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Illegal Immigration Bill: ECHR Compatibility

Volume 730: debated on Thursday 30 March 2023

1. What recent discussions she has had with the Secretary of State for the Home Department on the compatibility of the Illegal Migration Bill with the UK's obligations under the European convention on human rights. (904392)

2. What discussions she has had with Cabinet colleagues on the compatibility of the Illegal Migration Bill with the Council of Europe convention on action against trafficking in human beings. (904393)

5. What discussions she has had with Cabinet colleagues on the compatibility of the Illegal Migration Bill with the convention relating to the status of refugees. (904398)

With your permission, Madam Deputy Speaker, I will answer questions 1, 2 and 5 together. By convention, where the law officers have been asked to provide advice, the contents of any such advice is not disclosed outside Government. That protects our ability as legal advisers to give the Government full and frank legal advice.

I somehow suspected that the answer would be something like that. The Attorney General knows that I am one of her admirers, and long have been so, right back to the days of her maiden speech, when I remind the House she said:

“The European convention on human rights is a masterful document, and we must remain a signatory to it...In this country, the courts are unable to quash an Act of Parliament. It seems we need to re-state that, while our courts should have regard to the decisions of the ECHR, these are on the same footing, and Parliament is sovereign.”—[Official Report, 25 June 2015; Vol. 597, c. 1113.]

Will she confirm that that thinking still informs her assessment of these questions? If she can, I think the rest of us can join up the dots for ourselves.

Well, Madam Deputy Speaker, I assure the right hon. Gentleman that the admiration is entirely mutual. I also assure him that I heard very recently the Prime Minister, from this Dispatch Box, assure the House that it is the Government’s policy to remain a signatory to the ECHR.

Articles 12 and 13 of the trafficking convention require states to support a trafficking victim’s physical, psychological and social recovery, including through a rest and recovery period, but clauses 22 and onwards of her Government’s awful Illegal Migration Bill expressly deny trafficking and slavery victims access to such support. I too have a lot of respect for the Attorney General, but she will lose support and respect if she continues to allow that Bill to proceed in blatant breach of the trafficking convention.

As I have said, all lawyers have a duty of confidentiality to their clients and I am simply not permitted to tell the hon. Gentleman, or indeed anybody else, what legal advice has been shared between our office and that of the Government. The use of the Human Rights Act 1998 section 19(1)(b) statement does not mean that the Bill breaches the ECHR. It just means that the Home Secretary cannot state that the Bill is more likely than not compatible with convention rights. If legal challenges are made, we will take all steps to defend our position in court.

Can the Attorney General clarify what assessment she has made of the legality of the amendments to the Illegal Migration Bill that are aimed at sidestepping the convention relating to the status of refugees, as well as ignoring the rulings of the European Court of Human Rights? If those amendments were to be accepted by the UK Government, what does she think it would mean? Does she think it could put the UK’s place on the Council of Europe at risk?

As I have said, I am not able to share my assessment, but perhaps it might be useful for the House to know when a section 19(1)(b) statement has previously been used. It was used in relation to the Communications Act 2003 by Tessa Jowell, who used words very similar to mine just now:

“That does not mean that we believe the Bill to be incompatible…and we would mount a robust defence if it were legally challenged.”—[Official Report, 8 December 2002; Vol. 395, c. 789.]

It was challenged. It was challenged all the way up to the ECHR, and I understand that in the end the Government won by nine votes to eight.

I have no doubt, and nor has anyone in this House, about the Attorney General’s commitment or that of Conservative Members to the European convention on human rights. Beyond the fact that the section 19(1)(b) statement, while unusual, is not unique, does she agree that it is also important to remember that our whole case law system depends on existing legal precedent being tested from time to time in the light of changing and emerging factual circumstances to which case law or existing statute can be applied? The testing of the legal position is not any kind of illegality or impropriety at all.

I agree wholeheartedly. I feel it is perfectly proper for lawyers—Government lawyers, in this case—to test a novel idea before the courts. In fact, one reason I very much enjoyed my career in the Government Legal Service is that Government lawyers frequently do so. It is one of the main reasons why people ought to apply to join.

Thank goodness I am not a lawyer! We have an excellent Minister, who has spent the whole of this question not answering it. Three questions on the Order Paper, about three completely different conventions, have been grouped together; I have no idea why. It seems to me that what we want is the Minister to answer the question.

May I try a question on the Council of Europe convention on action against trafficking in human beings? It is clear that people who come across in boats are smuggled. That is not part of the convention, but people who are already here who are forced into prostitution or slave labour should be protected by that convention. Will the Attorney General tell us—please answer!—whether the Illegal Migration Bill will be amended so that those people are still protected? A yes or no will do.

My hon. Friend is a staunch defender of the procedures and the propriety of our activities in this House. I know that he will agree that it is important that the Law Officers convention is upheld. As I have said, I cannot share my advice with this House; I would very much like to do so, but I am unable to. For the Government’s position, I refer the House to the explanatory notes that accompany the Illegal Migration Bill.

Last month, the Attorney General told the Justice Committee:

“It is particularly important that they”—

Government lawyers—

“work to keep the Government acting properly and within the rule of law”.

The House of Lords Constitution Committee found in January that the Government had

“twice knowingly introduced legislation in Parliament which would…undermine the rule of law: the United Kingdom Internal Market Bill and the Northern Ireland Protocol Bill.”

This Illegal Migration Bill, even before the Attorney General’s own Back Benchers are finished with it, is a further example of that. When will her

“first duty…as an officer of the court”—

those are her words—trump her loyalty to a lawbreaking Government?

My first duty is to the court and to the rule of law. I have absolutely no hesitation about restating that as often as the hon. Gentleman wishes me to; it is something that I believe very deeply, and I know that the Solicitor General agrees. Our advice on the Illegal Migration Bill is not something that we are able to share with the House. The use of the section 19(1)(b) statement is, as I have explained, unusual, but not unprecedented and certainly not improper.

It is no secret that the Attorney General has reservations about the Illegal Migration Bill, and it is also no secret that those on the far right of her party are intent on rebelling to push the Bill further into breaking international law. Will she do the honourable thing today, and confirm that if the Prime Minister concedes on this, she will make a stand and declare the Bill unlawful?

I am very pleased that the Illegal Migration Bill passed its Committee stage in the House without amendment.