Committee (1st Day)
Relevant documents: 34th Report from the Delegated Powers Committee, 16th Report from the Constitution Committee
Clause 1: Introduction
1: Clause 1, page 1, line 7, at end insert—
“(za) defines “illegal” and “unlawful” migration for the purpose of this Act;”Member’s explanatory statement
This amendment, and another to Clause 2 in the name of Lord Hope of Craighead, seek, in the interests of legal certainty, to provide a definition of what amounts to illegal migration at the outset of this Bill.
My Lords, I will speak to Amendments 1, 3 and 5. It is a privilege to open the Committee stage of this important Bill. Before I come to the amendments themselves, there is one thing I wish to point out. Nothing that I may say in support of my important but relatively minor amendments is intended to undermine, or detract in any way from, the much more important and fundamental points raised by the other amendments in this group, in particular Amendments 2 and 4. I seek to reassure those in whose names those amendments stand. I am seeking to draw the Government’s attention to points raised by the Constitution Committee, of which I am a member, in its examination of the Bill.
Nobody can predict what shape the Bill will be in once it reaches its Third Reading, so it is as well for your Lordships to put all the cards on the table in Committee. Some will be more important than others, but one has to grasp the opportunity to put them on the table now. That is all that lies behind these amendments, and I hope that will be understood.
Amendments 1 and 5 deal with the use of words and the need for a definition. In its Short Title, the Bill refers to what it calls illegal migration, and so do the Explanatory Notes in their overview of the Bill on page 3:
“The purpose of the Bill is to create a scheme whereby anyone arriving illegally in the United Kingdom … will be promptly removed to their home country or to a safe third country to have any asylum claim processed. The Bill will build on the Nationality and Borders Act 2022 … as part of a wider strategy to tackle illegal migration”.
It says that the purpose of the Bill, among other things, is to
“deter illegal entry into the UK”.
But when it comes to the Bill itself, the language changes. The purpose of the Bill, it says, is
“to prevent and deter unlawful migration”.
The question is: does this mean the same thing as illegal migration?
The committee noted on page 1 of its report that the Bill does not define “illegal” anywhere. On the other hand, the Secretary of State’s duty to remove a person is triggered when the four conditions in Clause 2 are met. This suggests that the right way to define the expression “unlawful” for the purposes of this Bill, and what “illegal” migration for this purpose means as well, is to refer to these four conditions, which is what my Amendment 5 does. The fact is that Bills come and go, and expressions of this kind can be and are defined in different ways. Indeed, the words are interchangeable, as the language of the Explanatory Notes and the Bill itself has demonstrated.
The purpose of Amendment 5 is to make it clear that, whatever might be said in any other Bill or in any other circumstances, all one needs to know as to what makes a migration unlawful or illegal in the case of this Bill is what is in Clause 2. This is all about legal certainty and the accuracy and use of the words, which is an important constitutional principle. That is why the committee has made this important point.
Before I move Amendment 1, I will also speak to Amendment 3 in my name. It would require the Secretary of State to provide guidance as to how the provisions of the Bill are to be read and given effect. This follows another recommendation by the Constitution Committee in its report on the Bill, which was prompted by what we see in Clause 1(3) and (5). Clause 1(3) says that,
“so far as it is possible to do so … this Act must be read and given effect so as to achieve the purpose mentioned in subsection (1)”.
There is an echo here, which all lawyers will recognise, of the wording of the direction about interpretation given to the courts by Section 3 of the Human Rights Act 1998, but Clause 1(5) says that Section 3 of that Act
“does not apply in relation to provision made”
by the Bill. As the committee said, these are novel provisions and it is difficult to predict how they will be interpreted by the courts.
The Bill has been accompanied by a statement that the Minister is unable to say that the provisions of the Bill
“are compatible with the Convention rights”.
However, the Government’s ECHR memorandum on the Bill appears to be more confident that the clauses it identifies as engaging with convention rights, taken one by one,
“are capable of being applied compatibly”
with the relevant ECHR articles. As for Clause 1(5), all that the memorandum says about it is that the disapplication of Section 3 of the Human Rights Act
“does not affect the Government’s assessment of compatibility of the Bill with the Convention rights as set out”
in the memorandum. The Constitution Committee says that the Government’s position on this “requires further explanation”. I am sure that will be explored much further in the other amendments in this group.
