Border Security, Asylum and Immigration Bill

Committee (2nd Day)

15:48:00

Clause 13: Supplying articles for use in immigration crime

Amendment 31

Moved by

31: Clause 13, page 7, line 9, leave out “knows or suspects that” and insert “intends that, or is reckless as to whether,” Member’s explanatory statement This amendment gives effect to the JCHR’s recommendation that the mens rea threshold for clause 13 ought to be one of intention or recklessness.

My Lords, the first part of day 2 in Committee deals with organised immigration crime offences. We will hear later about safeguards and modern slavery, and will return to the question of what might constitute a reasonable explanation on the part of an irregular migrant, but we begin with Amendments 31 and 41 in my name, which deal with mens rea. I am also happy to be associated with Amendments 32, 42 and 53, which are grouped with these. The Committee should note too that these amendments are linked to the next group, beginning with Amendment 33. I will keep some of my powder dry in suggesting why the Minister should also give them a fair wind or at least a promise of further consideration. The Committee will know that the amendments in this and the subsequent group are among the recommendations contained in the Joint Committee on Human Rights report on the Bill, appearing in the report as amendment 3. I was grateful to the Minister for his assurance that, before we reach the next stage of the Bill in September, there will be a considered response to the JCHR report and its recommendations. As a grammar school boy from a council estate with a mother whose first language was Irish rather than English, I remember being daunted as an 11 year- old by my first lesson in Latin. Later in life I read with some amusement that Winston Churchill questioned the use of the vocative case “O table” when learning the word mensa. His teacher’s explanation, that it was used to address a table, was met with Churchill’s practical, albeit impertinent, response, “But I never do”. However, I think the great man would have seen much more practical use for the words mens rea, meaning guilty mind in Latin. Linguistics to one side, my barrister daughter assures me that it remains a crucial concept in criminal law. It refers to the mental state of a defendant at the time of committing a crime, specifically their intention, knowledge or recklessness regarding the prohibited act. That mental element, along with the physical act, actus reus, must be proven for a person to be found guilty of a crime. My Amendment 31 would leave out “knows or suspects that” and insert “intends that, or is reckless as to whether”. This amendment would give effect to the JCHR’s recommendation that the mens rea threshold for Clause 13 ought to be one of intention or recklessness. Amendment 41, which is amendment 4 in the Joint Committee report, appears at Clause 14, page 8, line 9. It would leave out “knows or suspects that” and insert “intends that, or is reckless as to whether”. Amendment 41 would also give effect to the JCHR recommendation that the mens rea threshold for Clause 14 ought to be one of intention or recklessness. It would have the same effect as Amendment 31, but in a different clause. Put these amendments into the context of Clauses 13 to 17, which create three new precursor offences to target the activities of facilitators and organised criminal gangs that look to profit from organised immigration crime. These amendments seek to raise the mens rea threshold for which someone might be caught by the offence of supplying, offering to supply or handling a relevant article for use in the commission of certain immigration offences. The words in Clause 13, “knows or suspects that”, are a lower mens rea threshold compared with intention and recklessness, which is what the JCHR recommendation is urging us to substitute. The JCHR report notes that “comparable precursor terrorism offences have a higher mental element, requiring intention to commit or assist in the commission of terrorist acts”. In paragraph 17 of the JCHR report, Liberty provides an example in its written evidence. It illustrates how a woman fleeing persecution who has had her phone stolen, and her British grandfather who provides her with a phone to help her—despite suspecting that she will use it to contact smugglers—might both be caught by this offence. In paragraph 19 of the JCHR report, ILPA, the Immigration Law Practitioners’ Association, provides a further example: “A well-meaning individual providing voluntary humanitarian assistance in Calais hands out SIM Cards. A father receives one and passes a mobile phone and the SIM card to his daughter”. They may both be prosecuted for having supplied a relevant article. Paragraph 38 of the JCHR report concludes that “the breadth of these precursor offences” captured in Clauses 13 to 17 “poses a risk of unintended harms to those who are most vulnerable”. These relevant amendments seek to mitigate this risk by seeking greater circumscription and more robust safeguards. Paragraph 50 of the JCHR report similarly concludes that the precursor offences captured in Clauses 13 to 17 “create uncertainty, extend beyond the Government’s stated … aim, and risk inadvertently criminalising persons who ought to be protected from criminal penalty”. I hope the Minister, the noble Lord, Lord Hanson, agrees that some fine-tuning, while not preventing prosecutions, could strike a better balance. I commend the amendments to the Committee and beg to move.

My Lords, I did two years of Roman law, which did not stick, but the mens rea in criminal law did stick. The noble Lord, Lord Alton, and I are very much on the same page here. He did not quote the rather neat line from his committee’s report: that it considers that the “precursor offences would benefit from greater circumscription”. I thought that was very circumspect, and rather typical of the careful language our Select Committees use. My Amendments 32, 42 and 53 are, if you like, more instinctive and a bit more amateur; the noble Lord’s are technically better, and I am happy to support them. My amendments go to the words “suspects” and “suspicion” in Clauses 13, 14 and 16. That is a very low threshold, with the burden being on the person charged to show beyond all reasonable doubt that they had a reasonable excuse. I looked up the definition, and the Oxford English Dictionary defines to “suspect” as to “imagine … on slight or no evidence”, and “to believe or fancy to be guilty … with insufficient proof or knowledge”. The noble Lord, Lord Jackson, on the first day in Committee, working from a superseded group of amendments—although it was not his fault—described all the amendments in the group, which included these, as being “well meaning”. I choose to take that as a compliment, although I am not sure that it was intended quite directly as one. He said that they would “significantly change the burden of proof in respect of evidence”.—[Official Report, 26/6/2025; col. 447.] Exactly, and that is the point. These are criminal offences with substantial penalties, and that should require a high burden of proof. I am very uneasy that, in the circumstances, a term that I could describe as casual does not require much from the prosecution. We will come to the content later, but I will raise this point whatever the content of the offence.

My Lords, I listened very carefully to the noble Lord, Lord Alton, and have a great deal of respect for the side of the argument he is coming from. But the piece missing from his argument, and from that of the noble Baroness, Lady Hamwee, is the concept of deterrence. What the Government are trying to do, as far as I understand it—the Minister will correct me if I have got this wrong—is to put in place a framework that actually stops the organised criminal groups, as well as those who pay them and those who help facilitate that immigration crime. The intention is to stop them doing these things in the first place, and there is a balance to strike between the criminal law regime you put in place and the penalties. It needs to be sufficiently tough that you actually deter people in the first place. The Joint Committee’s report says that the “scope is broad, the thresholds are low, and the penalties are high”. That is correct, but that is because the Government are trying, I think—and if so, I support them—to set those penalties so that people are deterred from trying to cross the channel. Let us remind ourselves that they are doing so from a safe country. They are not fleeing persecution in France; they are already in a safe European country. They may have been fleeing persecution in the country from which they originally came, but they are now in a safe European country. Of course, we also know that a lot of the people undertaking these journeys are not fleeing persecution at all; they are travelling, perfectly understandably, for economic reasons, but those are not reasons we should allow.

16:00:00

Let me just pick up the examples the noble Lord, Lord Alton, quoted from the Joint Committee’s report, on which I have a slightly different take. Their presentation in the report is intended to make the reader think that, self-evidently, we should be on the side of the people in the examples—I think that is the purpose—and therefore we follow through and, in effect, support the amendments. I am afraid to say to noble Lords that I do not necessarily follow that at all.

The example is given at paragraph 22 of a teenage boy in northern France who sends his mother in the UK a screenshot of a weather report showing that the channel will be relatively clear, and he crosses to the UK the following day in a dinghy. She has committed an offence because she read the message, as has her son. Well, yes, he should have committed an offence: he was in a safe country, and he has just crossed into the United Kingdom, facilitated by people traffickers, via a journey we are trying to stop him taking. I think it is the Government’s intention that he is committing an offence. They want him to think he would be committing an offence and are trying to deter the action that is currently happening, because we are trying to stop people coming to this country. That is the point of this legislation.

The danger with the Joint Committee’s report is that it is coming at this from a particular angle—only from the point of view of the person undertaking the journey, not the wider position, which is what we are trying to do by having a border control regime that deters people entering the UK when they do not have a reasonable reason for doing so.

Is it not sensible to look at it from the point of view of the person who may be undertaking the action? If there is to be deterrence, you have to look at it from that point of view. Whatever your objective, you have to look at it from the point of view of the person who may be affected; otherwise, you cannot assess whether there is a deterrent effect. Does the noble Lord think that people who reach the northern shores of Europe are as aware of the detail of legislation as his argument would require them to be?

I shall address both the points the noble Baroness has made. On the first, in one sense I am very much looking at it from the point of view of the participants. I want them to be clear that carrying out that particular set of actions would indeed be an offence with a significant penalty, because I want them to then conclude that they do not want to do that and do not want to cross the channel to the United Kingdom from the safe country in which they currently reside. That is the point of the legislation. On the second point, I am clear, having had some experience of running the immigration regime, and particularly of the development of technology, that the noble Baroness will find that most of the people concerned have mobile telephones and are very well aware of what is going on. There are many groups out there that provide detailed information to migrants about the law and those who can facilitate their being smuggled into the United Kingdom. They are very well aware of changes we make and of the legal position. We were very well aware—I am saying this only because it has just occurred to me—that in the run-up to the election, lots of communications were being made with people in northern France about the likely outcome of that election and whether they should stay put or make the crossing to the United Kingdom. They are very well aware of what is going on, and that is very relevant.

The example that Liberty gave—the committee did not invent it—is built on a statement by the committee that: “There is no express distinction in clause 16 between those who engage in such conduct as smugglers, and those who engage in such conduct as asylum seekers, victims of modern slavery, or persons (including children) who may be coerced into carrying items such as phones”. I am sure that, with his experience, the noble Lord will accept that that is the case. It is about trying to find a balance, so that we can deal with those making money from creating the circumstances to smuggle people in and out of this country and those who are genuine, including children like those whom the committee describes.

The noble Lord makes half a good point. I agree with him on people who are victims of modern slavery. I think my noble friend Lady May will speak to some amendments on that in later groups. I am sorry if this disappoints noble Lords, but the fact that the example in the report was given by Liberty does not strengthen the case, in my humble opinion, but somewhat lessens it. When I was Immigration Minister, Liberty spent most of its time trying to undermine our immigration legislation and argued for not protecting our borders. It failed to understand, importantly, that if the British public do not think that we have a robust immigration and asylum system then they will become increasingly intolerant of protecting people whom I believe should be protected. You command wide public support for people genuinely fleeing persecution, for whom we should provide refuge, by being clear that we have the ability to stop those who are not entitled to that protection coming to our country and making a mockery of our system. Organisations in favour of our looking after genuine asylum seekers and people who would meet the test of being a refugee should sometimes reflect that being uncritical, as I am afraid many of them are, about those people attempting to come to the United Kingdom damages the public’s view and our ability to have a system that genuinely helps those who need it, as everyone then gets swept up because the system is not working. Finally, I may have misunderstood the noble Baroness—I am very happy to take an intervention if I have it wrong—but, on her amendments probing the removal of the defence, she said that she wanted the prosecution to have to make the argument. She said that the current drafting means that people would have to prove their defence beyond a reasonable doubt. That is not my understanding of how this works. It is for the prosecution to prove beyond a reasonable doubt that somebody is guilty of an offence and the legislation, as drafted, provides that there are defences that people can offer as to why they may have conducted themselves in a certain way. Unless I have misunderstood something very badly, that does not require the person to prove their defence beyond a reasonable doubt—all they have to do is, in setting out the defence, raise at least a reasonable doubt with the court that they were not guilty of the offence. That seems the right place to have the test in our criminal justice system. As currently drafted, the legislation does not have the effect that she thinks it does.

We debated the reverse burden of proof on the first day in Committee. I certainly do not take it from any of the briefings I have had, or from previous debates on the reverse burden of proof in other Bills, that it is as the noble Lord described it. As I understand it, you are charged and then you have to put forward a defence if you believe you have a reasonable excuse—which you have if there is sufficient evidence of the matter to raise an issue and the contrary is not proved beyond reasonable doubt. It therefore throws the “not proved beyond reasonable doubt” on to the defence. Presumably the CPS, in the usual way, would have to believe that the public interest test is met and so on, but it upends the normal way that we do things.

I am grateful for that explanation. As I explained to the Committee, I could not be here on the first day but I have read through the debate and I am afraid I did not agree with that then either. I just do not buy that that is what this does. The prosecution has to prove beyond a reasonable doubt that somebody is guilty of the offence. In the legislation as drafted by the Government, somebody can offer a defence and all they have to do for that defence to be successful is create a reasonable doubt in the minds of the jury. That does not reverse the burden of proof at all. To pick up on the point in the amendment about changing “knows or suspects” to “intends that, or is reckless”, if you know or suspect something untoward is going to take place, that is a reasonably decent idea that someone should not really be doing it. If I know or suspect someone is going to commit crime, it is probably not very wise if I provide them with equipment that would enable them to commit that crime. I do not really see why I would want that test to be much higher. Let us remember that we are not trying to criminalise people who are thinking about doing this; we are trying to say to them, “If you do this, you will be committing a criminal offence and we’d like you not to do it”. That is the purpose of this. Ministers would be delighted if they did not have to prosecute anybody—certainly none of the people contemplating crossing the channel. They want to put in place a deterrent regime that stops them doing it. That is the objective of the legislation. Weakening it would just remove that deterrent effect and we would get back to the position in which we do not have control of our borders, significant numbers of people cross the channel and undertake unsafe journeys, and the British people have no confidence in our immigration and asylum system, which would damage it for the legitimate refugees for whom we want to provide proper protection. We can only do that if there is a system that commands public confidence. If I have understood what the Government intend to do, I respectfully suggest that the Committee should not support the amendments tabled by noble Lord and noble Baroness. We should stick with the wording in the Bill.

My Lords, I can be very concise, mainly because I agree almost entirely with everything that the noble Lord, Lord Harper, said. We should not lose sight of the fact that this whole issue is a real concern to the public. They think we are being made fools of and they are largely right. It is time that the law was tightened up and the authorities got a grip on the situation. I support the Government’s drafting and I hope it will be widely supported.

My Lords, I oppose these amendments. The noble Baroness, Lady Hamwee, was gracious in absolving me of my stupidity in jumping ahead. I misread the amendments last week, but we are now in group 2, so we can discuss mens rea. It is quite in order for noble Lords in this House to test the efficacy and appropriateness of new offences; there is nothing wrong with that. I have read in detail the report by the Joint Committee on Human Rights, which is ably chaired by the noble Lord, Lord Alton of Liverpool, and I have even read the ILPA briefing on the Bill—which takes some doing if you come from my perspective. I concur with the pithy remarks of my noble friend Lord Harper—who has great experience as a former Immigration Minister—that one does not always take Liberty’s briefings as the true gospel. However, the reason I oppose these amendments is that I am not convinced by the argument prayed in aid by noble Lords, even in the JCHR report. I thought the comparison on page 10 was a specious comparison of precursor offences when they were compared with terrorism offences. I did not think that was an appropriate offence to compare it with, frankly. It is quite right to test the limits of the mens rea doctrine in respect of intention, recklessness and the reverse evidential burden of proof contained within the reasonable excuse provisions. But one has to look at the real-world consequences of what would happen if we accepted these sweeping amendments in terms of the interpretation by the judiciary and others of an amended Bill with this wording in it. I used the words “well-meaning” and it is absolutely not ignoble to put forward these amendments. However, there is a degree of otherworldly naivety about the damaging implications of the Bill being amended in this way.

16:15:00

The noble Lord, Lord Alton, for whom I have great respect, and others talked about the importance of balance. This unbalances the Bill. In many respects, its wording is not tough enough, but the Government have made a huge strategic mistake in scrapping the Rwanda plan. It was not perfect and I accept that it was costly and did not deliver in the timescale that we all envisaged. But there has to be a plan B if you scrap plan A. Even allowing for that, this Bill is trying to deal with a significant public safety and security issue that may even be considered an emergency if the numbers keep rising. So, I do not agree with the amendments, because it would be wrong to alter the mens rea threshold. The case has not been made for that.

I would challenge the Minister, incidentally, on Clause 13(3)(b)(i) on “reasonable excuse”. In my mind, that is a get-out clause too far and there is a potential for it to become subject to abuse. It is not a unique subsection to put in a Bill, but it is unusual to carve out certain groups, individuals and actions in primary legislation, effectively for special treatment in such a difficult situation.

