hope that my noble friend will withdraw his amendment at this stage.

Lord Moylan (Con)
My Lords, I think that, if the House divided now, we might win on this, but let us not pursue that thought. I will just say that I am extremely grateful to the noble Baronesses, Lady Lister of Burtersett and Lady Fox of Buckley, for their contributions to this debate. I am overwhelming grateful to the noble Lord, Lord Rosser, for missing the point entirely and doing the Government’s work for them so effectively. However, I will look to him for support if I come back on Report, having changed the amendment to allow a more ample period for the review to be carried out and possibly even to specify who might carry it out. We could appoint the noble Lord himself in statute to lead it. If that were the case, perhaps he would come round to supporting it.

I much preferred the response of my noble and learned friend the Minister, not least because he brought Cicero into it. If the Committee will indulge me for a moment—I know that it is very late—I have to say that I once asked the current Prime Minister, when he was in a different role, for a reference for a particular purpose. One of the questions was, “Could you give an account of his speaking skills and abilities?” In the large box beneath it, in which he was expected to write several paragraphs, he simply wrote, “Ciceronian”. So my noble and learned friend will know that he is on the right side of power at the moment in his insight, and he should cling to that position for as long as it lasts.

On substance, I cannot do better than repeat the intervention made just now by the noble Baroness, Lady Fox of Buckley. She said what I think the three of us wanted to say: there is a role for a debate about what citizenship and nationality mean. In my view, it is incumbent on the Government, especially in the new circumstances in which we have found ourselves since leaving the European Union, to initiate such a debate and have views on what the answers to those questions are.

I will not elaborate further on that because the noble Baroness said it very clearly. Temporally, noble Lords will be relieved to know that I shall not divide the Committee just now, despite the favourability of the numbers. I beg leave to withdraw my amendment.

Amendment 184 withdrawn.

Amendments 185 and 186 not moved.

Amendment 187

Moved by

187: After Clause 78, insert the following new Clause—
 “Time limit on immigration detention
 (1) This section applies to any person (“P”) who is liable to detention under a relevant detention power.(2) P may not be detained under a relevant detention power for a period of more than 28 days from the relevant time.(3) If P remains detained under a relevant detention power at the expiry of the period of 28 days then—(a) P must be released forthwith, and(b) P may not be detained under a relevant detention power thereafter, unless the Secretary of State or an immigration officer, as the case may be, is satisfied that there has been a material change of circumstances since P’s release and that the criteria in section (Initial detention: criteria and duration)(1) are met.(4) In this section, “relevant detention power” means a power to detain under—(a) paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal); or(d) section 36(1) of the UK Borders Act 2007 (detention pending deportation).(5) In this section, “relevant time” means the time at which P is first detained under a relevant detention power.(6) This section does not apply to a person in respect of whom the Secretary of State has certified that the decision to detain is or was taken in the interests of national security.”Member’s explanatory statement
 This new Clause would prevent people who are liable to detention under a relevant power from being detained for longer than 28 days.

Baroness Hamwee (LD)
My Lords, I will move the amendment tabled by the noble Baroness, Lady Chakrabarti, and supported by the noble Baroness, Lady Jones, because I feel so strongly about the subject. Who knows, the Government might have something new to say; I would not want the Minister to waste her speech. I am not sure whether the noble Baroness, Lady Williams, will be replying—she is nodding. I want to use this opportunity to thank the noble Lords on the Government Front Bench at the moment for their courtesy through a number of trying hours. There is a lot that I do not agree with—I have made no secret of the fact that I think this is an awful Bill—but we always appreciate how the noble Baroness approaches everything. She must be very tired but she does not show it. I just wanted to express my thanks; I have heard such comments outside the Chamber as well.

Last night, I discovered that the beautifully honed notes for my speech had disappeared. It was not so beautiful as to include “civis Britannicus”, though—if I have got that right. Perhaps I dreamed that I wrote it because this is not the first time that I have spoken on the importance of immigration detention not being indefinite, although it may be the shortest speech I have made on the subject. Some of the amendments may be in the same form as ones I have spoken to in the past and divided on.

Detention centres are formally immigration removal centres because they are for the removal of people liable to be removed, not indefinite incarceration. In a lot of our debates over the years, the Government have said that people are not detained for that long. That is not point. Some are, of course—some are detained for a long time—but it is uncertainty and lack of hope that characterise indefinite detention. We have often heard from ex-detainees of the loss of hope and its impact on them.

