My Lords, as the noble Baroness, Lady Lister, said, echoed by the noble Baroness, Lady Bennett, Clause 2 is the centrepiece of the scheme provided for in the Bill. At its heart, the Bill seeks to change the existing legal framework so that those who arrive in the UK illegally can be detained and then promptly removed, either to their home country or to a safe third country.
Clause 2 seeks to achieve this by placing a legal duty on the Secretary of State to remove those who come to the UK illegally. The duty applies where an individual meets the four conditions set out in Clause 2, which I will briefly rehearse.
The first condition is about the lawfulness of the person’s entry into the UK. This underlines the Government’s commitment to take all possible measures to stop people making dangerous journeys to enter the UK illegally, particularly across the English Channel.
The second condition is that the individual must have entered the UK on or after 7 March—the day of the Bill’s introduction in the House of Commons, as my noble friend Lady Lawlor noted. This is a crucial condition that will ensure that we do not create a perverse incentive for migrants to take illegal and dangerous journeys in an attempt to avoid being subject to the Bill’s provisions. I will return to this point in a moment.
The third condition states that the duty will apply to an individual who has not come directly from a country in which their life and liberty were threatened. That means that anyone entering the UK from another country where their life was not in danger will fall within the scope of the duty. This is consistent with our obligations under the refugee convention and upholds the principle that asylum seekers should claim asylum in the first safe country they reach. There is
manifestly no need for people to make those dangerous journeys when they are already in a country where they are safe or could, in the case of France, for example, claim asylum. It places themselves and others at risk and puts money into the hands of organised criminals.
The fourth and final condition is that an individual requires leave to remain but does not have it. The duty to make arrangements for removal is subject only to very limited exceptions signposted in Clause 2(11), which we will come on to at a later date when we come to a later clause.
The fundamental point is that, subject to these limited exceptions, the Home Secretary will be under a clear and unambiguous legal duty to make arrangements for the removal of persons from the UK who satisfy those four conditions. She should not be deflected from fulfilling that legal duty. These provisions make it very clear that if you meet these four conditions you will not be able to make a new life in the UK.
A number of the amendments in this group relate to the four conditions I have described. Amendment 6 tabled by the noble Lord, Lord Carlile, relates to the second condition. In effect, this and other amendments tabled by the noble Lord seek to do away with the backdating of the duty to remove so that it applies only to those who illegally enter the country from the date of commencement rather than from 7 March. Amendment 39 in the name of the noble and learned Lord, Lord Hope of Craighead, deals with the same point.
The explanatory note to the noble and learned Lord’s Amendment 39 sums up the position well, as was noted by the noble Lord, Lord Kerr. It says:
“This amendment seeks to give effect to the principle that, unless for good reason, legislation should operate prospectively and not retrospectively”.
I was challenged by the noble and learned Lord to explain what that good reason was. The Government entirely agree with the explanatory note from the noble and learned Lord, Lord Hope. The Committee will know that it is not uncommon in exceptional circumstances for legislation to have retrospective effect, as the noble Baroness, Lady Chakrabarti, noted. But as the noble and learned Lord has acknowledged, there must be good reason for such exceptions. I suggest to the Committee that there is good reason in this instance for retrospection.
I would say that the retrospective nature of these provisions is critical. Without it, we risk organised criminals and people smugglers seeking to exploit this with an increase in the number of illegal arrivals ahead of commencement of the provisions in the Bill. This would likely lead to an increase in these unnecessary and dangerous small boat crossings and could even place more pressure on not only our asylum system, but our health, housing, educational and welfare services, not to mention our services for saving lives at sea.