So, in essence, I oppose the amendments because they are designed, maybe not deliberately, to make prosecutions and enforcement more difficult. They weaken and invalidate the legislation, or at least the draft Bill as it now stands, and ignore the wider public interest in preventing illegal immigration and the current significant concern at uncontrolled immigration. The amendments disregard the acute and urgent geopolitical pressures around irregular or illegal immigration. They reduce the push factor and increase the pull factor in people trafficking and that business model, and the business model of organised crime gangs. I know that the noble Baroness, Lady Chakrabarti, will not like the next few words, but the amendments place international treaties above the safety and security of British citizens, thereby moving accountability and decision-making in this key security and safety area even further away from the electorate, from ordinary British voters.

For those reasons, these amendments do not stand up. With all due respect, the case has not been made by noble Lords and it would be damaging to amend the Bill in this way. For those reasons, I oppose the amendments.

My Lords, what we have just heard is not unexpected. I understand that the Conservative Benches really want to stop everyone from coming across and making those dangerous crossings, which everyone would want to do, but it is quite surprising that we are debating how these matters will work between ourselves and France when the man holding the reins of the other half of this continent is in the next room to us, telling Members what he thinks on these matters. So I ask the Minister what he has heard so far about the issue of the exchange mechanism that has been trailed in our newspapers so strongly. Secondly, I thank my noble friend Lady Hamwee for acting as what the Minister called the “super-prop” or the “super-sub” last week when some of us were away working in the Council of Europe. On these very particular amendments, it is my reading of the report from the Joint Committee on Human Rights that these two amendments were agreed unanimously by all committee members, including the Conservatives. If that is the case, it is not just simply a matter of people saying, “We want to try and stop this happening in broader terms”, but there are Conservative members who have looked very closely at this particular part of the legislation, are trying to work out what is most appropriate and have committed themselves to it, both in this House and in the other House as well. First of all, the noble Lord, Lord Harper, raised the issue that having to prove yourself not guilty is not something we do in this country. You have to be charged, but you do not have to go into the case from the other end of it. The issue here before us is what it will capture in that state between people who might or might not be guilty of what they are being charged with. For example, two weeks ago, I was lucky enough to go to the northern coast of France and meet all the French authorities, from the préfecture downwards right through to on the beaches. One of the things pointed out to me was a Catholic centre where people were being helped because of normal life. They were being helped with food and trying to get appropriate clothing, and they were also being given SIM cards. If the Catholic priest who was giving out the SIM cards is going to be caught by this legislation, we ought to be very careful about the words that we use. The change is in the words “intends that” from “knows or suspects that”. Though the cases we are going to discuss later are very proper and important offences, they are really focused on the smugglers and not the smuggled, and the smugglers getting 15 years in prison, which is the maximum sentence before us, yet the only test of getting into that process is whether somebody knows or suspects that a relevant article will be used by a person in connection to an offence. So it is not that simple to simply say there is no link between the nature of the offence and the target for it. I am rather hoping that the Minister will tell us that this is a very tricky issue, it is something in respect of human rights that has been reflected throughout our law—international law as well as the law of our own country, both put together—and in the international conventions: not just those we were a signatory to but those we signed up to and those we created, and not just the ECHR but others as well.

Will the noble Lord give way? I am listening with great care. If I can direct him back to the issue of reverse burden of proof, he will know that this is not unusual—it is not common, but it is not unprecedented. Section 139 of the Criminal Justice Act 1988 states that, if someone is found with a blade in a public place and the prosecution proves possession, the defendant must prove they had a good reason for possessing it. The Health and Safety at Work etc. Act 1974 places a reverse burden on the defendant to prove that they took all reasonable steps to avoid the offence. These things are not unusual. For such an important public safety issue, surely the noble Lord will concede that it is not unusual or unprecedented for the Government to seek to take these matters in the legislation in the way they will.

I do not think that either of the noble Lords were in the House when we put forward the same arguments about the burden of proof regarding blades and, I think I am right in saying, chemicals which could burn and disfigure, which can also be domestic—

Acid.

I thank the noble Lord— I knew there was a word for it. We do not deny that there are examples on the statute book, but we objected to them at the time.

I think the answer is related to the nature of the offence which is before us. An offence which is punishable by a 15-year maximum jail sentence is a very serious and big crime to have committed. To put it simply, the suspicion threshold is seldom applied in our criminal law because such a low threshold —the noble Lord was saying that there are examples—is a disproportionate response to where someone has not been intending to commit a crime and with such a disproportionate sense of what harm they might be doing. The balance between the nature of the offence and the nature of the judgment which creates that offence is what is disproportionate.

In this discussion about reverse burden of proof, something is being missed here, which is why the knife example the noble Lord gave was not a good one. There are two parts to the test in Clause 13, which is that you have to have supplied the article but also have to know or suspect the use to which it is going to be put. So it is not just enough for somebody to show that you did the thing; the prosecution has to prove that you knew or suspected something as well. So that is not a good example, and therefore it does not flip the burden of proof around. It still lies with the prosecution.

I did not use the example of a knife. I can refer the Member to the Hansard of the previous day in Committee, which I have already apologised for not being at it because I was working with colleagues on immigration matters in another parliament at which this Parliament is represented. It would be unwise to try and deal with arguments that we had last week, of which I was not a part, but I simply say that the relationship between the offence in this case and the threshold which is being put before it is not significant. I suspect that we will treat and think about this throughout the course of the debate on the whole Bill today when we relate ourselves to the fact that this is meant to be aimed at the smugglers. One of the things in common to all the people on the north coast of France, who represent so many different parts of the structure that is trying to stop the people taking these dangerous routes, was that they were concentrating on the smugglers. Everything was determined in terms of how they could get at the smugglers, and protecting human life and being humane in what they do as well. The challenge in the Bill as we go through, and to the Minister, who I hope will give me a hopeful reply on what the man in the next room is saying, is the fact that this is a distinction between making very powerful offences for challenging those who are guilty of this horrible crime of taking people in terrible conditions on what are very dangerous routes indeed. I have just one final point about the messages which smugglers send to the people who are going to be smuggled. I am sure they will not be saying, “You’d better be careful: the British are changing their laws in these directions”. As we were told by those who intercept their telephones in France, it is much more about where they should go and what they should avoid going to, what they should avoid doing and what they should do in terms of getting their journey. That is really the whole challenge from the smugglers. I welcome the response from the JCHR on the reason why, unanimously, it posed and passed these resolutions.

My Lords, before the noble Lord sits down, I am grateful that he ended on that note, because I just want, for the sake of the record, to say that although paragraphs 1 to 52 were agreed unanimously, the entire report was not—two members voted against and one abstained—but it was a very thorough report, conducted, I might say, on all sides with a great deal of diligence and thoroughness. All my colleagues participated in that in a robust way, as the noble Lord might imagine.

16:30:00

My Lords, I am grateful to all noble Lords who have contributed. Just, I hope, to bring a little clarity to the latter discussion between my noble friend Lord Harper and the noble Lord, Lord German, as I read it, Clause 13, “Supplying articles for use in immigration crime”, sets out in its first subsection the offence, and it does so neatly separating the actus reus, the actual act—here, offering to supply a relevant article—from the mens rea, which is knowledge or suspicion. Subsection (2) goes on to state: “It is a defence for a person charged with an offence under this section to show that they had a reasonable excuse”. It was subsection (2) that we debated at length on the previous day in Committee on this Bill, and it is at that point that the burden of proof shifts to the defence to prove their defence under the subsection. I am very grateful to the noble Lord, Lord Alton of Liverpool, for bringing these amendments. It has proved to be a very stimulating debate. As others have said, I have an immense amount of respect for him, given his long and distinguished career, and I am also grateful to the noble Baroness, Lady Hamwee. I listened very carefully to what they both said. I have to say that I fundamentally disagree with the amendments that they have brought, however. They seek to alter the mens rea principle in Clauses 13, 14 and 16, by replacing the current standard of knowledge or suspicion with one of “intent” in the case of the amendments of the noble Lord, Lord Alton, or “belief” in the case of the amendments from the noble Baroness, Lady Hamwee. It does not seem to me to be in dispute that these amendments, if passed, would introduce a higher and more complex threshold for the mental elements of the offences, thereby raising the requirements for securing conviction and making it significantly more difficult to hold to account those involved in supplying equipment for illegal crossings and other articles used in the facilitation of unlawful entry into the United Kingdom. In doing so, they would risk creating precisely the kind of ambiguity that organised criminal gangs thrive on. I think it is important to remind ourselves what this clause is designed to address. It is aimed at those who provide the tools that make dangerous, illegal crossings possible: those who supply forged passports, false work permits, dinghies and outboard motors that fuel the people-smuggling trade. These individuals are the logistical agents of criminal networks responsible not only for undermining the security of our borders but for endangering lives. Let us not forget that more than 20,000 people have now crossed the channel in small boats in 2025 alone and, tragically, some have died in the attempt, fundamentally because the journeys are facilitated by those who care more about profit than human life. If we are to be serious about tackling this, we must ensure that the legal framework is as robust and usable as possible. If we replace the standard of knowledge or suspicion with intention or belief, prosecutors will be forced to demonstrate not merely that a person knew or suspected that their goods would be used for immigration crime but that they positively intended or actively believed that they would be used as such. That is a much higher bar, and one that would inevitably lead to fewer prosecutions, fewer convictions and fewer disruptions to these dangerous criminal networks. The very thorough report from the Joint Committee said that the current standard in the Bill is a low threshold compared to, for example, intentional recklessness. We note that comparable precursor terrorism offences have a higher mental element, requiring intention to commit or assist in the commission of terrorist acts. I think this was quoted by the noble Lord, Lord Alton. However, as the noble Lord, Lord Jackson, correctly said, these terrorism offences are not precursors and so are not comparable. The mens rea test of knowledge used in this Bill—the one that the noble Lord and the JCHR have criticised—is the same standard that is used in offences under the Immigration Act 1971, albeit about entry and not the supply of articles. Section 24B(1) of that Act states that: “A person who … requires leave to enter the United Kingdom under this Act, and … knowingly enters the United Kingdom without such leave, commits an offence”. The operative word here is “knowingly”. This is the same standard that is applied to the offences in Sections 24(A1), (C1), (D1) and (E1), and Sections 24A, 25 and 25A, of the Immigration Act 1971. In short, existing immigration offences all use the test of knowledge to determine the mental element of an offence. It is therefore entirely consistent for the offences in Clauses 13, 14 and 16 to use the same test. These are not minor procedural safeguards. These are the tools that we need to dismantle the infrastructure of people smuggling. The law should be a shield for the vulnerable, not a loophole for the criminals who exploit them. We have to construct a strong legal framework, not one that is diluted and less able to protect vulnerable people as a result. My noble friend Lord Harper made the point very powerfully that this is about creating a deterrent. We need to confront this threat with a strong legal arsenal, not a weakened one. We should not be inserting language into this Bill that makes it harder to prosecute those who supply the means for deadly journeys. These are serious offences with serious consequences, and the law must reflect that seriousness. In this instance, I oppose these amendments.

I am grateful to the noble Lord, Lord Alton, and the noble Baroness, Lady Hamwee, for tabling their amendments. They have stimulated a discussion on important points that the Committee needs to consider. I am also grateful to noble Lords for attending this debate when such powerful alternative options are available not 200 metres away—I will use metres instead of my normal yards—where the President of the Republic is addressing both Houses of Parliament. The noble Lord, Lord German, tempts me to discuss what the President of the Republic is currently saying. Our relationship is very strong. There are a number of issues on which we are expected to make positive statements in the next couple of days, and we are working very closely on re-intensifying our activities on the northern coast. I will allow further discussions to take place prior to any announcements from this Dispatch Box about the outcome of any discussions between the Prime Minister, the Government and the President of the Republic. I am sure that we will return to those points when the discussions have taken place in a positive framework—as they will. I start by saying to the noble Lord, Lord Alton, that I welcome the JCHR report that was published on 20 June and thank the JCHR for its work. As the noble Lord knows, I have given commitments that the Government will respond in due course. It is worth putting on the record that all measures in this Bill are considered to be compliant with the UK’s human rights obligations, including the European Convention on Human Rights, and that the Government are fully committed to human rights at home and abroad. As my right honourable friend the Prime Minister has made clear, the United Kingdom is unequivocally committed to the European Convention on Human Rights. We will respond to those issues in due course, but I wanted to set that out at the beginning, because it is important and part of the framework that the noble Lord has brought forward. I am grateful to the noble Lord for moving his amendment. He started by giving a couple of caveats. Like him, I am a product of a council estate and proud of it, and like him, Latin passed me by at my comprehensive school—I think some people did it, but it passed me by. That does not mean that we cannot address the substance of the points that the noble Lord and the noble Baroness have made. These important issues deserve full merit and consideration. Amendments 31 and 41, on changing the mens rea in Clauses 13 and 14 from “knows or suspects that” to “intends that, or is reckless as to whether”, follow the findings from the JCHR. Those findings have unanimous support, and we will return to them in due course. In bringing those amendments forward, the CT-style power is now more in line with the counterterror legislation, which is what the noble Lord is intending. Reasonable suspicion is the same threshold as for the offence in Sections 57 and 58 of the Terrorism Act 2000. In fact, Section 57 does not have a “reasonable excuse” defence; instead, a person must show that “his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism”. The Section 57 and 58 offences contain no more safeguards when compared with the offences in Clauses 13 and 14. The mens rea of the current drafting of the clause is designed to enable law enforcement to act earlier and faster to disrupt these criminal smuggling gangs—the very point that the noble Lord, Lord Harper, has alluded to. Day in, day out, these ruthless people smugglers put vulnerable people on boats in the channel or into the back of refrigerated lorries, not caring if they live or die. As the noble Lord, Lord Jackson of Peterborough, mentioned, people have died as a result. Changing the mens rea to require law enforcement to show intention or recklessness would place undue pressure on those on the front line of tackling organised immigration crime and would slow down the response to stopping these evil criminals undertaking their actions. It is right that we do whatever we can to support law enforcement in tackling these criminals at the earliest possible stages of criminality. For that reason, disappointing as I know it will be to the noble Lord, I cannot accept the amendments. Amendments 32, 42 and 53 seek to change the mens rea for these offences from suspicion to belief. For the supplying and handling of articles and collection of information offences, amending this threshold would significantly raise the bar for enforcement. That is a point made by His Majesty’s Opposition Front Bench, along with the noble Lords, Lord Jackson of Peterborough, Lord Harper and Lord Green of Deddington. I find myself on occasion in company that I am not normally in, but it is right that, if noble Lords are right and make a sensible case, that support is welcome—as it is on this occasion. A “suspicion” threshold allows for earlier, preventive action, which is a core feature of the legislation. It is designed to enable authorities to disrupt organised crime at the preparatory stage, while still requiring a proper investigation into an individual’s activity, and not in any way damaging a defence’s ability to put up a defence to the prosecution’s case in due course. The shift from suspicion to belief would narrow the scope of these clauses, undermine their preventive purpose, reduce the chance of successful prosecutions and place a greater strain on investigative resources in the first place. It is important to note that the “knows or suspects” threshold is not novel. It is well established in UK criminal law, especially in regimes aimed at early intervention. For example, under Section 330 of the Proceeds of Crime Act 2002, professionals commit an offence if they “know or suspect that another person is engaged in money laundering” and fail to make a disclosure. Similarly, Section 19 of the Terrorism Act 2000 criminalises failure to disclose information where someone “believes or suspects” it might be useful to prevent terrorism. In both the Proceeds of Crime Act and the anti-terror legislation, the mental thresholds are designed to trigger preventive action and have been consistently upheld in the courts as proportionate and compatible with Article 6 and Article 7 of the ECHR. I go back to the point that the noble Lord, Lord Harper, mentioned: namely, that the offences in the Bill serve a preventive purpose. They are not about punishing people after harm has occurred but are instead about stopping harm happening at all. I will also speak to the concerns that the current offences might criminalise those who are acting innocently or for humanitarian reasons. Each of the relevant clauses includes the reasonable excuse defence, which is non-exhaustive and allows courts to consider the full context of the person’s action. Any good defence would bring forward those defences if, again, the thresholds were passed by the police and the CPS for bringing prosecutions under any legislation that was ultimately passed by both Houses.

16:45:00

This is a very well-recognised safeguard in UK law. Indeed, the noble Lord, Lord Cameron of Lochiel, raised from the Opposition Front Bench on the first day in Committee that there is comparable UK legislation whereby the burden of proof lies on the accused—for example the Misuse of Drugs Act 1971, where there can be a burden on the accused to prove a reasonable excuse for why they had a controlled drug in their possession. This is also the case in the Offensive Weapons Act 2019, which I served on when in the House of Commons, and, similarly, the Companies Act 2006, which requires an accused director to prove that all reasonable steps have been taken to avoid committing an offence.

