Border Security, Asylum and Immigration Bill

Committee (2nd Day)

Clause 13: Supplying articles for use in immigration crime

Amendment 31

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 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.

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.