The fact is that the potential impact of Clause 1(5), which is a major incursion into the rights guaranteed by the convention, has not been adequately addressed. It seems that the persons affected by the Bill, many of whom are extremely vulnerable to government action that undermines or deprives some of their convention rights, are being sent into a desperate kind of no man’s land where they cannot have any access to the courts of this country for a ruling on what their rights are. The Government are reserving to themselves the right to say what is and is not compatible, which until now has been the province of the courts. That is a serious change in our situation.
Recourse to the European Court in Strasbourg, which remains, is such a remote remedy in most cases that it would be no help to these disadvantaged people. The committee therefore recommends that the Bill should be amended to require the Government
“to provide for guidance, subject to parliamentary scrutiny”—
which is crucial to this point—
“on how the Bill is to be implemented compatibly with Convention rights”.
That is what Amendment 1 seeks to do. I beg to move.
My Lords, with some trepidation, I want to comment on Amendments 1 and 5, tabled by my noble and learned friend Lord Hope. Under the refugee convention, anyone approved as a refugee has never been an illegal or unlawful immigrant, however they came to the UK. To define anyone as an illegal immigrant who may subsequently be deemed a refugee surely flies in the face of the refugee convention—or that is how I read it. I am sure that my noble and learned friend has a very good riposte to what I am saying, but if by any chance he does not feel he has, he may want not to press those two amendments.
My Lords, in fact, the noble Baroness makes my point. What I am really saying is that those who are affected by the Bill want to know what it means by “unlawful”. We may not agree with it, but the Bill has a formula which is to be used and we need to know what it is. That is the purpose of a definition. I absolutely understand what the noble Baroness says about the convention, but it is about the need to understand the Bill’s use of the word “unlawful”.
My Lords, I would like to speak to Amendment 2, which is in my name and those of my noble friend Lord Paddick, the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Coaker. I will take just a little while. We had only six minutes at Second Reading and this group is key to the whole Bill. My remarks will follow on almost seamlessly, if I may say so, from those of the noble and learned Lord, Lord Hope.
No, I referred to Amendment 2, which is the second one in this group.
Before I move to human rights issues, I want to make a couple of preliminary points. First, it is incumbent on this Committee to subject this Bill to very detailed scrutiny. It proposes to strip human rights protections from a group of people excluded from the democratic process. It is a core part of our justification, as an unelected revising second Chamber, that we do this kind of detailed scrutiny.
In the other place, there was quite a compressed timetable—that is an understatement. Second Reading there was expedited, only a few days after the Bill’s introduction. Instead of the usual detailed consideration and evidence-gathering in Committee, the Bill had only two days on the Floor of the House, during which its provisions were considered out of sequence. On Report, the Government published more than 100 amendments at late notice, dealing with both substantive and highly technical issues, many of major constitutional importance. Particularly in the case of this Bill, it behoves us to carry out intense scrutiny.
My second preliminary point was made in a briefing from the Law Society. It stressed the importance of the UK’s reputation for its commitment to the rule of law and international obligations, including human rights obligations, to our attractiveness as a place to do business. It says:
“Senior representatives of the UK’s biggest law firms have told us they are concerned about the damage non-compliance”
with our legal commitments
“could do to the UK’s economic competitiveness, by undermining the confidence of businesses looking to invest in the UK”.
I think we recently saw a reported drop in UK inward direct investment, and Germany has shot up the list. It is not just for us human rights nerds that international legal commitments are important. Global business places great importance on these issues too.
This is a perilous moment for human rights protections in Europe, as the war on Ukraine by Russia continues and Russia has been expelled from the Council of Europe. The UK’s reputation is strengthened by being not only a founding party to the European Convention on Human Rights but an active, leading member of the Council of Europe. It was therefore good news that the Prime Minister went to the recent Council of Europe summit of Heads of State and Government.
Now is precisely the moment for the UK to lead on the world stage in reinforcing basic human rights norms and international law, including the ECHR. Pushing this Bill through this Chamber when the Government cannot confirm that in their view, multiple provisions in it are compatible with the European Convention on Human Rights, threatens our reputation as a country that upholds international law.
As has been noted by the noble and learned Lord, Lord Hope, the Home Secretary has been unable to make a statement under Section 19(1)(a) of the Human Rights Act that the Bill is compatible with convention rights. This is an extremely unusual step, and it means there is a high risk that the Bill will violate rights under the ECHR. Then, we have a bit of snakes and ladders. We have the Section 19(1)(b) statement, but in a Home Office Oral Statement delivered in the Commons on 29 March—which the Minister repeated here—entitled “Illegal Migration Update”, the Minister for Immigration said:
“Of course, as we reform the asylum system, we will continue to honour our country-specific and global safe and legal commitments.” —[Official Report, Commons, 29/3/23; col. 1017.]