I happen to think—and I think there is a common theme on many sides of this Chamber—that the courts are well equipped to assess whether someone had a legitimate reason for their actions. In practice, the burden on the defendant is only to raise an evidential basis for the excuse; it is then for the prosecution to disprove it. That is what prosecutions are about: they face defences, they have to prove that those defences are wrong, and they have to prove their case.

I will take the Minister back to the reasonable excuse in Clause 13(3). I am sure he has a view on why the wording is quite open ended. It says: “The cases in which a person has a reasonable excuse for the purposes of subsection (2) include”— these are the key words— “(but are not limited to) those in which”, et cetera, including that the organisation “does not charge for its services”. Without being too irreverent about this, Albanian people traffickers do not give you a standing order or a direct debit. There might be another way that a payment can be made, but that whole subsection is pretty open ended. Does he have any views on whether it might potentially be misused and abused if it remains as it is?

The noble Lord, Lord Jackson, would expect me to defend the Bill. We have taken judgments on the legislation and taken legal advice internally in the Home Office, and we think that that is a reasonable legislative framework for the operations that we are discussing. We will discuss in later clauses the scrapping of the Rwanda Act and that preventive deterrent, but the whole purpose of the Bill is to provide some measures of deterrence and of punishment for offences that aid and assist the dangerous illegal crossings for individuals who, in being trafficked, face very serious injury or potential death. I want to be clear that these powers are not designed for indiscriminate use. Investigations under these provisions will be intelligence-led and focused on enforcement activity on serious organised crime gangs and their enablers, not on the migrants fleeing persecution or those acting with humanitarian motives. I am not giving the Committee theoretical reassurances: these are reflected in how this will operate. The forces trying to stop the criminal gangs will use any legislation that this House passes to ensure that we act as a deterrent but also, therefore, target those individuals who have committed offences under this legislation. They will have the potential to put forward a defence; the prosecution will therefore have the potential to chop that defence to bits and prove that the actions were malicious, as under the legislation before us. In summary, these clauses contain strong safeguards, including a list of non-exhaustive reasonable excuses, to protect those acting legitimately and in good faith. These safeguards combine with the investigatory discretion that is at the heart of the police’s focus on the real potential criminals in this process, and with the prosecutions that are taken through the CPS and the prosecutions test for charging decisions to be made. Therefore, in my view, the enforcement is targeted, fair and proportionate. I hope noble Lords will reflect on those points as we continue our scrutiny of the Bill. I urge the noble Lord and the noble Baroness to reflect on what I have said and to consider whether I have convinced them. That is a matter for them to consider in due course, but at the moment I cannot accept their amendments. I assure the noble Lord that the report he has produced will be examined and we will give a full response in due course. I urge him to withdraw the amendment.

My Lords, I am extremely grateful to the Minister for the way in which he has dealt with this group of amendments and for the thorough response he has given to your Lordships in Committee this afternoon. For the avoidance of doubt, I reiterate that the Joint Committee on Human Rights welcomes the overall aims of the Bill—to deter organised crime and prevent the loss of life at sea. It is right that the Government do all they can to ensure there is a legislative framework in place to help eradicate this dangerous criminality. All of us who have spoken in the debate today are agreed about that. The issue comes down to one of judgment about whether it is preventive, whether it is a deterrent and whether it will really make any difference to those who will anyway try to break these laws. Are we doing the right things to combat this criminality? I do not know all the answers to that any more than the Joint Committee on Human Rights does, but I am grateful for what the Minister said about the importance of the report the committee produced and many of the questions we have rightly raised. In parentheses, I am glad that organisations such as Liberty take these issues as seriously as they do. They gave very valuable evidence to the committee during its inquiry. You do not have to always agree with the positions of NGOs or groups to know that they are part of the civic response to issues of this kind. We are very fortunate to have such organisations in our country.

My Lords, if the noble Lord would give way on a point of agreement, I would be grateful to him. To be clear, I am also grateful that organisations such as Liberty exist and that they have views on things—I just do not agree with them. I too am very grateful that we live in a country where such organisations exist and have contrary views. On that point, we are in complete agreement.

I was about to say that I am grateful to the noble Lord, Lord Harper, for the other points he made but, yes, we are agreed about that too. I thank his noble friend, the noble Lord, Lord Jackson, and, on the Front Bench, the noble Lord, Lord Cameron, for the way in which they put their arguments this afternoon. I was not surprised by those arguments, which were put quite eloquently in our committee, incidentally, as some here will almost certainly remember, by the noble Lord, Lord Murray of Blidworth, who was of course a Minister in the last Government. We can disagree about these things without having to fall out over it. I am grateful to my noble friend Lord Green. We do not agree about many of these questions, but we know there is a public conviction that wants something done about illegality. That is why I argue for safe and legal routes, which my noble friend and I disagree on. We have to find other ways forward of tackling the root cause. I can sound like a broken record about this, but there are 122 million displaced people in the world today and that has doubled in the last decade. If we do not deal with the root causes, we will go on introducing Bills such as this indefinitely, ad nauseam, and will still not get to the root of dealing with the problem. The noble Baroness, Lady Hamwee, presented the arguments perfectly as she always does. I strongly agree with her remark that we are taking these actions on slight or no evidence. She said that it does not require much for a prosecution. We must not emasculate our laws or commitments to things such as the refugee convention to try to tackle something we all know needs to be tackled; it is a question of striking the right balance. I have listened to what the Minister has said in Committee this afternoon. He is right that we should all reflect on this. I look forward to seeing what he has to say to the Joint Committee when he publishes his response. For now, I beg leave to withdraw the amendment.

Amendment 31 withdrawn.

Amendment 32 not moved.

Amendment 33

Moved by

33: Clause 13, page 7, line 12, at end insert “, and (c) P derives a financial or material benefit, directly or indirectly, from the supply or offer to supply a relevant article.”Member’s explanatory statement This amendment gives effect to the JCHR’s recommendation that the scope of the offence in clause 13 should only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain.

My Lords, I hope that the Committee will bear with me as I now bring Joint Committee on Human Rights Amendments 33, 35, 38, 44, 57 and 203 for consideration. Amendment 33 appears as amendment 1 in the Joint Committee report and would give effect to the JCHR’s recommendation that the scope of the offence in Clause 13 should apply only to persons involved in the smuggling of persons for direct or indirect financial or material gain. I described in the debate on the earlier group how Clauses 13 to 17 create three new precursor offences to target the activities of facilitators and organised criminal gangs who look to profit from organised immigration crime. Paragraphs 38 and 50 of the JCHR report conclude that the breadth of the precursor offences captured in those clauses risks “unintended harms to those who are most vulnerable” and “inadvertently criminalising persons who ought to be protected from criminal penalty”. Ultimately, the scope of the offences is therefore broad, and we should at least consider that. Paragraph 51 of the JCHR report recommends: “The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain”. That is what this amendment seeks to achieve. I refer again to the examples from Liberty and the ILPA on how the scope of these offences might apply to those who are not smugglers. Amendment 35 would insert, at Clause 13, page 7, line 15: “For the purpose of subsection (2), a defence of reasonable excuse must be interpreted in accordance with Article 31 of the UN Convention Relating to the Status of Refugees 1951, Article 5 of the Protocol against Smuggling of Migrants by Land, Sea and Air 2000, and section 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005”, all of which this country is committed to. The amendment would give effect to the JCHR recommendation that the defence of reasonable excuse in Clause 13 must be interpreted compatibly with the UK’s international legal obligations not to penalise refugees, smuggled persons and the victims of trafficking in certain circumstances. Clauses 13 and 14 provide for non-exhaustive reasonable excuses to the aforementioned precursor offences. They include actions to rescue a person from danger or serious harm and actions taken on behalf of an organisation that aims to assist asylum seekers for free, not making money out of the exercise. The rationale for strengthening that provision is explained in the recommendations in paragraph 51 of the report: “The defence of ‘reasonable excuse’ ought to explicitly provide that it must be interpreted compatibly with Article 31 of the Refugee Convention, Article 5 of the Smuggling Protocol, and section 26 of the Council of Europe Convention Against Trafficking”— hence Amendment 35. Recall that Article 31 prohibits the general imposition of penalties on refugees on account of their unlawful entry or presence in the country where they claim asylum. This protection applies to refugees who come directly from the state where they first faced persecution. In September 2024 the United Nations High Commissioner for Refugees published legal guidance on international protection relating to non-penalisation of refugees on account of irregular entry. It acknowledges that in seeking asylum, many are compelled to arrive, enter or stay in a territory without authorisation or documentation, or “with documentation which is insufficient, false or obtained by fraudulent means, or by using clandestine modes of entry”. Article 5 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, of 2000, provides that: “Migrants shall not become liable to criminal prosecution” for the fact of having been smuggled with intent by persons “in order to obtain, directly or indirectly, a financial or other material benefit”. Article 26 of ECAT provides for a “Non-punishment provision” for victims of human trafficking who have been engaged in illegal activities provided that “they have been compelled to do so”. As the noble Lord, Lord Harper, mentioned during his remarks earlier, we will hear later from the noble Baroness, Lady May, on the subject of human trafficking. In circumstances where victims of trafficking have committed an offence of supplying or handling relevant articles or collecting information likely to be useful in immigration crime, they must not be prosecuted if the commission of these offences was as a result of trafficking. Any prosecution of victims in such circumstances would be in breach of Article 26 of ECAT.

17:00:00

While the Government have put forward the commendable aim of disrupting the criminal networks engaged in smuggling people to the UK, Professor Sarah Singer said in oral evidence to our committee that

“these offences will not be targeted at the people who conduct people-smuggling operations, most of whom never set foot on UK soil and will not be reached by the new offences. Rather, who will be targeted? … the very vulnerable people who are seeking asylum in this country and making these irregular journeys, because they have no other option”.

Amendment 38, which appears in the JCHR report as amendment 2, proposes that a person P commits an offence if

“P derives a financial or material benefit, directly or indirectly from the handling of a relevant article”.

This amendment gives effect to our recommendation that

“the scope of the offence in clause 14 should only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain”.

Paragraphs 38 and 50 of the JCHR report conclude that the breadth of the precursor offences captured in Clauses 13 and 17 of the Bill risk unintended harms to those who are most vulnerable, and

“risk inadvertently criminalising persons who ought to be protected from criminal penalty”.

Ultimately, we say that the scope of the offences is too broad. Paragraph 51 of the JCHR report recommends:

“The Government should give consideration to amending the scope of the offences to ensure that they only apply to persons involved in the smuggling of persons for direct or indirect financial or material gain”.

That is what this amendment seeks to achieve.

I turn to Amendment 44, which proposes inserting into Clause 14:

“For the purpose of subsection (3), a defence of reasonable excuse must be interpreted compatibly with Article 31 of the UN Convention Relating to the Status of Refugees 1951, Article 5 of the Protocol against Smuggling of Migrants by Land, Sea and Air 2000, and section 26 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005”.

As the explanatory statement says:

“This amendment gives effect to the JCHR recommendation that the defence of reasonable excuse in clause 14 must be interpreted compatibly with the UK’s … legal obligations not to penalise refugees, smuggled persons, and victims of trafficking”.

So it would have the same effect as Amendment 35, but it is in a different clause, to which I have already spoken.

Penultimately, I will say a word about Amendment 57. As the Committee knows, Clause 16 creates the offence of

“Collecting information for use in immigration crime”.

Clause 16 provides, as we have heard, for two defences. The first defence requires the person

“to show that their action or possession was for the purposes of a journey to be made only by them”.

The second requires the person

“to show that they had a reasonable excuse”.

However, paragraph 27 of the JCHR report highlights that, while the list of what counts as a “reasonable excuse” in the Bill is non-exhaustive,

“those seeking asylum, or the family members of those seeking asylum, are not provided with an express defence”.

Once again, I would cite Professor Sarah Singer’s evidence, which I referred to in connection with Amendment 35 and will not, therefore, repeat.

Lastly, Amendment 203 in this group appears as amendment 7 in the JCHR report, and the arguments are set out on page 20 of the report. It would insert a new clause. In brief, Section 31 of the Immigration and Asylum Act 1999 provides a statutory defence for refugees committing particular offences provided that they satisfy stated conditions. The specified offences include forgery and connected uses, the use of deception to obtain or seek to obtain leave to enter or remain or to secure the avoidance, postponement or revocation of enforcement action, the falsification of documents and offences under the Identity Documents Act 2010. Paragraph 44 of the JCHR report notes the recommendation of the previous committee that Section 31 should be amended to cover all offences relating to unauthorised entry. Our report states:

“Domestic law would offer no statutory defence for those prosecuted for these new offences, or for the underlying offences of illegal entry/arrival or assisting unlawful migration”.

Again, this is intended to ensure compliance with Article 31 of the refugee convention and to address what the UNHCR has previously described as “deep concern” about the limitation of Section 31 defences.

I end by recalling that Article 31 prohibits the general imposition of penalties on refugees on account of their unlawful entry or presence in the country where they claim asylum. This protection applies to refugees who come directly from the state where they face persecution. So Amendment 203 gives effect to the JCHR recommendations that the offences in Clauses 13, 14 and 16 of the Bill, as well as the offence of illegal entry under Section 24 of the Immigration Act 1971, should be added to Section 31 of the Immigration and Asylum Act 1999, which provides a statutory defence for refugees in certain circumstances.

I am grateful to the Committee for bearing with me through this long group of amendments. I have tried to describe as briefly as I can what is in them, but I recognise that there is a lot here to consider. I hope the Minister will at least think about taking them away to look at them further between now and Report, but in any event I beg to move.

My Lords, I support almost all the amendments from the noble Lord, Lord Alton. I said to him yesterday that I thought that the committee’s work had been—I thought carefully about this word—painstaking. My name and that of my noble friend Lord German are not to a couple of the amendments because he and I had already tabled amendments on the same point when the noble Lord’s were tabled. My noble friend will pursue the point of a defence of not doing action if one was not doing so for financial gain—the same point, in effect, as the noble Lord, Lord Alton, has made. As my noble friend has said, and we are going to go on saying, the clauses in the Bill should not sweep up asylum seekers, whom one could also describe as victims of smugglers. I have Amendment 51A, which I picked up from the JCHR report, to add to the list of excepted articles in Clause 15. One of the things that people in this situation, and I am thinking of the asylum seekers now, must feel that they are losing is their dignity. The JCHR suggested adding—“At a minimum”, to use its words—hygiene products. If one is without hygiene products, that adds to one’s sense of a loss of dignity, a loss of looking after oneself as a real person with a proper place in the world, and so on. It is a matter of proportionality.

The noble Baroness is quite right. This issue was specifically raised by Mr Alex Sobel, Member of Parliament for Leeds, who encouraged us to include those words about hygiene. It was based on exactly what the noble Baroness has just said about our concern for human dignity. We talk a lot during these debates about human rights, but let us also remember human dignity.

I think one has a right to human dignity, actually. That is probably a point at which I could stop and commend the amendment.

I thank the noble Lord, Lord Alton, and the committee for the very thorough discussion they have had on the issues in the amendments. I have three points to make on what the noble Lord said. He will be pleased, I hope, that on at least one of them I am in some measure of agreement with him. I have some measure of agreement with the amendments that talk about those who have been trafficked. There is quite an important language point here on trafficking and smuggling. I make a distinction between those who have chosen to pay people smugglers to facilitate their journey across the channel and entry into the United Kingdom and those who have been forced to do so against their will. I have more sympathy for the aspect the noble Lord spoke about—where they are not party to their trafficking. I think the use of “trafficking” in this case is very important. There is a distinction, and I am more sympathetic to that. As the amendments are currently drafted, they would sweep up a number of conventions. I am just about to move on to the bit where I part company with the noble Lord. If he—or the Minister—were to come back later in the Bill with something to tighten up the protections for those who have been trafficked, that would be welcome. Where I part company with the noble Lord—there has been extensive discussion and, to be fair to the Joint Committee, it acknowledges that there are different views on this—is on Article 31 of the refugee convention. It protects refugees who come directly from the state where they face persecution. There is a very extensive discussion in the Joint Committee’s report on what coming directly means and the extent to which you are allowed a stopover—brief or not. It quotes some eminent legal views that a brief stopover—in other words, in France—does not stop people coming to the United Kingdom. But it also says that that view is not universally shared. I have to say, it is not a view I share. I think it is one of the reasons the public find this issue so troubling. I do not think the public have a problem with people who come directly from a state in which they are fleeing persecution and we give them support. I will cover two examples where I accept there were safe and legal routes. When I was a Member of Parliament, literally nobody in my former constituency had a problem with the route we created to protect those fleeing from Ukraine. Not a single person wrote to me complaining about that, because people saw that they were coming directly from a country that was at war and had been invaded. We created a route, and they supported that. Similarly, we had a scheme which enabled people, who we had a historical obligation to, fleeing the communist regime in Hong Kong to come to the United Kingdom. This is a problem because you have people in France who have come through a number—not just one—of European countries across land. They have entered the European Union in Greece and have come through a number of safe countries, spend quite a bit of time in France, then make a journey to the United Kingdom. I think a lot of people think that is not the situation envisaged by the refugee convention. They feel that that is our country being taken advantage of, which is what causes this pushback. That is what the Bill is trying to stop and there is a legitimate debate about that. It may be that we need to have a sensible international discussion about whether the 1951 convention is fit for purpose in the circumstances the noble Lord set out, where there are 120 million or so people who are refugees. They cannot all be accommodated in countries such as the United Kingdom. If we were to try to do that, we would find no support among the public and we would stop people who had a legitimate reason to be here. There is one part of the reasonable defence thing here where I think that the Government are perhaps being a little too generous. There are people who do not charge for their services who are genuinely well meaning; there are other people who fundamentally do not agree with having borders or Immigration Rules and sticking to them. The rules in the Bill are a little too generous. They do not have to be part of smuggling gangs but those organisations that are set up in France to make it easier for people to make those journeys should not be let off any culpability in this, whether or not they are charging for their services. If you know that people are making journeys that are unlawful and dangerous, and if you are helping people to do that, we should try to deter you. There is a legitimate argument about whether the Bill gets everything right, and people may argue that the penalties are too harsh or that this is not the right way in which to do it. But I think that there should be some sanctions.