I want to mention one other amendment in this group, on ending the use of privately run places of detention. It is not something we have previously debated, I think, but I recall having a conversation with Brandon Lewis when he was the Minister in the relevant department—at least I got his name right this time—following revelations about Brook House. I asked him why the Government did not just terminate the contract with the contractor. He said, “We’d end up with the same staff because they’d be transferred or they’d reapply for their jobs, and there are not many people who want to do the job”. I did not find that entirely convincing; rather, it was not a complete answer. I fear that the ship of having only state-run detention centres has sailed but, if the Minister has notes that refer to this, I think that the Committee—or, if not the Committee, the people who read Hansard—would be glad to hear them. I beg to move.

Baroness Lister of Burtersett (Lab)
My Lords, I will speak very briefly to support the amendment. Seven years ago, I was a member of the inquiry by the All-Party Parliamentary Group on Refugees into detention. We called for time limits and had strong support across both Houses of Parliament, yet here we are, seven years later, still having to make the same arguments. Despite the Shaw reforms, there is still evidence of people who have survived traumatic experiences being detained and evidence of the damage it does to them and their health. There is evidence to suggest that the indefinite nature of detention contributes to mental ill health for the reasons that the noble Baroness has given—uncertainty, the lack of hope, and so forth.

23:00:00

I really hope the Minister will not respond by saying that detention is not indefinite, because that is semantics. She is laughing; I am sure that is in her brief. The fact that people are released does not mean it is not indefinite—the lack of a clear time limit is the popular understanding of what “indefinite” means. There is no time limit, so people do not know how long they are going to be kept there, and my memory from that inquiry of when we talked to people who had been in detention was that it is worse than being in prison because you do not know when you are coming out.

The only other point I want to make—maybe this is not the time and maybe the Minister can write to us—is that I wonder where we have got to on community-based alternatives to detention. That was put forward as a possibility and I know there were pilots. Given that a high proportion of those detained are released back into the community, it seems to make a lot of sense to try and do it in the community as far as possible, as opposed to these terrible detention centres. But please do not say that detention is not indefinite because it is, in the way it is experienced.

Baroness Ludford (LD)
My Lords, I want to say a few sentences as my last words in Committee—thank goodness, at 11 o’clock at night. I agree with what my noble friend Lady Hamwee has said, and I applaud everything she has done over the years on immigration detention—and the noble Baroness, Lady Lister of Burtersett. Both are doughty champions of trying to constrain immigration detention and stop it being indefinite. I do not have their background on this subject, but I know that the Minister has grappled with them—if I can put it like that—over the years, and if she had some encouraging news for them that would be a great way to end the Committee.

Lord Rosser (Lab)
I certainly endorse the words of the noble Baroness, Lady Ludford, about my noble friend Lady Lister of Burtersett and the noble Baroness, Lady Hamwee. I will be brief, but in 2019 the Home Affairs Select Committee reported that it had found

“serious problems with almost every element of the immigration detention system.”

It said:

“It is time to implement radical change”
 

and, in line with the Joint Committee on Human Rights, urged the Government to bring an end to indefinite immigration detention and to implement a maximum 28-day time limit with immediate effect. The Government have, so far, refused to act on this recommendation despite votes in this House in favour of a time limit. I simply conclude by asking what plans the Government have to overhaul immigration detention, including limiting the length of its use.

Baroness Williams of Trafford (Con)
My Lords, I will start by making the noble Baroness, Lady Lister, happy by talking about alternatives to detention and managing people in the community, because 95% of people who are liable to removal from the UK are actually managed in the community while their cases are progressed. That obviously demonstrates, for a start, that we are using alternatives to detention to manage those without status in the UK.

Following the Home Secretary’s announcement back in July 2018, officials have been working with the UNHCR to develop and deliver two pilots to provide those who would otherwise be detained with a programme of case management support in the community, including access to legal advice to progress their cases to conclusion. The first pilot, Action Access, concluded on 31 March last year. I understand that the UNHCR evaluation has just been published and I will send a link to that, if I can. The second pilot, the Refugee and Migrant Advice Service, is currently supporting men and women in the community and will remain in operation until June of this year, with a further UNHCR evaluation to follow.

The noble Baroness also mentioned the Stephen Shaw reforms—I am now working backwards in my speech. The Government have commissioned two of them and I think that they form an important part of our ongoing immigration detention reform programme. We have introduced significant reforms in the last few years, including the detention gatekeeper assessing the suitability of all those referred for detention, independently of those making the referral, which brings consistency and scrutiny to prevent potentially vulnerable individuals from being detained. We have case progression panels, which consider whether continuing detention is actually appropriate in the light of progression to return and any changes in vulnerability. The adult risk policy ensures that an appropriate balance is struck between vulnerability and immigration considerations. There are now also more Home Office staff in IRCs and a higher ratio of supplier staff to people in detention.

The noble Baroness, Lady Hamwee, mentioned Brook House, absolutely rightly. We have implemented steps across the detention estate to enhance assurance and oversight of service provision. We have strengthened our capacity to monitor performance across the estate. This includes: action to refresh and reinforce whistleblowing; improving information flows on and analysis of complaints, incidents and use of force to better enable effective interventions, where appropriate; strengthening service and contract monitoring within IRCs; and enhancing supplier and Home Office engagement with people in detention.

