Priti Patel’s plan to criminalise refugees crossing the English Channel is in danger after the House of Lords rejected the proposed law for a second time.
In a rare move, peers voted again to remove the offence of arriving in the UK – including British waters – without permission from the Nationality and Borders Bill.
It was one of 12 defeats suffered by the government on Monday night, when peers including the former lord chief justice warned that the plans violate the Refugee Convention.
The House of Lords moved to ensure any move to offshore asylum seekers was subject to approval of both houses of parliament, and that the government must give a costs breakdown.
It also backed measures to prevent the prosecution of people rescuing migrants at sea, while taking steps to prevent asylum seekers being treated differently based on how they enter the UK.
In addition, peers renewed their demand that asylum seekers be allowed to work if no decision had been taken on their claim after six months, as well as enable unaccompanied child asylum seekers in Europe to join family in the UK.
They backed measures to guarantee extended support for confirmed victims of modern slavery or trafficking, and inserted a clause to ensure that unlawful citizenship deprivations can be reversed.
The votes mean that Lords amendments will go back to MPs for a second time, having been rejected earlier this year.
If the “ping-pong” process continues without either house giving way before the current parliamentary session ends, there is a risk of the bill falling.
Official procedure states that argument usually “does not go beyond the stage” already reached by the Nationality and Borders Bill.
“A situation where one house insists on its amendment after the other house has insisted on its disagreement to it is described as ‘double insistence’,” says Erskine May, the guide to parliamentary practice and procedure. “A bill is normally lost.”
The House of Lords has already insisted twice on amendments, and MPs will have a second chance to either agree them or send back changes that peers will agree to.
There is no binding rule to how many times a bill can go back and forth, and Erskine May states that “if there is a desire to save a bill, some variation in the proceedings may be devised”.
Several peers acknowledged the unusual situation during Monday night’s debate.
Moving a successful motion to ensure the law complies with the Refugee Convention, Labour peer Baroness Chakrabarti said: “I take the primacy of the other place [Commons] very seriously.”
But she said the amendment was necessary as an “insurance policy”, as the UN Refugee Agency (UNHCR) has said the proposals violate the convention and the government denies it.
“It offers protection as of right, not dependent on executive largesse to pick and choose which refugees should be saved and which continent or conflict these should be escaping from,” she added.
Liberal Democrat peer Lord Paddick said that “double insisting on the removal of the provisions from the bill would have serious consequences”.
Lord Judge, the former lord chief justice, said that although the government insists its plans comply with international law, “a number of us take the view that these provisions do not so comply”.
“We respectfully suggest that the Commons should be asked to think again and reflect on the consequences if the advice that it is receiving is wrong and the advice that we are suggesting is right,” he added.
Lord Brown, a former Supreme Court judge, said: “I truly believe, as do many others, that several of these provisions flagrantly breach our obligations as interpreted by the UNHCR, the body responsible for that under the convention.”
Conservative peer Lord Cormack, who was previously a Tory MP for 40 years, said he had watched the progress of the bill with “increasing disappointment and sadness”.
“I became increasingly convinced that this largely unnecessary bill is narrow and mean-minded and at times approaches the vindictive,” he added, saying that the proposals were in danger of “breaching international law and also international humanity”.
Lord Cormack said MPs had treated the House of Lords “with disdain” by dismissing carefully argued amendments, and that there was “no proper scrutiny” in the Commons.
He added: “We are talking about some of the most persecuted and endangered of humanity, who are not motivated by legislation when they catch the train or drive their car or get into boats, but are motivated by a desire to enjoy a freer and better way of life.”
Lord Kerr, a crossbench peer, said the government had not evidenced its claims that the laws would deter dangerous journeys to the UK.
“We all know that the way to stop tragedy in the Channel is to open a safe route,” he added.
“I think the concern across the country about the way that the government are treating the victims of Putin’s war in Ukraine shows that we are more in tune with the national mood than the Home Office.”
Baroness Williams, a Home Office minister, had argued for the House of Lords to drop its amendments.
“We want to do everything we can to deter people from making dangerous and, sadly, as we have seen, often fatal journeys,” she said.
“That is why we want to change the law to provide prosecutors with additional flexibility when someone has ‘arrived in’ but not technically ‘entered’ the UK.”
The law would widen the current offence of illegal entry, which cannot be committed by migrants who are rescued at sea or aim to claim asylum immediately in port, to mean it can be applied to that group.
It comes after at least a dozen prosecutions were quashed and the exposure of an unlawful Home Office blanket phone seizure policy for boat migrants.
Lady Williams said the government was “seeking prosecutions only in the most egregious cases”, such as when migrants have put others at risk or caused channel disruption.