17:15:00

On the topical point that the Minister mentioned, with the President of the French Republic being not so far away from us in this building—he probably is not any more, but he was—I think that the French Government find it quite irritating, when they are trying to work with the British Government on clamping down on this, that there are organisations from the United Kingdom that set themselves up in France and spend all their time trying to make it more difficult for the French Government to work with the British Government to stop people crossing the channel. I am not sure that we want to give a blanket immunity to all those people. Some of them are genuinely well-meaning humanitarians, but some of them are people who fundamentally do not agree that we should have border controls and sensible legal regimes. Yes, they do not charge for their services, but they are not actually doing good work. They are not doing work that is supported by the broad mass of the public. We may not want them swept up by these offences, but we should think about how we deter them from conducting what they do because it helps to facilitate this organised immigration crime, whether or not that is their intention.

I am afraid that I cannot support most of the noble Lord’s amendments, but the point that he makes about protecting those who are being trafficked is worthy of further consideration at later stages.

My Lords, I apologise for not being here for the first day in Committee. I was with colleagues as part of the UK delegation to the Council of Europe. Of course, I spoke at Second Reading. Sadly, after the debate on the previous group, it seems that I have to declare an interest as the former director of Liberty. It is not something that I do very often but, given some of the disparaging remarks about my former employer, I thought I had better declare that as some kind of interest. Apparently, to have worked for a cross-party or non-party human rights NGO is now an issue. I should add that in my many years working at the National Council for Civil Liberties, I worked across this House and the other place, including with some very senior Conservatives, who believed very much in fundamental rights and freedoms. I guess that was then and this, unfortunately, is now. As a preliminary point, on the previous group I was slightly flummoxed by contributions from across the Committee on the Clause 13 offence and defences. Forgive me, I have been a lawyer for only 30 years, but it is easier to prove that I was reckless in my behaviour than to prove that I had actual knowledge or suspicion. If I am right about that, I am flummoxed by every contribution from around the Committee on whether it should be knowledge and suspicion or intention and recklessness—but that was the previous group. In relation to this group, I have to commend the noble Lord, Lord Alton, and his committee and, indeed, the noble Baroness, Lady Hamwee, for amendments that square very well with—I will not call it a platitude—the caveat that the noble Lord, Lord Harper, gave to his other comments: that he does care about genuine refugees. If I am to take that as a real commitment to genuine refugees who are not abusing or playing any system but are in peril in their home country and fleeing persecution, if that is the commitment—I know it is the commitment from my noble friend the Minister—then I suggest that none of the amendments in this group contradicts the intention that we are going for the smugglers, going for the traffickers, going for the people who are making money out of people’s desperation, but not going for innocents. Of course, the nature of protecting genuine refugees is that you do not know who will turn out to be a convention refugee until you process them. That means that we have to be a little bit careful about how we go after the people who are coming before we have actually considered their case. To go back to various comments that have been made about the historic origins of the refugee convention, I just remind the Committee that this was the world’s apology for the Holocaust, and that people who fled the Nazis in the 1930s often had to do so by irregular and clandestine means. For those who need a reminder, I recommend “Julia”, the 1977 Fred Zinnemann film starring Jane Fonda and Vanessa Redgrave. It would not be a bad thing for every participant in this Committee to revisit that Oscar-winning film, perhaps over the recess, before coming back for many more hours of deliberation on this Bill. The reason that these amendments are good ones that do not undermine the intention of the Bill but actually speak, to some extent, to the slightly confusing debate on the previous group is, first, that they make it clear that we are going after the people who are monetising this desperation, perpetrating the evil trade and putting people’s lives at risk in the English Channel. The amendments put that squarely into the Bill. Secondly, they refer to the refugee convention, which I know will raise some hackles on the Benches opposite. I believe it is the Government’s intention to comply with the refugee convention as well as the European Convention on Human Rights. The European Convention on Human Rights has to be dealt with on the front cover of the Bill, as per the Human Rights Act. The Human Rights Act will also be the interpretive method for looking at the Bill, but there is not anything like that for the refugee convention. What there is instead is a tradition that was begun by a previous Conservative Government in the Asylum and Immigration Appeals Act 1993. Check the date: it was a Conservative Government, if I have my history right, who introduced the principle, initially into the Immigration Rules, that the refugee convention has primacy in the context of treating refugees, because the intention of that Government, and previous Conservative Governments, was to comply not just with the European Convention on Human Rights but with the refugee convention as well. Because we have moved towards criminalisation—not just considering claims, appeals and removals—it becomes important that the refugee convention provides a defence for various immigration offences that are subsequently created. That is why the Joint Committee on Human Rights—a wonderful institution of this Parliament—has stepped in to make sure that no prosecution or conviction under any of these offences will offend the refugee convention. I can put it no better than the noble Lord, Lord Alton, who said that we do not want to use these offences. It cannot be the Government’s intention that these offences and prosecutions are for the victims rather than the smugglers. That is the best comment I can make in support of this group. The noble Baroness, Lady Hamwee, a long-term advocate of the most vulnerable and refugees in particular, has an obvious point about feminine hygiene products. It would be strangely gendered for the Government not to consider adding that to food, et cetera, when we are talking about human dignity. I commend all these amendments to the Committee.

My Lords, I was not intending to speak, because my noble friend Lord Harper made an excellent contribution, but I cannot let the peroration of the noble Baroness go without some response. Her arguments would carry somewhat more weight had she not resisted every attempt at a pragmatic, practical approach to the protection of our borders and the safety and security of our country—the first duty of a Government—through many pieces of legislation, not least the Rwanda Act, which many of us were involved in over the past couple of years. She and other noble Lords like her have never conceded that this is an issue. They want to go forward with this canard that the Conservative Party has in government and in opposition swung to the right—

I am grateful to the noble Lord for giving way. First, I pointed out the Asylum and Immigration Appeals Act 1993, which is Conservative legislation. I could have gone on. I know that the noble Lord thinks my peroration has been too long already, but we can compare the minutes afterwards in Hansard of how long people are banging on. I was trying to point to a long and noble tradition in his party of caring about the refugee convention and trying to do what the noble Lord, Lord Harper, suggested we must do: differentiate the genuine refugees, who need to get here and be processed and considered before you can separate the wheat from the chaff. Secondly, the noble Lord should not let the fact that the messenger is unattractive to him be to the disadvantage of the amendments—try to ignore me and just consider the amendments in detail. I suggest that they do not offend his ambition of controlling borders or the ambition of the noble Lord, Lord Harper, of differentiating between perpetrators and gamers of the system and people who may well turn out to be genuine refugees. The noble Lord, Lord Harper, has made points about the public on many occasions and their warmth towards desperate Ukrainians, Hong Kongers and so on. Those people were rightly given safe and legal routes to the United Kingdom, in a way that Afghans, Sudanese people and others in equally dire straits were not. The drafters of the refugee convention always understood that that might happen and that some desperate people might have to flee by irregular routes. You do not know who is a refugee and who is not until you have considered their claim.

I do not deprecate the remarks of the noble Baroness. I find her always passionate and compelling, and she added greatly to the strength, colour and nuance of the debates we had over the last two years on the Rwanda Bill and other legislation, so I am not shooting the messenger. The noble Baroness pre-empts my comments. I was going to say that my party has had an outward-looking, internationalist, liberal approach to bringing into this country the brightest and the best. Going way back, from the Ugandan refugees who were expelled by Idi Amin, and the Asian folk from India and the Indian subcontinent, to, as the noble Baroness says, Syrians, Ukrainians and Hong Kongers, we have a very proud record of welcoming people from different cultures. However, it is important to make the point that it is not strange that nine countries in the European Union are demanding that the provisions of the European Convention on Human Rights are revisited because they are simply not working and are not equal to the geopolitical challenges alluded to by the noble Lord, Lord Alton of Liverpool, around the mass movement of people.

17:30:00

The noble Baroness fetishises the 1951 refugee convention. It was brought into being for the right reason: the world had to make amends, in a practical way, for the horror and the deaths of millions in the Second World War, particularly in the Holocaust— I understand that. Now, in the era of transnational travel, telephonic communications, the internet, advances in science and technology and transportation, and serious organised crime and people traffickers, it is not fit for purpose. It is not ignoble for us to make that point. It is incumbent on the noble Baroness to be able to, realistically and with evidence, disaggregate between those who are genuine asylum seekers, fleeing from terror, dictators, torture, imprisonment and arbitrary justice, and those who are economic migrants. The noble Baroness, and in particular the Liberal Democrats, are not willing to disaggregate in that way.

I am sorry to interrupt the noble Lord again. I want to move away from me and go back to the amendment. I suggest to the noble Lord, Lord Jackson of Peterborough, that the amendments make that distinction, because the refugee convention will be of no avail as a defence to anyone who does not turn out to be a refugee. The convention’s principles are non-penalisation, non-discrimination and non-refoulement. Whatever the other defects, the Committee ought to be able to unite around those principles.

Before I look at the specific critique of the amendments put forward, I take the comments by the noble Baroness on face value. However, I know that, when my party were in government, those on the other side, the Liberal Democrats and many Cross-Benchers took issue with age-verification tests and other attempts by the state to determine the bona fides of people with respect to their age and background, and whether they were truly subject to oppression, mistreatment, or the misuse of the criminal system in their countries. At every step, those were opposed. It has proven difficult for us to focus on those who are genuinely in need of our support, as my noble friend Lord Harper said. By the way, I support the very sensible amendment tabled by the noble Baroness, Lady Hamwee, about dignity products. Any sensible, sentient, caring, compassionate person would do so. I end my slightly odd preface to these comments by saying that we have a responsibility. We are not elected, but we should nevertheless reflect the very serious and significant concern among the public about these issues. Many people would be horrified by this otherworldly obsession with the minutiae of amendments when we have a national crisis affecting our borders and the safety and security of our country. We have a responsibility to address that.

I am sorry, but this is Committee, where we look at the minutiae of amendments. I plead with the noble Lord, Lord Jackson, to look at the amendments in this group and at my suggestion that they do not offend his ambition to control the borders and to differentiate between those gaming the system or monetising an evil trade and those victims of trafficking and potentially genuine refugees. It is not about what I have said in the past, who I am or the NGOs that the noble Lord does not like; it is about the specific amendments, because this is Committee in the House of Lords.

I am aware of that. I am merely drawing to your Lordships’ attention the fact that there will be real-world consequences from the interpretation of the legislation when it finally gets Royal Assent and becomes an Act. As has been said by my noble friend Lord Harper, there are other individual groups who have a vested interest—perhaps for the right reasons—to not consider the security and safety of our border. They are perfectly entitled to believe in there being no borders and in a very loose and liberal interpretation of immigration policy. However, we must be careful when we legislate that we do not allow those people—who are massively out of step with the views of most of the public—to put in the Bill, through advocacy, something that will not be in the long-term best interest. I cannot add anything more to the excellent points on Amendment 33 made by my noble friend. I oppose Amendments 35 and 44. Although it looks on the face of it beguilingly attractive that we should not be in breach of international treaty obligations which we have signed, my concern is that this is a moveable feast. To put in the Bill quite a prescriptive, tight and draconian interpretation of an international regime which may well change over the next few years is not appropriate. I have no doubt that the 1951 refugee convention will evolve—for the better, I hope—and that certainly the ECHR will be reviewed, as it is not only people in the UK who are concerned about it. The amendments are well meant and make a strong argument, but they would tie the hands of our own judiciary and Ministers.

I do not wish to detain the Committee now, but will the noble Lord, at some point between now and Report, at least have a conversation with me about what he thinks is draconian in these international conventions to which we are already a signatory, and which these amendments will simply ensure that we act upon in the way that is suggested in things that we are already signed up to?

I am always more than happy to have a conversation with my friend the noble Lord. However, as the Minister himself said not that long ago, the Bill in its entirety is compliant with the current legislation in respect of the Human Rights Act and the European Court of Human Rights. It would be otiose, and at the same time restrictive, to put this stand-alone amendment in the Bill. It would encourage what I have previously described as judicial activism, which we have seen in the immigration tribunal and has been featured in the Daily Telegraph quite regularly. I do not think that is helpful; it would undermine the faith and trust that people have in the criminal justice system. For that reason, I do not think the Bill should be amended in the way that the noble Lord proposes, but I am always happy to be persuaded by him.

Noble Lords will be aware that I have been concerned with immigration matters for about 25 years. I have not paid much attention to asylum because the numbers were much smaller, but they are now significantly greater. I repeat my warning that we really need to have our feet on the ground if we are going to deal with the scale of what is now in front of us. The public need to know that their concerns are understood and are being acted on. That is not yet the case and it needs to be done.

My Lords, perhaps it is possible to bring both sides together on this issue. I have a long history of being attacked for my views on this. I was the Member for Lewisham West when we brought in the east African Asians, and I remember the appalling attacks that one had for supporting Ted Heath and the Conservative Government at the time. I want to underline the long history of Conservatives being supportive of proper attitudes towards human rights and asylum. But it does not help us in this discussion if we miss out two different things. The first is that we need to support international agreements, because this is not going to get any easier. I will not bore the Committee on the question of climate change, but if anybody thinks we have real problems of immigration now, the kind of weather changes we are going to have will mean that there will be a lot more people moving not for economic reasons but because they can no longer live where they are born. We have to realise how serious the issue of immigration right across the board is going to be. One has to take this very seriously, but that means we should be very careful about protecting the rights of asylum seekers. We did not just do this because of the Holocaust, although that was the proximate pressure. There are people who are treated in a way that makes life in their countries absolutely impossible, and they cannot leave by some accepted rule or open system. They have to hide and escape, and we need to take them very seriously. The other thing we have to remember is that there is widespread concern about the number of immigrants who have come into this country and who are likely to do so. This Committee must not ignore that fact. But if we are to accept both those things, we have to be very careful that the legislation we pass is truly consonant with the international agreements we have. We also have to be extremely careful that we do not say, every time there is an amendment, that somehow there is something unsuitable behind it. These amendments are technical. I do not agree with them all, but the Committee has to accept that they are important. To dismiss them as if they were merely the product of people who always oppose any kind of restraint on immigration seems unfair and unworthy. I also happen to think that many of us opposed the Rwanda proposal because it was a load of old rubbish—because it was not going to work. That is why we opposed it, not because we did not understand the importance of the issue but because it was not the right answer. Frankly, to suggest that because we did not agree with the Rwanda concept we are somehow wet on this subject seems untrue and very unfair. We in this House are surely in the business of discussing these matters in detail and carefully. The noble Baroness, Lady Chakrabarti, and particularly the noble Lord, Lord Alton, have rightly brought to our notice some important issues that we have to get right. They may not be the right amendments, but we have to discuss them without automatically believing what the noble Lord, Lord Alton, who has a long history of defending those who are not otherwise defended, has brought to our notice. I am pleased that we have been discussing it. I think we will find that he withdraws or does not move the amendments and thinks again about which ones he wishes to press. I hope we will treat this with the seriousness it deserves, which means, first, recognising the national concern about numbers and, secondly, trying to make a proper distinction that protects people who flee from terrible regimes. I would like everybody in this Committee to think once again how blessed we are that we are not in that position. If we are blessed in that way, we should think carefully about those who are not.