In the period ahead, new contracts will set high expectations for the quality of management and staffing in IRCs. The contract for the recently opened Derwentside IRC, and the new contract to operate Dungavel House IRC, take into account Stephen Shaw’s two reviews of vulnerability in detention and the lessons from the events of Brook House in 2017, in particular through strengthening IRC staffing levels, professional skills in staff and an assurance on whistleblowing procedures. The design of the new IRC contract also takes into account the findings from the National Audit Office’s review of the management of the Brook House IRC contract in 2019, with more importance given to issues of safeguarding, the welfare of detained individuals, staff culture and training. I hope that noble Lords can see the sort of progress that has been made over the last few years.

I think that I have talked through Amendments 187 to 189. Let me just touch on Amendment 189. The proposal for the judiciary to be involved in considering cases at or around the 96-hour period of detention would place significant additional burdens on the Courts & Tribunals Service and legal aid budgets, due to the dramatic rise in the number of cases that would need to be referred. These increases would make the system unsustainable without significant reform.

The statutory powers to detain are rightly vested in the Secretary of State. Going back to the point of the noble Baroness, Lady Lister, it is unlawful to detain  people indefinitely. There are safeguards in the system, including access to the courts in the form of judicial review, bail applications and automatic referrals for consideration of bail.

On privately run institutions, the needs of those in detention are safeguarded by a robust statutory and policy framework for operating the immigration detention estate. This includes: the Detention Centre Rules, the Short-term Holding Facility Rules, published operating standards for IRCs, escorting and pre-departure accommodation, and published detention services orders, which provide detailed operational guidance. We are very committed to ensuring that everyone in immigration detention is treated in line with proper standards of care and decency. Robust statutory oversight is provided by HM Chief Inspector of Prisons and the independent monitoring boards.

The Home Office contracts specialised private sector companies to provide a wide range of custodial services for the operation, management and maintenance of those in the detention estate. However, although the operation, management and maintenance of IRCs is undertaken by experienced custodial suppliers, it is important to note that the Home Office has overall responsibility for ensuring that companies meet the required standards. In every IRC we have a Home Office compliance team, which is responsible for ensuring that suppliers are fulfilling their contractual requirements. They monitor the services provided, the treatment of detained individuals and the condition of the establishment, and ensure that the Home Office receives effective service and value for money. We have also introduced dedicated teams in each IRC to engage proactively with detained individuals and liaise between them and their Home Office caseworkers.

The noble Baroness, Lady Lister, rightly talked about mental health issues in IRCs. We have 24-hour medical provision in IRCs, but she is absolutely right that mental health issues must be of prime concern. I also mentioned earlier the adults at risk policy.

I think that is about it, but I close by saying that detention decisions are made on a case-by-case basis. I hope that, with those rather random responses, going backwards, the noble Baroness will be happy to withdraw her amendment.

Baroness Lister of Burtersett (Lab)
I may have missed it because of the lateness of the hour, but I am not sure the Minister addressed the central proposition that there should be a time limit to detention.

Baroness Williams of Trafford (Con)
I did address that point. The noble Baroness will not be surprised to know that we are against putting time limits in the Bill because of the potential for abuse. I have said this before, and opposition to it has not changed our mind.

Baroness Hamwee (LD)
My Lords, obviously that is disappointing. I do not feel I am in a position to judge what, on the face of it, seems encouraging from the comments that have been made about improvement of detention arrangements. I will be very interested to see the UNHCR evaluation that the Minister mentioned. However, I cannot help saying—I suppose it is the role of the Opposition to approach assurances with our own questions—that I remember the gatekeeper point and that the JCHR, of which I was a member, was unpersuaded that that role was effective.

23:15:00

With regard to the points on care and decency, not just in Brook House but throughout the detention estate, it seems that it took the media to prompt action and not the reports by inspectorates and others through the system. I suspect that the explanation we have had may prompt views from the sector; let us see what happens. I beg leave to withdraw the amendment.

Amendment 187 withdrawn.

Amendments 188 to 191 not moved.

Amendment 192 had been withdrawn from the Marshalled List.

Amendments 193 and 193A not moved.

Clause 79 agreed.

Clause 80: Transitional and consequential provision

Amendment 194 not moved.

Clause 80 agreed.

Clause 81 agreed

Clause 82: Extent

Amendment 194A not moved.

Clause 82 agreed.

Clause 83: Commencement

Amendment 195 and 196 not moved.

Clause 83 agreed.

Clause 84 agreed.

House resumed.

Bill reported without amendment.

House adjourned at 11.18 pm.