My Lords, every time I speak after the noble Lord, Lord Deben, I feel as though I have taken on the headmaster. Having been admonished, I tread carefully. I have wanted to comment on this group of amendments from the beginning. The fact that the debate has become quite fractious and animated in some ways indicates what my original concerns are and why I wanted to ask the noble Lord, Lord Alton of Liverpool, in particular, to clarify something.

17:45:00

In his opening remarks, the noble Lord warned the Committee that in the enthusiasm to smash the gangs and control our borders, we must not—I am paraphrasing —emasculate our laws, such as the refugee convention of 1951. I have a different concern. I want to know whether it is possible to square this circle, because I am concerned that international agreements such as the refugee convention, which I consider to be outdated, are often used to emasculate our domestic laws and, even more appropriately in this discussion, any Government of any party’s ability to make new laws. There is a difficulty here. The refugee convention emerged in a very different period. In all the debates on any aspect of immigration or asylum that I have taken part in since I have been in this House—and as we have heard in the contributions today—I am not convinced that we would all agree on what refugee even means and what the legalistic definition is. There is complete confusion in broader society at the moment about who exactly is in the small boats.

I then have a broader question to the noble Lord, Lord Alton, and the noble Baroness, Lady Hamwee, because I worry. Can they clarify how we avoid this question whereby we have to choose between the smugglers and the victims? It is really unhelpful if we only ever see people as victims. I am going to finish in a minute, so noble Lords can come back on me. If we see people only as victims of smugglers, there is always a danger that we deny their agency, and if there is one thing that really will get on the nerves of the British public, it is the feeling that people in this House have been duped in that way. Obviously, some people are playing the system. Just because they are doing so, by the way, does not mean that they are evil. I have every sympathy with the often young men who might be trying to pull a fast one to get here—it would be better than where they were coming from—but that is not the point, unless we are going to just give out British citizenship on the basis of guile and a bit of pluck and so on, is it?

How do we deal with that? It is very important that we stop being so binary about this. The truth of the matter—to go back to my original point, and then I will finish—is that the refugee convention does not help us here, because there is a situation, a national crisis, in which undocumented people are arriving in the country. It is the day after the anniversary of 7/7. We know the potential security problems. It means that we have no control over the border and, to their credit, the Government are trying to do something about it. I might have criticisms of the Bill, but there is an attempt to say that this cannot go on. If the refugee convention, other international agreements or, basically, the burden of moral guilt are thrown upon any of us who are worried about this—as if somehow we do not care about people who are genuinely fleeing war, terror and so on, or we do not care about international law or this, that and the other—we are not going to get anywhere or solve this problem. That is a betrayal of the British public, to be honest.

My Lords, I make just one technical point. We are here to discuss whether or not these amendments are going to work if they are passed. Amendment 35, for example, deals with the defence of reasonable excuse by reference to a number of international conventions. I am a bit concerned as to how a court is going to direct a jury in respect to that. Certainly, it is arguable that they should reflect those conventions. As the amendment is currently framed, that is going to be legally very difficult. It is not normally the way these things are done. There should perhaps be some definition which embodies what is contained in those conventions, rather than simply reciting them as a list, because I do not think a court is going to find that very easy to interpret. Incidentally, I entirely agree with the noble Baroness, Lady Chakrabarti, that the insertion of the word “reckless” does not help in terms of clarity. It is one of the most difficult words in the legal context. Courts of all levels have struggled to find any clarity with the word “reckless”.

My Lords, the debate has obviously spanned beyond the amendments before us, but it is worth stating at the outset that the focus of these amendments is to determine that the provisions are aimed at the particular people who are breaking the law—the smugglers. The focus has to be that it helps law enforcement and the judiciary to focus their resources on the people that the Government really want to apprehend in order to tackle the criminal gangs. There are words—which I will come to in a moment—on which I agree a different definition might be more helpful, but it is worth while repeating the words of the noble Lord, Lord Deben, about the international regulations and rules that guide us and we put around ourselves and the importance of those. I am reluctant to go into this field of the reinterpretation of the ECHR, but one mistake relates to the fact that some countries signed an unaddressed letter which gave no indication whatever of what changes to the ECHR they were looking for. The person who was supposed to receive it read about it in the newspapers. I contrast that arrangement, where nothing could be made of the letter because it gave no sense of what was to be changed, to the approach of the British Secretary of State for Justice, who approached the matter in a proper manner and spoke to the people concerned, the right Committee of Ministers, who are responsible for any review of the ECHR. There is already a set of motions in place to enable that discussion to occur. It would be worth while trying to understand what people in other countries want to do and what they need to happen in order to change, but those discussions are under way because, essentially, this is a living document that needs to be changed, interpreted and looked at as time goes by, and that is happening at present. We should be clear that these amendments would simply treat the people who are coming here with a deal of compassion. I absolutely agree that we have to separate genuine asylum seekers from the rest. We cannot do that by our own legislation until they arrive here. There are no routes by which people can arrive here, apart from the few which would not affect the people from the countries who are most affected in this matter. What makes sense with these amendments—maybe not entirely in the words they use—is that they are trying to distinguish who we are going for and who we are gunning at, as it were. Amendment 33 seeks to ensure that the scope of the offences in Clauses 13 and 14 apply only to the smugglers. The amendments seek to link the offences to financial and material gain. If there is another way of explaining the financial and material gain as being the method by which you determine a smuggler, then obviously it would be worth noting. In that respect, I took note of what the noble Lord, Lord Harper, said about how to deal effectively with the migrants situation. Fortunately, I went to visit the site of the Jungle in Calais two weeks ago. It is now fields; there is nothing there but fields, grass and animals grazing, and that is because the French authorities dealt with groups of people to make sure that they fit with the strategy they are adopting. They had no complaints about the way that was working at the present time. Maybe times have changed, and maybe people need to be thinking differently. Amendment 35 proposes that the defence excuse in Clause 13 should ensure the protection of “refugees, smuggled persons, and victims of trafficking, in certain circumstances”— and that is the question. In mentioning “certain circumstances”, one needs to define what those circumstances are; otherwise, the courts would not be able to make the appropriate case work. Amendment 38 suggests that the scope of offence of Clause 14 should include for financial or material gain. That is the distinguishing factor between those who are smuggled and those who are not. Amendment 44 suggests that the defence excuse in Clause 14 should ensure protection of “refugees, smuggled persons, and victims of trafficking, in certain circumstances”. Again, one has to define the words “certain circumstances”, because otherwise it becomes too general. Amendment 57 suggests that the reasonable excuse defence in Clause 16 should ensure the protection of “refugees, smuggled persons, and victims of trafficking, in certain circumstances”. Again, that wording needs to be tightened up. Finally, Amendment 203 would provide “a statutory defence for refugees in certain circumstances” for the offences in Clauses 13, 14 and 16. Obviously, there is a need for tightening up in this matter to ensure that we can separate out the people for whom the Bill is intended to deal with: those who are causing the misery, those who are trafficking and those who are smuggling and those who are spread around Europe to make sure that these schemes work. These are the people whom the Bill should be aimed at and is aimed at. All these amendments would do is make sure that we entirely focus our efforts on those people who are causing these criminal acts. Therefore, I suggest that these amendments have a right sense of direction in what they intend. They enshrine the international regulations which we sit within. It is not just one convention; it is quite clear from the opening speech of the noble Lord, Lord Alton, that there are a raft of international conventions, laws and rules that we sit behind. We are part of that international way of dealing with matters, and if we lose that way of dealing with it and do not follow it through, we will never be able to solve something which is so international in its nature.

My Lords, I am grateful to all noble Lords for their speeches in this group. Again, I listened very carefully to the noble Lord, Lord Alton, and the rationale behind these amendments. The general thrust of all noble Lords’ amendments, however, is to seek to impose further limits on the exercise of legal powers designed to tackle people-smuggling gangs and their supply chains. On all these new offences, we need to be both clear and bold in providing our law enforcement agencies and our courts with the legal tools and powers they need to be robust in tackling the gangs, who are both the root cause of and the major beneficiaries from this problem. We on these Benches have rightly criticised the Government for the rhetoric around smashing the gangs—which in our view, at least at the moment, is empty rhetoric—but it is a clear fact that we need to tackle the criminal gangs, and it is right that we use this as an opportunity to shape our legislative framework so that we can do that as effectively as possible. Amendments 33 and 38 in the name of the noble Lord, Lord Alton, would add an additional demand: for the person to have committed an offence, it must be demonstrated as well that they have financially benefited from the supply of a relevant article for use in connection with an offence. Again, I understand the rationale and the intentions behind the amendment, but I put myself against it and support the current Government—again, a slightly rare position to be in. Unlike other aspects of the Bill, it seems clear to us on these Benches that, as it stands, the text of Clauses 13, 14 and 16, which create these offences, is adequate, clear and sufficient.

18:00:00

Under Clause 13, the relevant person commits an offence if they supply or offer to supply

“a relevant article to another person”,

and, at the time they do so, the person

“knows or suspects that the relevant article is to be used by any person in connection with an offence”.

We believe that someone who knows or suspects that what they are doing supports people smuggling has done enough to commit an offence. Requiring as an additional condition of the offence that a person must supply an article for financial benefit would weaken the offences in these clauses. Financial benefit is not relevant here; it is an additional, unnecessary and superfluous condition.

At a time when we need to take urgent steps to address this problem, not only in the interests of protecting our borders but to protect those who are at risk of death when crossing the channel, creating additional barriers to tackle the gangs and their suppliers does not seem to us either responsible or practical. This is a time when we need to send a clear message that if you are involved in people smuggling through the supply of articles for immigration crime, what you are doing is wrong and will not be tolerated. Therefore, with respect, we oppose these amendments.

Briefly on Amendments 35, 44 and 57, around the interpretation of “reasonable excuse”, in our view courts should interpret “reasonable excuse” in terms of the words in the Bill and using normal rules of interpretation—no more, no less. It is not necessary to expand those rules of interpretation. I was also very taken with the point made by the noble Lord, Lord Faulks, because we will open up huge complications and complexity if we are to ask judges to direct juries on how to apply “reasonable excuse” above and beyond normal rules of interpretation and with regard to international agreements.

Finally, Amendment 203 would apply Section 31 of the Immigration and Asylum Act 1999 to this set of offences. Again, I appreciate the intention behind the amendment but we are concerned about the unintended consequences this will have. It risks blurring the lines between those to whom legal protection should be afforded and the actions of those who may be exploiting the system. Someone who supplies forged documents, helps others cross borders and gathers information to assist illegal entry may be part of a criminal network, and we cannot make the assumption that they are in fact a persecuted individual seeking entry to the UK. We have to construct a legal system that does not distinguish between a refugee acting out of necessity and a facilitator hiding behind refugee status.

Furthermore, it appears to me that the original scope of Section 31 of the Immigration and Asylum Act 1999 was deliberately focused on and limited to offences such as illegal entry and document offences directly associated with refugees’ entry into the UK, but Amendment 203 expands it to cover third-party criminal conduct prior to entry. In our view, that goes beyond the original intention of that statute, which was primarily about prosecution for illegal entry and illegal presence. Offences of supplying articles for immigration crime are a very long way from that concept.

The other key distinction here is that the laws to which the noble Lord refers use “refugee” whereas the clause he cites in the Bill uses “person”—namely, a person accused of these offences. That is an important distinction, and one that I am concerned the amendment may blur.

In conclusion, the fundamental concern that we have with all the amendments in this group is about their impact on the capacity of the Government to deter crossings in the first place, and it is our view that they dilute that capacity. We need to make it more difficult for smugglers and facilitators to operate, not easier. We need to send a message that Britain is cracking down on this behaviour, not making it easier to get away with. If we want to properly engage with this issue, we need to work with our legal and judicial authorities to give them the power to tackle this challenge head on, not tie them with further restrictions, which would make addressing this grave issue even more difficult.

My Lords, I thank the noble Lord, Lord Cameron of Lochiel, for his comments. I do not think there will be very much difference between us on this, and he has made some very strong points which I may echo in my remarks to the Committee. I just want to re-emphasise three points which are important to the consideration of these amendments. First, the gangs are the targets of the Government’s action, not the people who are seeking asylum or refugee status, or even the people being trafficked without either of those two issues being the reason. The gangs are the targets. Secondly, the noble Lord, Lord Alton of Liverpool, made much reference to the Joint Committee report on the Bill, a copy of which I have for ease of understanding. I just reaffirm to him that it is the Government’s intention to respond to that report prior to Report. Some of the issues that he is bringing forward as amendments to the Bill are recommendations from the report, but we want to examine the report and give a full response to it before Report. So he will have the opportunity to examine the Government’s response prior to tabling any amendments on Report. I noted, just out of interest, that there were, I think, 12 Divisions among members of the committee during its consideration of the report on Wednesday 18 June, so there was never unanimity even within the committee on what it should say. Therefore, it is even more important that the Government examine all those concerns and reflect on the 12 Divisions that took place, as well as the unanimity in the report that was finally produced after that. It is important that I say that.

I recall that I was keen to tell the noble Lord, Lord German, that in fact paragraphs 1 to 52 had been agreed unanimously. There were Divisions in the report—I mentioned that—but the Minister will be pleased to know that the Labour members of the committee voted in favour of it to a man and woman.

I am always pleased to know what my comrades in arms in both Houses have done, and it is important that the Government reflect on all points of view. I simply make the point that there will be a response to the committee’s report prior to Report, and those nuances will be examined as part of the discussion. The third point that the Government want to put on record—I have said this in earlier discussions—is that the United Kingdom is unequivocally committed to the European Convention on Human Rights, and the measures in the Bill support that aim and are compatible with UK human rights obligations. That leads directly to the points made by the noble Baroness, Lady Fox, and the noble Lords, Lord Harper and Lord German. Those are the three important principles: gangs are the target; we will respond to the report; and we believe we are compliant.

I am grateful for the forbearance of the Minister. While he is in a pensive mood, will he confirm that there is a possibility, at least, that the Government’s current review of Article 8 of the European Convention on Human Rights, which was announced on 30 March, may well be concluded by the time that we get to Report or Royal Assent to this Bill, and would potentially feed into any further amendments that the Government brought forward?

As the noble Lord knows, the Government are reviewing the issue of Article 8, but intend to do so in a way that examines judicial discretion on Article 8 and potentially looks at how we can improve performance on that issue. It does not mean that we will be withdrawing from Article 8, or indeed from any aspect of the convention. I think it is important that consideration is given to those issues. If I may, I turn directly to the amendments before the Committee today. I start with Amendments 33 and 38, which seek to add the requirement that one can be prosecuted under these offences only if an individual derives financial or material benefit from engaging in the offence. These offences, as I said, target criminal gangs at the early planning stages, when financial or material gain is often not yet evident. For the very reasons that a number of noble Lords have mentioned, introducing the requirement in the clauses for gain would significantly constrain law enforcement’s ability to intervene early and disrupt organised crime groups before a crossing occurs or money changes hands. Given the complexity of cash flows in these criminal cases, it is impractical to exempt those without apparent financial or material gain, and doing so would shift the burden of enforcement to prove gain, undermining effective prosecution. Additional amendments to this clause do not take into account the wide range of complex agreements that might be considered when engaging in these events—for example, substantial benefits in kind for engaging in the activity—and with such amendments, people would never be guilty of an offence. Again, these are complex issues, and for the very reasons that the noble Lord, Lord Deben, and the noble Lord, Lord Green, mentioned, there will be continued pressure, and it will be continually ramped up. Even now, I can update the noble Lord, Lord German, that the President of France has made reference to the fact that we need to have international co-operation in his address to both Houses a few minutes ago, and that there will again be consideration of joint action on the criminal gangs, for the very reasons that the noble Lords, Lord Deben and Lord Green of Deddington, mentioned, because it is a nationally important issue that needs to be resolved and there will be increasing pressures. I just say to the noble Lord, Lord Alton of Liverpool, who moved the amendment, that I do not think it would be appropriate or proportionate, particularly given the life-threatening risks posed by people smuggling, for his amendments to be accepted. They would undermine the opportunity for early intervention that the offences are designed to examine and stop. Where there is evidence of involvement of organised criminal activity, where lives are endangered and where our borders are undermined, those individuals would rightly be liable for prosecution, regardless of whether financial or material gain can be demonstrated. There are going to be pressures: the noble Lord, Lord Deben, mentioned them clearly. It is an important issue—I cede that to the noble Lord, Lord Green of Deddington. In order to deal with these issues, we need to have some potential powers of criminal action, and I am grateful for the support from the noble Lord, Lord Cameron, from the Opposition Front Bench. Turning to Amendments 203, 35, 44 and 57, Amendment 203 would add the offences in Clauses 13, 14 and 16, as well as the offence of illegal entry under Section 24 of the Immigration Act 1971, to Section 31 of the Asylum and Immigration Act 1999. This section currently protects refugees from being punished for certain actions that they may have to take to reach the UK. Amendments 35, 44 and 57 would similarly make it difficult to prosecute an individual were they to engage in this crime and seek to claim refugee status. Those are the issues that the noble Lord, Lord Faulks, referred to, which are keen issues that the Committee needs to consider. I just emphasise again that these offences are targeted not at refugees but at the vile people smugglers. The amendments would provide a potential defence to individuals, even if the commission of the offence had nothing to do with conduct that was necessary to arrive in the UK. As such, an individual could be absolved from all sorts of behaviour, including engaging in offences before arriving in the UK, creating a loophole for anybody who wished to commit those offences. I reassure the Committee that care has been taken by officials in the Home Office, with ministerial support, to ensure that these offences have the flexibility to target the smuggling gangs but do not unjustly impact or endanger those who are exploited by these criminal smuggling gangs. Each clause has a non-exhaustive list of reasonable excuses, including one for those acting on behalf of an organisation that aims to assist asylum seekers and does not charge for its services, and those intending to act in the rescue of a person in danger. Indeed, Clause 15 contains a carve-out of humanitarian items that cannot be considered under Clauses 13 and 14, plus carve-outs under Clause 16 for academics, journalists, rescuers and those seeking to provide those humanitarian services that are necessary. These safeguards, when combined with investigatory discretion in prosecutions and the public interest test for charging decisions, ensure that enforcement is targeted and proportionate.

18:15:00

My noble friend Lady Chakrabarti raised some absolutely vital points, but I hope that I can reassure her on her starting point: that the gangs are the target, not the refugees, and that that is the principle behind what the Bill is bringing forward. I hope that those safeguards are sufficient to ensure that the noble Lord, Lord Alton, supported by my noble friend Lady Chakrabarti, will not press the amendments in due course given that I have given him an assurance that we will reflect on the report as a whole prior to Report.

There was one more late amendment that came in very recently: Amendment 51A, tabled by the noble Baroness, Lady Hamwee, which aims to add “hygiene products” to the list of carved-out items for the articles for use in an immigration crime offence in Clause 15. I just remind the House, as a beginning point, that this offence does not criminalise specific articles, but criminalises those who supply or handle articles with the knowledge or suspicion that the articles are for use for the purposes of relevant immigration crime, namely Sections 24 and 25 of the Immigration Act 1971.

I have had a chance to reflect on this even this morning, and I put it to the noble Baroness that the definition of “hygiene products” is potentially very wide. I think I know what she means, and I think I know why it may be important to look at that issue. For example, an underarm deodorant may be designed as an aerosol, as a hygiene product, but that could be used to start fires, create a flame thrower or spray in people’s eyes. I simply put that to her as a consideration. A razor to have a shave could be determined to be a hygiene product, but equally could cause deep lacerations or be used as a weapon. I think I know what she means, but I am simply saying that the definition—going back again to the legal test of the noble Lord, Lord Faulks—is always important. It is important to know what we are talking about when we talk about what we are talking about. Therefore, I think that there is quite a wide resolution of what the point she made could well be.

I will give way to my noble friend and then to the proposer of the amendment.

Given that my noble friend knows what the noble Baroness, Lady Hamwee, means, and given that he has parliamentary counsel at his disposal, might he consider a government amendment that adds “female sanitary hygiene products” to a list that currently includes food, drink or medical products?

I understand the point that the Minister is making. The JCHR report actually used the term “hygiene kits”, and I did not understand what those might be. They sound a little bit like the complimentary items you might get in plastic wrapping that you cannot undo in in a hotel. Would the Minister agree that we might have a discussion about this? It would require regulations to change the list of articles in Clause 15. It would be far better if we could talk about this as a sensible, non-political point and get it into the Bill.

I remind the Committee that this offence criminalises not specific articles but those who supply. I do not see a realistic scenario in which items mentioned in Amendment 51A, when used for their intended purposes, could be used in connection with an offence under Sections 24 and 25 of the Immigration Act and therefore fall within scope of this offence. However, I understand the intent of the noble Baroness’s amendment. There are legal safe- guards, and we can reflect on this and have a discussion around it. I hope she recognises that the points I have made are equally valid, and that she does not move her amendment. We can examine this issue outside of the Committee. I hope that noble Lords feel able to withdraw or not move their amendments. Once we have responded to the report, the noble Lord, Lord Alton, can return to any of these issues on Report.

My Lords, I am grateful to the Minister for his response to this long list of amendments. I apologised earlier to the Committee that, inevitably, it was going to take time to get through them all. We are agreed about one thing. The Bill is there to target those who are profiting from organised crime. There is no disagreement in the House about this. It is not a binary choice between the victims or the profiteers. The people they are exploiting need to be protected, but at present, there is a risk that the most vulnerable are caught by some of these offences. Again, we are agreed about that; how we do it is what matters. It is the role of committees such as the Joint Committee on Human Rights to scrutinise these things in detail—even issues such as hygiene kits. That came up as an amendment in the committee from one of its members, who said that the Government should at least examine this. It is on page 67 of the report, which details amendment 8, which inserts “hygiene kits” in Clause 15, thereby extending the list of included items. I am grateful to the Minister for his responses to the noble Baronesses, Lady Hamwee and Lady Chakrabarti. This issue can be looked at outside of our proceedings. I will take away the points he has made, and those of all noble Lords who have participated in this excellent debate. I will make a couple of brief remarks. The noble Lord, Lord Deben, talked a lot about the international agreements that have been entered into. Our duty is to comply with those. They are living documents, open to challenge and amendment. I agree with the noble Lord, Lord Jackson, in pressing the Government, as I have done previously, to let us know as soon as possible, before Report, what their thinking is on Article 8 of the ECHR. It was not just the ECHR that I referred to in these amendments. We also referred to the protocol against smuggling and Article 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings, published in 2005, to which we are a signatory. These are important questions that we must always benchmark our actions here against. It is not that we are caught in a trap of international agreements; we, as a nation, have entered into them, and they are obligations we must live up to. As far as the interpretation of the courts is concerned, my noble friend Lord Faulks made a very good point. Just as there needs to be further training—for instance, in lower-tier tribunals, a point we have discussed previously—it is not beyond the ability of our judges to give direction on many of these international conventions, which all of us are very familiar with anyway. Regarding Article 8, the Danish Government and others would not normally be regarded as hostile to international action. Donald Tusk was one of the signatories of the email that the noble Lord, Lord German, referred to earlier—it had no destination but caused quite a lot of controversy inside the Council of Europe and the European Court. It has provoked a debate, which was overdue, on whether that interpretation of Article 8 is correct. We all welcome that. The noble Baroness, Lady Chakrabarti, said that we should go after the people who are monetarising this issue. She is right. She is also right that we have had a fine tradition in this country. She said that it was the world’s apology for the Holocaust to introduce the European Convention. A lot of other factors were involved there, but we all know that British lawyers, British politicians and the Conservative Party leadership at that time were deeply committed to the creation of European scaffold to govern some of these questions. Times have changed, and some of the challenges are different. That is not a reason for walking away from our obligations. It is a reason for standing together with others who want to make sense of these things, so that we protect those who are at risk and ensure that we go after those who are acting in a criminal manner. I will take back to the Joint Committee the points the Minister has made. I am grateful that he will respond before Report. That will give us a chance to decide on amendments of a similar nature, or others which work in the eyes of the Government. We can continue to discuss this outside Committee, and whether it is possible to bring them back. For now, I beg leave to withdraw the amendment.

Amendment 33 withdrawn.

Amendments 34 to 37 not moved.

Clause 13 agreed.

Clause 14: Handling articles for use in immigration crime

Amendments 38 to 45 not moved.

Amendment 46

Moved by

46: Clause 14, page 8, line 21, at end insert— “(c) their action was—(i) solely as part of their own journey, and(ii) they did not gain financially from the action.”Member's explanatory statement This amendment seeks to ensure that the new criminal offence is targeted at people smugglers rather than those seeking asylum by amending the statutory defence.

My Lords, I rise to speak to Amendments 46 and 55 in my name. We are again back to this issue of ensuring that refugees, victims of modern slavery, are not unfairly prosecuted for behaviour committed due to coercion or exploitation. I am very grateful to the Minister for saying that the focus of the Bill is the smugglers. The problem is that there is no stipulation in the Bill that to be guilty, the person must be a trafficker or a smuggler. We want to ensure that refugees, victims of modern slavery, cannot be unfairly prosecuted for behaviour committed in the course of their actions. Amendment 46 seeks to set out in Clause 14 that those involved in organised immigration crime, rather than those seeking asylum, are the ones who are to be prosecuted, by strengthening the statutory defence, which we have already heard from the Minister concerns finance. I am always open to suggestions on how else you might distinguish between an asylum seeker and a smuggler, in which case one could extend the definition. The offences this Bill creates are very substantial, and rightly so. We support them. In Clause 14, on handling articles for use in immigration crime, there is a 14-year maximum prison sentence. It is the same for Clause 16, with five years’ imprisonment in Clause 18 and six years’ and five years’ imprisonment in further clauses. These are substantial periods of imprisonment, and these are substantial cases, so it is very important that nothing happens that allows people to slip through the net. Given the severity of those four sentences, it is critical that we take a very careful approach to drafting the new offences, in order to safeguard against any unintended consequences such as the criminalisation of those seeking asylum. The Bill, of course, as we now know, is widely drafted for prosecution to try to deliberately catch those acting at a distance from, as well as close to, the acts of smuggling. The broad construction of these offences as currently drafted could unintentionally catch vulnerable individuals such as asylum seekers and victims of trafficking. We have already heard the case of the young man who was forced to drive one of these very unsafe boats across the channel and was prosecuted as a result of that.

18:30:00

The Government’s intention in introducing these new offences is to target the supply chains of people-smuggling networks and to prevent risk to lives at sea posed by those connected to the facilitation of crossings. The Bill, therefore, needs to be amended to ensure that these vulnerable groups are not inadvertently criminalised and subject to long periods of incarceration. These amendments seek to target individuals involved in people smuggling, rather than those seeking protection, and to safeguard vulnerable individuals from criminalisation by amending the statutory defences to include those who did not gain financially from their actions. Therefore, that would bring the Bill closer to the Government’s aim, already stated by the Minister, of tackling the gangs and going for the smugglers.

There are two offences where this might happen. The handling offence in Clause 14 covers when someone receives a relevant item. That relevant item could include a boat or a dinghy. It is not clear what “receive” would mean and how that could impact someone who is trying to reach the UK. Does it mean they helped to carry it? Does it mean they held it in the water, or whatever? It needs to be absolutely clear. The offence covers collecting, possessing or viewing information that could be used to organise or prepare for getting to the UK irregularly. That is very broad—it could cover anything—and it is probably very important to the Government’s ambitions, because it will impact, possibly, people who get into a small boat, and that is where the need for distinction starts.

It could also cover lots of people who produce information or research for a purpose that is not to try to assist with people getting to the UK. These amendments seek to shift the emphasis of the clauses to those who profit financially from an immigration crime, and we consider that these clarifying amendments will bring the Bill, therefore, closer to the Government’s stated aim of targeting smuggling networks.

My Lords, I am grateful for the opportunity to speak to several of these amendments, tabled by my noble friend Lord Browne of Ladyton, who regrets he is unable to be here today and has asked me to speak to the amendments on his behalf. I agree very much with what the noble Lord, Lord German, just said in relation to the earlier amendment. I am also grateful to the Law Society of Scotland for some of the briefing it has provided, although I should emphasise that the amendment is not confined to Scotland: it is, of course, a UK-wide amendment. I will take the argument in summary. Speaking to an earlier amendment a few minutes ago, my noble friend said: “The gangs are the target, not the refugees”. The point, particularly of Amendment 50 is, in fact, to give effect to saying the gangs are the target and not the refugees. Amendment 50 seeks to make the legislation consistent with the spirit of the refugee convention, ensuring that vulnerable people are not debarred from refugee protection on the basis of criminal acts they have committed in order to claim asylum in the UK. Clearly, none of us accepts that traffickers have any legitimate basis at all—they are vile people. But some of the people who cross the channel as a result of their efforts—I hope we can stop these traffickers—are, in fact, refugees. If their only offence is to cross the channel by boat, we are making the vulnerable the victims, and that seems not a sensible thing to do. Elsewhere in the Bill, the Government’s approach is to concede the point, and I do not see why it should not apply in this section. If we do not amend the Bill, we will create a Kafkaesque situation in which we would remove protections on the basis of steps taken by refugees in order to seek these protections in the first place. That seems a fairly clear point, and I would have thought the Government would be willing to tidy up the Bill to achieve this particular end. I will make it clear that the refugee convention has a provision in it about particularly serious crimes, but it is designed to exclude individuals whose record of criminality rendered forfeit their claim to asylum. But that should never apply to those asylum seekers who are forced because there are no safe and legal routes to enter the country by these other means, which we have labelled in previous legislation as illegal. If we had safe and legal routes—and I do not want to get into a Second Reading debate on this—the whole system would work in a much better way. Furthermore, Amendment 56 is a limited and, I hope, constructive amendment that seeks to remove an inconsistency within Clause 16. This clause creates a defence of collecting information for use in immigration crime, but subsection (6) has a defence for anyone who does it for the purpose of a journey made only by them. The point of Amendment 56 is that if people are traveling in a family group, they will also be able to have that defence. This is a very simple point indeed, and it goes fully in the spirit of what the Minister said earlier. I repeat: gangs are the target, not the refugees.

My Lords, we have Amendments 51 and 51B in this group. Amendment 51 would add mobile phones and chargers to the list of relevant articles. The noble Lord, Lord Alton, is just leaving; he may be coming back. There are innocent examples of the use of mobile phones in the JCHR’s report. Mobile phones are very common, and we are looking for proportionality in all this. Some years ago, I quite often heard opponents of asylum seekers and refugees, who were outraged, say, “They even have mobile phones”, as if that was some sort of great luxury and that having them meant they would be perfectly capable of getting, possibly not first-class seats, but certainly seats on a plane, because they were clearly very civilised, well-equipped and moneyed. I have not actually heard that for some time. Mobile phones are not a luxury these days; they enable asylum seekers to keep in touch with their family. I think that is hugely important, not for any sinister reason but because they are a lifeline for mental health, quite apart from more practical examples. Amendment 51B speaks to the regulations which I mentioned in the last group. The Secretary of State can, by regulations, alter the list of relevant articles, and my amendment would provide for consultation with organisations that aim, without charge, to assist asylum seekers. I think that that point was made by one of those organisations in its briefings to noble Lords. After all, if there is to be a change, it is perfectly reasonable and proper that the people who know what happens on the ground—I am not suggesting that the Government do not—and who have that particular take on it should be consulted. I have signed Amendment 56, to which the noble Lord, Lord Dubs, has spoken. People travel in groups—not everybody, but some people—and it seems natural, to me anyway, that a husband would perhaps carry documents for his wife and children, or a mother would carry documents for her children. I think that it would be right to make that change.

Once again, I am grateful to noble Lords for their contributions to this group of amendments around the safeguards to the offences. As I have already said on previous groups, it is the position of His Majesty’s Opposition Benches that the new criminal offences in the Bill must be as watertight as possible. We know that people-smuggling criminal gangs are incredibly innovative in their efforts to continue running their illegal operations, concocting ever more ingenious methods to circumvent the law. We must do all we can to frustrate that. To do so, we need to ensure that there are no loopholes that could be used to evade legal repercussions. I turn to the amendments. Amendment 46, in the name of the noble Lord, Lord German, seems, to us, with respect, to be unnecessary. As the Bill stands, the person in question already has a defence if they are able to show that they were carrying out a rescue, or if “they were acting on behalf of an organisation which … aims to assist asylum-seekers, and … does not charge for its services”. In my view, if someone has broken a law, as they will have done if they are charged under this clause, without being able to avail themselves of those two specific defences, then they have committed an offence for which they should be held liable. The amendment proposes that we, in effect, waive the law if the person shows that their actions were self-relating. That is a dangerous precedent to establish—that someone acting to benefit only themselves can get away with actions that are demonstrably illegal. If someone knowingly engages in criminal activity and is unable to have recourse to the defences set out in the Bill, we need to be clear that they have committed a crime and should still be liable as a result. In our view, the amendment would blow wide open the rigour and focus of the offences as currently drafted, which is the opposite of the strong message we need to send to those who—we cannot forget—are illegally violating our borders. Amendments 50 and 62 would mean that, for the purposes of the UN Convention Relating to the Status of Refugees, any offence committed under the relevant clauses would not be regarded as a particularly serious crime. I listened to the noble Lord, Lord Dubs, explain the rationale for the amendments, and I completely understand the concern that lies behind them. I think I am right in saying that the convention talks about constituting “a danger to the community of that country”, and I completely accept that that is very strong language, but I think it is important to consider this in context. Illegal migrants enter the UK without going through any checks whatever. It can be almost impossible to find out who such migrants are, where they have come from, what their history is, and, fundamentally, what sort of people they are. Safe and legal routes are safe and legal precisely because they answer these questions. Let us not forget the incident that happened in May, when five Iranian nationals were arrested for planning what the Home Secretary described as a major terror attack. They arrived in the United Kingdom by irregular means, including small boats and a lorry, before claiming asylum. One of those people was taken out of his taxpayer-funded accommodation when he was arrested. Is it not clear that those men constituted a danger to the community of our country? We need to appreciate the risks that we run when faced with this system and with the problem that we have no idea of who those people are or the potential risk they pose. The police and security services were successful in foiling that attack, but we cannot guarantee that that would happen indefinitely. This problem obviously and demonstrably risks the safety of our national community, and we need to engage with the law in a way that reflects this. For that reason, we oppose those amendments.

18:45:00

Amendment 51, in our view, undermines the principle of Clause 15, which sets out which items are excluded from the definition of a “relevant article”. The items on that list include food, drink, medical products and bedding, and they are obviously excluded from the definition on the basis that such articles are essential to supporting life. We on these Benches struggle to understand why a mobile phone should be included on such a list when mobile phones are, quite obviously, frequently used to facilitate the crime of entering the UK illegally. It appears to us that the noble Baroness, Lady Hamwee, is seeking to apply an exclusion to an article that is absolutely not necessary for supporting life but is one of the central tools in allowing these crimes to take place. Indeed, the entire purpose of these powers is to ensure that law enforcement officers have sufficient power to tackle the gangs. To remove mobile phones from these powers of search and seizure would completely undermine them and severely hinder our ability to protect our borders.

Amendment 55 is, in our view, not necessary because the Bill already makes it clear that it is a defence for the person to show that their action or possession was for the purpose of a journey to be made by only them. If the purpose of the provision is to target people smugglers, it is unclear why the amendment would do it any more effectively than what is already set out in the Bill.

Amendment 56 risks creating a loophole in which we could see the provision, and the principle and intention behind it, abused to allow those who should be prosecuted to raise a defence. There are issues around the definition of a close family member, but, more importantly, it would create an administrative burden to facilitate this in practice. It is hard enough to identify each individual person arriving in the UK illegally, let alone establishing who is related to whom and to what degree. In the meantime, those who claimed under this amendment would be accommodated at the taxpayer’s expense—which is not, as the Government have made clear, a responsible use of taxpayer money.

Finally, and in conclusion, if we are to deter crossings and illegal entry into this country, surely we do not want to construct a legal system in which acting to facilitate crossings, even of a close family member, is somehow excusable. As we on these Benches have been clear, we need to approach this issue robustly and carve out defences for those who engage in and facilitate this. Let us not forget: criminal activity would directly undermine this capacity.

I am grateful again for the amendments that have been tabled and for the approach of His Majesty’s loyal Opposition in relation to them. Again, I think there will be many areas of agreement between the Opposition and the Government on these issues. I am grateful for the way in which the noble Lord, Lord Cameron, has responded to the debate today. I reassure noble Lords, particularly my noble friend Lord Dubs, that care has been taken to ensure that these offences have the flexibility to target the smuggling gangs and do not unjustly impact or endanger those who are exploited by them. I have said that in other groups, I may say it again in further groups, and I am saying it again in this group: that is the target for government action. Amendment 46 seeks to amend Clause 14 to ensure that individuals are not criminalised for handling items relating to their own journey, provided they did so solely for personal use and received no financial gain. I say to the noble Lord, Lord German, that Clause 14 already provides a non-exhaustive list of reasonable excuses; cases can be assessed individually; and prosecutors will consider the public interest as well as specific guidance relating to immigration crimes, including whether there is clear evidence of a credible common-law defence of duress or duress of circumstances, and whether the immigration offence was committed as a necessary part of a refugee’s journey to the United Kingdom. That will all be done before pursuing charges, with the clear intent—going back to my noble friend Lord Dubs—of targeting smugglers and not those who are exploited by them. There is a list of humanitarian items that are carved out from these provisions. Items outside this list that facilitate organised immigration crime are easily shared, taken or given to others to hold, further risking creating loopholes, as items used in organising immigration crime can easily be transferred or misrepresented as for personal use. That again goes to the very heart of the points mentioned by the noble Lord, Lord Cameron of Lochiel, which is that enforcement would be significantly more difficult if the proposed amendments were accepted. These offences are designed to enable law enforcement to act earlier and faster at the preparatory stages of an offence, potentially saving lives at sea and in the back of lorries. Therefore, I find it difficult to accept the amendment, which would hamper that objective. Amendments 46 and 55 aim to add a financial gain element to the “reasonable excuse” defence. Again, I respectfully oppose the amendments. These offences target criminal gangs at an early planning stage when financial gain is not necessarily yet evident. Introducing a requirement in the clauses for financial gain would significantly constrain law enforcement’s ability to intervene early and disrupt organised gangs before a crossing occurs and before money changes hands. Again, there is complexity in cash flows in these criminal cases, and it is impossible and impractical to exempt those without clear financial gain. Doing so would shift undue burden on to law enforcement to prove gain and would undermine effective prosecution. That would not be appropriate or proportionate, particularly given the life-threatening risks we have seen in the channel, where people smuggling is present. It would also undermine the opportunity for early intervention that the offences are designed to facilitate. Where there is evidence of involvement in organised criminal activity, such as facilitating illegal crossings, through the commission of these offences, prosecution should be possible regardless of whether financial gain can be shown. I turn to Amendment 51, tabled by the noble Baroness, Lady Hamwee. Again, I share common ground with the noble Lord, Lord Cameron of Lochiel, on these matters. Amendment 51 proposes adding phones and chargers to the list of exempt items in Clause 15. Clauses 13 and 14 do not criminalise specific items; they target the supply or handling of items with knowledge or suspicion that they will be used in immigration crime. The key issue remains intent. Everybody in the Committee today will recognise that phones are commonly used by smuggling gangs to co-ordinate crossings. Law enforcement agencies must retain the ability to act when such items are knowingly supplied for criminal purposes. A blanket exemption would create a significant loophole and weaken our ability to disrupt smuggling operations. Mobile phones are used to organise criminal gangs and therefore it is not practical or feasible to exempt them from the proposals in the Bill. I am grateful to my noble friend Lord Dubs for speaking to Amendments 50 and 62 tabled by my noble friend Lord Browne. The amendments aim to exclude the offences from being considered a “particularly serious crime” under the 1951 refugee convention. The offences would be considered as particularly serious crimes—this is an important point for my noble friend—only if the sentence reaches the 12-month threshold. A court would have to consider all the circumstances of the offence in detail. If it imposed a sentence of more than 12 months, it is right that that is treated as particularly serious. The individual can still show that they are not a danger to the community. This year alone—this goes to the heart of all the amendments—there have been 14 deaths at sea. I cannot agree that taking part in and providing means and methods for vulnerable people to risk their lives at sea in increasingly overloaded and poor-quality vessels and in the back of transit lorries should not be considered a serious crime. Amendments 50 and 62 in the name of my noble friend Lord Browne aim to exclude those offences as being considered particularly serious under the 1951 refugee convention. I reassure my noble friend that there is a minimum sentencing requirement for the offence to be categorised as a particularly serious crime. It is right that this offence be treated as a particularly serious crime if the sentence imposed by the court is of at least 12 months, as I just mentioned, as provided by Section 62 of the Nationality, Asylum and Immigration Act 2002. The court will be able to consider carefully whether the offence is appropriate when imposing such a sentence. Also, it is still open to an individual to demonstrate that they did not constitute a danger to the community for the purposes of Article 33(2), thereby retaining protection against the matter being brought before them. Amendment 56 proposes a statutory defence for those researching a journey for a close family member. Proving close family relationships is very complex and, I contend, is handled best on a case-by-case basis. Clause 16 already includes a non-exhaustive list of reasonable excuses, and each case is assessed individually. Prosecutors—this is key and we have discussed it in earlier groups—will consider the public interest before pursuing charges, with the clear intent of targeting smugglers, not those exploited by them. This is a common theme running through all my responses to the groups of amendments to date—the aim of the UK Government, in co-operation now with authorities from other nations, is to target the smugglers, not those exploited by them. Amendment 51B would require the Secretary of State to consult organisations assisting asylum seekers before making additions to the list of carved-out articles under this legislation. I know that this is a well-meaning and well-intentioned proposal, but it is not necessary or appropriate in the context of this clause. The articles for use in immigration crime offences concern the prevention of immigration crime and provide the opportunity to act quickly before lives are lost at sea and in the back of refrigerated lorries. Clause 15 provides a mechanism for the Secretary of State to designate certain items as carved out from this offence and the option for the Secretary of State to add to this list, but not to remove them without going through full parliamentary process. If we had formal consultation with external organisations before decisions could be made to add an item to the carve-out, that could introduce additional bureaucracy that would delay urgent action. As noble Lords will know, immigration crime is dynamic and moving. We have seen this weekend how that dynamic movement can take place. The methods used by those who seek to exploit vulnerable individuals are evolving rapidly and the Government must retain the ability and flexibility to respond swiftly and decisively. I assure the Committee that there will be circumstances where, timing and circumstances permitting, we will always want to engage with charitable and voluntary organisations on these changes as appropriate. However, where lives are at stake and time is of the essence, I want to ensure that the objective of saving lives is paramount. I hope I have answered the points raised by the Committee. I look forward to the noble Lord’s response but hope he will withdraw his amendment, and that noble Lords will reflect on what has been said.

I thank the Minister. I understand the ambition he is setting out: that we are going for the smugglers, not the refugees. The problem is that the Bill, as we have been discussing, does not give us that definition clearly up front. In other words, what the Minister has been saying and his intention—I absolutely agree with him—need to be clearly somewhere or other in the Bill. I must say to the noble Lord, Lord Cameron, that he read out the first part of my amendment and then skipped over the second part, which is connected.

19:00:00

The issue before us in all three of these groups has been to emphasise the methodology by which we can distinguish between the smuggler and the refugee. If we have not got it perfect yet, we have to consider how we might achieve that end. The Minister may want to reflect on how he gets his words into the Bill. I think what the Minister has been saying is what most Members in this Chamber would be looking for, especially those of us who have spoken on these three groups.

There was one thing that the Minister did not respond to. I hope he will do so, not necessarily now but in a note. The handling offence in Clause 14 covers when someone receives a relevant item. Could that include a dinghy, a boat? It is not clear what “receive” would mean and how that could impact on someone and the crime. It is the definition of what the word “receiving” in terms of a dinghy might be because, as we all know, smugglers make the people—well, they used to—carry the boats and the dinghies into the water. They do not do that now. They have taxi boats, which is a different way of operating, but they still rely on the people who are wading in the water to hold the boat so that people can get into it. That is a smaller point, and I am quite happy to receive a note on that matter. Given that there is a principle here of trying to get the Minister’s words into the Bill, at this stage I am prepared to withdraw my amendment.

Amendment 46 withdrawn.

Amendment 47

Moved by

47: Clause 14, page 8, line 21, at end insert— “(c) they were acting under the duress of slavery.”Member’s explanatory statement The amendment seeks to make provision that under the duress of slavery a person has a reasonable excuse for the purposes of subsection 3 in carrying an article.

My Lords, as I rise, I draw your Lordships’ attention to the fact that I both set up and chair the Global Commission on Modern Slavery & Human Trafficking. I wish to move Amendment 47 standing in my name, and in my remarks I would also like to address Amendment 49. As I have been listening to the debate that has taken place so far, I have to say that I think there is absolute agreement across the Committee that we want to smash the gangs and deal with the criminals who are making money out of other people’s hopes and misery. The Minister has made that very clear, and others speaking from across the Committee have supported that intention. I also noted the remarks that were made by the noble Lord, Lord German, in moving Amendment 46, in relation to the issue of modern slavery. It is on that issue that I have specifically put down Amendment 47. My concern is that in the attempt to smash the gangs, the Government may inadvertently catch up within the requirements of this Bill those who are acting not in order to make money or simply for themselves but because they have been forced to do so by their traffickers or slave drivers. They are acting under the duress of modern slavery. That is why Amendment 47 would add to Clause 14(4) proposed new paragraph (c) so that one of the reasonable excuses that somebody has for an offence under this clause is that they were acting under the duress of slavery. If I may just say so to your Lordships, it is very easy in today’s world to think that when we are dealing with aspects of border security and immigration crime, we are thinking only about small boats. That is where the focus is, and there are some elements of this Bill that are specifically related to people coming across the water from France, Belgium or Holland. But, in fact, immigration crime can be committed in a number of different ways. People can be brought across the border in a number of different ways. It may very well be that somebody who is being brought under duress of slavery, who is being trafficked into sexual exploitation, for example, may in effect be committing an immigration crime. I believe that they should have the ability to use the fact that it was under duress of slavery as a reasonable excuse for a defence. The Minister may say to me that Sections 24 and 25 of the Immigration Act 1971 talk about somebody knowingly having a document or whatever that they know is in breach of immigration law, and I would be interested if he used that as his defence for not specifying—no, the Minister is shaking his head. If we are all agreed that people who have been enslaved should not be caught up by this Bill and be charged with these offences, then I urge the Minister to accept that that needs to be specified on the face of the Bill. He has just, in response to the noble Lord, Lord German, indicated, more or less, that he does not intend to cover those people who are under duress of slavery. I say that it would be far preferable if we made that absolutely clear on the face of this Bill. Amendment 49 is of a slightly different order because it refers to the holding of items that have been picked up as a result of action under Clause 14. It is just to make sure that where a relevant article is held by the authorities, they ensure that they maintain it and protect it, so that if the individual from whom it has been taken wishes to use that relevant article as part of their case to the national referral mechanism to be considered to be subject to modern slavery, that item is protected. It is of course normal practice—as I discussed the other day with my noble friend Lord Davies of Gower, who has a police background—that police keep evidence and should protect that evidence, but I think we should be absolutely clear that such articles should be capable of being protected, and should be protected, by the authorities, so that the person who may be under duress of slavery can, if necessary, rely on that item in the case that they provide to the national referral mechanism. This is about the protection of those who are being enslaved. Fifty million people around the world are in slavery of various forms. We want to ensure that we do not aid those who wish to bring people across this border into slavery. I urge the Government to specify the under duress of slavery issue on the face of this Bill. I beg to move the amendment.

My Lords, I have put my name to these two amendments, and I declare that I am co-chair of the All-Party Parliamentary Group on Human Trafficking and Modern Slavery and vice-chair of the Human Trafficking Foundation. I agree with every word that the noble Baroness, Lady May, said. We need to remember that in these two amendments we are talking about not people traffickers but human traffickers, those who are bringing people from other countries to this country to be enslaved. As the noble Baroness said, many millions of people across the world—men, women and children, including babies—are in that very sad situation. The idea of this amendment is to recognise that the Modern Slavery Act 2015, brought into Parliament by the noble Baroness, Lady May, does not specifically deal with this. It provides a partial defence under Section 45 for those who are genuine victims of modern slavery, but that does not deal with Clause 14 of the Bill. Whatever the Minister may have thought, I would ask him to rethink whether in this modern time, when that relatively small number of people coming through either on boats or in lorries or in any other way who are pushed into this country by those who are exploiting them, it is not crucial that it is clear to anyone dealing with them that, if there is a possibility that the person may have been exploited or is coming into this country to be exploited, then the articles that they have need to be looked at in a completely different way. Indeed, under Amendment 49, the articles need specifically to be retained as potentially of value for the first part of the national referral mechanism when the person is going through that rather prolonged process. I strongly support the two amendments in the name of the noble Baroness, Lady May.

My Lords, I too am a signatory to Amendment 49. It is a great pleasure to support both amendments in the name of the noble Baroness, Lady May. In parenthesis, I should say that, in 2015, along with my noble and learned friend Lady Butler-Sloss, it was a great pleasure to support what was then ground-breaking legislation. It was a classic, textbook example of how to make good law: first, we had robust pre-legislative scrutiny; the noble Baroness, in her role as the Home Secretary of the day, along with Dame Karen Bradley, was magnificent in steering the legislation through; and we had bicameral agreement across both Houses, with amendments being made and accepted as the Bill went through both Houses. I might add that the Joint Committee on Human Rights is currently conducting a new inquiry—the Minister will be pleased to hear—into supply chain transparency and modern-day slavery, and the noble Baroness, Lady May, has been extraordinarily generous with her time and in making a wonderful written submission to the committee. I know that this will be taken into account when we come to write our report and its recommendations; 2015 is a decade ago and, as the noble Baroness has recognised, issues like Section 54 need to be looked at again. The way we use the Proceeds of Crime Act needs to be looked at in relation to modern-day slavery and human trafficking. It is another living document, something that, from time to time, we have to go back to. I believe that the whole House would want to pay tribute to the noble Baroness for the commitment that she has given to people who are victims of modern-day slavery. I referred to Dame Karen Bradley. For some time, I was a trustee of the Arise Foundation charity; I see that my noble friend Lord Hogan-Howe, who was also a trustee of Arise, is here. We became intimately involved in some of the personal cases that were raised by victims of modern slavery. With the noble Lord, Lord German, at an event that he kindly hosted a couple of weeks ago for Kalayaan—another wonderful charity that works with victims of modern slavery—we heard some heart-rending cases of people who had been trafficked but who had come through the national referral mechanism. It would be helpful for later stages of the Bill if the Minister were able to give us some updated information about the numbers of people who are in the national referral mechanism at present, and the average time that people spend in the NRM. At the event in the Attlee Room, hosted by the noble Lord, Lord German, we heard, for instance, from one woman who had been four years in the national referral mechanism. There is always work to be done, but the noble Baroness’s amendments, especially Amendment 49, are incredibly important. People who go into the NRM have to prove their justification and right to be able to stay in the United Kingdom. If they do not have access to the evidence—if it has been taken away —then it will be impossible for them to prove their case; it will undermine the victim seeking determination by the NRM. At pages 21 and 22 of the Joint Committee on Human Rights report, which I referred to at some length earlier today, the committee warns of the danger of breaching the European Convention on Action Against Trafficking in Human Beings, and points to our obligations to victims of modern slavery and human trafficking. We should never forget that victims of modern slavery and human trafficking did not come here willingly and were not migrants; they are victims of a heinous crime. The noble Baroness is right to remind us of the distinctions that we should make. On 16 April, the Minister replied to my Written Question HL6468, asking for the Government’s response to the manifesto entitled Putting Victims First: Renewing the UK Commitment to Victims of Trafficking and Modern Slavery, which was published in July last year by a coalition of modern slavery organisations. In his helpful Answer, the Minister said: “The Government continues to engage with the coalition … keeping all aspects of asylum and immigration systems under regular review including in relation to trafficking and modern slavery”. I would be grateful if the Minister could say whether they have discussed with the coalition the protection of belongings of people likely to have been trafficked and, if so, what response they received. If not, I hope that they will do so between now and Report. I hope that the Government, and the Minister, will accept the excellent amendments from the noble Baroness, Lady May.

19:15:00

My Lords, we on these Benches support the noble Baroness, who is part of the eminent quartet that has signed the amendment. I had been wondering—but it was one of those thoughts that got away—about somehow trying to get the word “voluntarily” into the Bill in respect of actions taken by people that could be offences, and the first of these amendments certainly reflects a part of that. As regards Amendment 49, I am sure that, through the briefings that we have received, there has been mention of phones—I will not try to inflame the Minister—which have not been returned by the authorities. They have been held so as to extract information, and they have somehow got lost in what I can understand must sometimes be a pretty chaotic situation. That is not relevant just for the offence but can be a hindrance to the NRM process. As the noble Baroness was speaking, something occurred to me that may or may not be relevant, but I will just float it. When, some years ago, we were debating young women who were vulnerable to being pushed into forced marriages, they were advised to hide about their person, if they could, something that would be picked up at the border, while they were going through security, which would enable them to talk to the border officials. I simply do not know, but could people who are trafficked try that same sort of trick or device to attract attention when they would be among people who do want attention at the border? I throw that in as a thought. I do not know whether it would be covered by “acting under the duress of slavery”, but I express it anyway since it has come into my mind.

My Lords, first of all, I want to congratulate the noble Baroness, Lady May, for getting legislation about modern slavery on to the statute books. I want to say thank you very much, because we have people—some from my own country—coming here under that very disheartening reality. The second thing I want to mention is what the noble Baroness did with the Hillsborough inquiry. She resolved a lot of pain for a lot of people in Liverpool, so I wanted to say thank you for that. The question I want to ask is this. Under Amendment 47, the line of defence would be that they were “acting under the duress of slavery”. What about a member of one of these criminal gangs that are bringing people over? They could easily say as their defence, “I was under duress when I did what I have done”. What would be the response to such a line of defence?

My Lords, the amendments in this group, tabled by my noble friend Lady May, raise some interesting questions that I hope the Government will be able to address. Modern slavery is of course an extremely serious issue. As the recent report from the Global Commission on Modern Slavery and Human Trafficking—which is most ably chaired by my noble friend—made clear, the effect that this brutal trade can have on the people involved is truly harrowing. It is right that the Government take this opportunity to outline how they will incorporate protections for those who are acting under duress of slavery into the immigration system. I welcome my noble friend’s amendment in so far as it provides the Government with an opportunity to address this important issue. However, I want to raise a cautious concern about one particular aspect of the amendment, which is that the protection would apply only once someone’s status as having acted under the duress of slavery had been established. I understand that determining this status would involve going through the national referral mechanism, which, as noble Lords across the Committee will be well aware, faces severe backlogs. Not only that but, as the UN themselves has highlighted, far fewer foreign applicants under the NRM actually have a decision made in their favour, suggesting that immigrants are increasingly applying to the NRM on the basis that this will delay any decision to remove them, rather than because they have genuine grounds for a claim. That raises the question of whether the amendment would risk creating another loophole and another incentive for those crossing in small boats to delay any decision on their application in the full knowledge that the NRM mechanism already is severely delayed and backlogged. It is the duty of the Government to seek to protect those who are under duress of slavery. As I have said, the amendment might risk creating a considerable loophole that could be easily exploited by bad actors. That is not to say that I do not support the intent behind the amendment, but I will be paying close attention to what the Minister has to say on this point. On Amendment 49, we agree that this is an important provision and that it makes complete sense to be assured that articles will be both protected and kept in a condition that will allow them to be used and referred to in any future case. As my noble friend has already alluded to, my understanding is that the Police and Criminal Evidence Act powers will already cover this, and that if any seized articles were lost or damaged then that would perhaps be a disciplinary matter for the officer involved. We therefore question whether a protection in the Bill in the form of this amendment is necessary, but the point that my noble friend raises is an important one. We will join her in seeking strong assurances from the Minister that these articles will be protected and kept in a condition that will allow them to be used in the future.

I am grateful to the noble Baroness, Lady May of Maidenhead, for tabling these amendments and instigating this discussion. I am grateful for the efforts that she took as Home Secretary, all those years ago, to establish the first Modern Slavery Act, following the very good process that the noble Lord, Lord Alton of Liverpool, mentioned. As I recall, having been the shadow at the time, that process had Frank Field, among others, chairing cross-party pre-legislative scrutiny efforts, which led to the legislation—the Act whose implementation my right honourable friend the current Home Secretary and I, as Members of Parliament, shadowed at the time. It is one thing to pass an Act—we have all done that many times in this House and other Houses—but it is quite another to retain what I sense is a lifelong interest and passion for the issue. I say to the noble Baroness, 10 years on, that it is a tribute to her commitment at the time that she continues to do that. I also pay tribute to the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Randall, in his absence, and the noble Lord, Lord Alton. All four have now formed a sort of coalition—I think we will call them the quartet after the earlier intervention by colleagues—that is taking a real interest in the development of this issue. I was pleased to address, on behalf of the Government, a reception in the House of Lords a couple of weeks ago at which the noble Baroness, Lady May, appeared virtually to look at the next stages of tackling this issue. Having said all that, I hope I can reassure the noble Baroness that the amendments she has tabled today are covered by existing legislation. I am willing to be tested on that, but I hope I can give her that reassurance. She raised these issues at Second Reading and I hoped I had given her such reassurances then. Amendment 47 seeks to provide a reasonable excuse for articles for use in immigration crime for those who are acting under duress of slavery, a point made by the noble and learned Baroness, Lady Butler-Sloss, and the noble and right reverend Lord, Lord Sentamu. I put it to the noble Baroness and the other noble Lords that the protections she is seeking are covered by Section 45 of the very Modern Slavery Act 2015 that was legislated for at that time. Going back to the point mentioned by the noble and right reverend Lord, Lord Sentamu, Section 45 provides a statutory defence against prosecution where an individual was compelled to commit an offence as a result of their exploitation. That is very clear in the Modern Slavery Act, which—this is my view and that of my legal advisers in the Home Office, and I hope it has been echoed again today—can be interpreted to mean that, in the event of trafficking from modern slavery, all of the provisions of the Bill can be dealt with by that statutory defence. We can debate that, but I hope it will eventually satisfy the noble Baroness’s noble intention in bringing forward the amendment today.

The trouble with the Modern Slavery Act 2015 is that it is 10 years old, and some of it is not as well regarded as it might be. I recently attended an interesting discussion with the Minister in the other place, Jess Phillips, about updating the Modern Slavery Act so that people recognise that it is actually effective. The Minister will know that the Government are putting into the Crime and Policing Bill a child exploitation clause. Technically, that is covered in the Modern Slavery Act, but they are putting that provision in there because the Act is not being properly regarded. This issue is something else that is not being properly regarded. Although technically it is in Section 45, to which I referred earlier, I am sure the Minister knows that Section 45 is not used in the courts as often as it ought to be, and that is a very practical reason for putting it into the Bill. If the Minister’s Government are prepared to put child exploitation into the Crime and Policing Bill, why can they not put another similar matter into this one?

The noble and learned Baroness makes an important point. I know that she, along with the noble Lord, Lord Randall, and my noble friend Lady O’Grady, met Jess Phillips last week. I hoped to join that meeting but parliamentary demands meant that I had to answer on an issue in this House, which meant I could not attend. I know that the committee of this House that produced the modern slavery report has raised a number of suggestions for updating and improving the Modern Slavery Act. My honourable friend Jess Phillips, who has direct responsibility for this issue in her position in the House of Commons as a Minister in the Home Office, is examining all the issues that were brought forward and wishes to make some improvements. The points in the Crime and Policing Bill, which will come before this House at some point, extend aspects of the modern slavery legislation regarding child exploitation. Again, I give the noble and learned Baroness the reassurance that the assessment of our legal teams, and my assessment with Jess, as the Minister, and with other Ministers dealing with the Bill from all aspects of Parliament, concludes that the protections sought are covered by Section 45 of the Modern Slavery Act 2015. We can test that and we can reflect on it outside the Chamber, and the noble and learned Baroness and others can put points to us in response to what I have said, but that is the judgment that we have made.

19:30:00

Amendment 49, tabled by the noble Baroness, Lady May, seeks to protect items confiscated during the course of an investigation into the supplying or handling of items for use in immigration crime. We can have a debate about what those items are, but the Bill, in effect, refers to items recovered in the course of the investigation of the offence we are discussing. That would largely be boats, motors and items used by gangs for immigration crime.

There is a large carve-out in the Bill for items relevant to this offence, including but not limited to—we discussed this earlier—clothing, medication, safety-at-sea equipment and food items. Those items, if confiscated, would be unlikely to be relevant to modern slavery claims or the national referral mechanism decision, but would still be documented by those who seize them and used as part of the investigation into criminal smuggling gangs as a whole. Those items are likely to be disposed of.

However, many individuals entering the national referral mechanism are vulnerable persons who have been subject to traumatic experiences, and I reassure the noble Baroness that, if an item in an investigation was of personal interest and removing it for a prolonged period could have a negative impact on that individual, it would not be in their best interest for the personal item to be retained for longer than required for an investigation. Equally, if documentation is found on a person during a crossing—this goes to the heart of the noble Baroness’s concerns—it is typically removed, photocopied and stored safely. It would be returned to the individual, as it should be, by the appropriate authorities. Where it can be done, we return items to vulnerable people as soon as practical, for the very reasons the noble Baroness has given—for development of their approach through the national referral mechanism and any subsequent claims.

In short, we anticipate that items relevant to the national referral mechanism will rarely, if ever, be confiscated during the course of an investigation into an offence. It would require significant time, funds and resources to gather and store each item, with little, if any, benefit to a potential victim of modern slavery. I hope those assurances help the noble Baroness. The points she made are both valid. Her own legislation—dare I say it—is perhaps standing the test of time better than Members believe it is. It is providing support and recognition for individuals.

I hope that, with those assurances, the noble Baroness—

Before the noble Lord sits down, he will remember that I asked him some questions about the national referral mechanism. I do not expect an answer now, but will he agree to write to me about that?

I was just coming to the noble Lord’s question in my denouement. As I was saying to the noble Baroness, I hope she can reflect on the assurances I have given and withdraw her amendment. If she is not happy, she can return to these issues, but I hope she will reflect upon them. I say to the noble Lord, Lord Alton of Liverpool, that I do not have the figures he requested to hand. I can undoubtedly find a person who does have them and get them to him in short order. I will do it before we finish Committee. With that, I hope the noble Baroness, Lady May, will withdraw her amendment.

My Lords, I express my gratitude to the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Alton, and, in his absence, to my noble friend Lord Randall of Uxbridge, not just for supporting these amendments but for the many years of commitment they have given to tackling modern slavery and supporting the victims and survivors of modern slavery. I am also particularly grateful to the noble and learned Baroness, Lady Butler-Sloss, for bringing her legal mind to bear to the interpretation and use of Section 45 of the Modern Slavery Act 2015. The Minister was very kind in saying that that Act stood the test of time rather better than some think. It has in large measure stood the test of time, but there are aspects of it, certainly around prosecutions, that are perhaps not being used as well as they might be. Supply chains are also an area we need action on.

I remember moving amendments on supply chains during the passage of the original Bill; I think we had a friendly discussion on those at the time.

I am very conscious that the supply chain issue has been around for some time. I put it to the Minister that, at the time, what was put into the Act was going to receive sufficient support across government to enable us to have something on supply chains in the Act. If he reads the report of the Global Commission on Modern Slavery and Human Trafficking, he will see that we are urging mandating action on supply chains, which he may be pleased to support. I would like to address a number the of points raised by noble Lords. The noble Baroness, Lady Hamwee, asked about somebody being trafficked across the border having some sort of sign that enables them to start a conversation. One of the challenges is that, very often, people do not realise they are being trafficked into exploitation. They believe they are being brought across to a good job, and then they find they are in exploitation when they get here. They are unlikely to do that or want to do that. My noble friend Lord Davies of Gower mentioned the speed of the NRM. That is indeed an issue. I know the Government have put some extra resources into it, but it is a deep concern that a process that was originally intended when introduced to last 45 days can now take 300 to 500 days, which is the period normally quoted, although I think somebody referred earlier to someone being in the NRM for four years. We need to get that down because people deserve to have decisions rather quicker than that. I recognise that that is an issue. The Minister spoke about what was being held. He referred to documents but, again, we must realise that this is not just about small boats. There are a number of ways people will be trafficked illegally into this country and into exploitation and slavery. My attempt is to cover all these aspects. I am grateful to the noble and right reverend Lord, Lord Sentamu, for his kind remarks. There are issues around this question, and we are balancing the need and desire to do something for the victims of slavery against avoiding encouraging others. Of course, through the NRM there is a process for assessing if someone genuinely has been enslaved and trafficked into exploitation. That should, if the process works well, weed out criminal gang members who claim such modern slavery. That addresses the loophole point that my noble friend Lord Davies of Gower raised. It is very tempting to say, as has been said to me by some colleagues, that all of this just creates loopholes. But I say to noble Lords that if we are genuinely concerned that slavery exists in our world today, in 2025, and that people are being brought into our country into slavery—that they are being trafficked by criminal gangs which make money out of their expectations, hopes and misery when they face exploitation and slavery—and if we feel that that is wrong, we should do something about it. We draw our legislation up carefully so that we do our best not to create loopholes. But we cannot simply say that we abandon those in slavery, or those who are being exploited, because we are worried about a loophole. Having said that, I heard what the Minister said about other pieces of legislation. I will go away and reflect on those, and I beg leave to withdraw my amendment.

Amendment 47 withdrawn.

Amendments 48 to 50 not moved.

Clause 14 agreed.

Clause 15: Sections 13 and 14: meaning of “relevant article”

Amendments 51 to 51B not moved.

Clause 15 agreed.

Clause 16: Collecting information for use in immigration crime

Amendments 52 to 58 not moved.

House resumed. Committee to begin again not before 8.20 pm.