In his letter to us on 27 April, the Minister said:
“As the Minister made clear in the House of Commons, the Government takes our international treaty obligations incredibly seriously”.
We have the statement with the Bill, but when the Home Secretary introduced the Bill, she expressed confidence that it was compatible with international law, as the Minister’s statements have said. However, her justification for being unable to make a statement of compatibility with the convention was that the Government’s approach was “robust and novel”. We are getting considerably mixed messages: on the one hand, the Government cannot confirm that the Bill is compatible; on the other, there are statements from the Home Secretary that she is “confident” and certain that the Bill’s measures are compatible.
How she can have that stated confidence—when she had to make a Section 19(1)(b) statement that she cannot confirm that it is compatible—is a mystery. We have a juxtaposition of different measures. If the Government cannot confirm that the provisions are compatible with the ECHR, it threatens our reputation as a country that upholds international law. I am sorry that I have taken a bit of time on this amendment, but it seems crucial to the whole passage of the Bill through the House.
Finally, I turn specifically to Amendment 2. As the noble and learned Lord, Lord Hope, mentioned, it would remove Clause 1(5) of the Bill, which disapplies Section 3 of the Human Rights Act 1998. I remind noble colleagues that Section 3 places a duty on a judiciary to interpret, so far as it is possible to do so, all legislation
“in a way which is compatible with the … rights”
under the ECHR, which are incorporated into domestic law through the HRA. The effect of the provision in the Illegal Migration Bill is that judges will be unable to reconcile its provisions with our human rights obligations under the HRA and the ECHR. The only option available to the courts would be to issue a declaration of incompatibility under Section 4 of the HRA. However, that merely flags incompatibility to the Executive. The court cannot do anything about it; it just has to flag it, which puts the ball back to the Government to have responsibility to initiate measures to rectify the incompatibility.
The possible likely outcome of all this is that these cases will go to the Strasbourg court. Given that the UK court has already found that there is a violation, because it had to issue a declaration of incompatibility, it is likely that Strasbourg will find a violation, thereby putting the UK on a collision course with the European Court of Human Rights. It would be a serious breach of international law if the UK refused to comply with a binding judgment issued by the Strasbourg court.
All in all, I put it to the Committee that the Government have got themselves in quite a mess with the HRA and the ECHR. Removing the scope of Section 3 of the Human Rights Act suggests that the Government are in fact worried about the provisions of this Bill being incompatible with our international law obligations under the ECHR. Otherwise, what would there be to worry about? If the Home Secretary is “confident” et cetera, leave it to the courts to interpret the Bill’s compatibility with convention rights. If human rights compliance is truly sought by this Government, why is it necessary to oust the duty to do nothing more than interpret the Bill in accordance with the Human Rights Act—if the Bill’s wording can provide for that?
Removing this provision, Clause 1(5), from the Bill, as Amendment 2 requests, would go some way to resolving anxieties about the impact of the ministerial statement under Section 19 of the HRA, whereas retaining the application of Section 3 would help to uphold the UK’s reputation as a jurisdiction which upholds the rule of law and respect for human rights. That is what I suggest should happen.
If I may—so that I do not have to get up again— I shall speak to Amendment 148 in the same group, in which my noble friend Lord Paddick joins me. Similarly with other amendments, including that from the noble and learned Lord, Lord Hope, it would require that the provisions of the Bill do not come into force until a month after the Secretary of State has issued a statement that in their view the provisions are compatible with the convention rights and so on.
I conclude by saying that all this goes to our international reputation for complying with human rights law and will, indeed, be helpful to our attraction for global business.
My Lords, I shall speak to Amendment 4 in this group, in my name and those of the noble Lords, Lord Paddick and Lord Kirkhope of Harrogate, and the noble and learned Lord, Lord Etherton. I have also added my name to Amendment 2 in the name of the noble Baroness, Lady Ludford, and I have some thoughts on Amendments 1, 3 and 5 in the name of the noble and learned Lord, Lord Hope of Craighead. Amendment 84, in the name of the noble Lord, Lord Alton of Liverpool, is partly duplicative of mine, but focuses specifically on international anti-trafficking provisions. In as far as it adds the EU anti-trafficking directive to the Council of Europe Convention on Action against Trafficking in Human Beings, I support it; however, I think we should settle on a single, holistic list of obligations that, crucially, includes the precious refugee convention and its principles of non-penalisation, non-discrimination and non-refoulement, which the Government seem so intent on violating by this obscenity of a Bill.
I turn briefly to the amendments in the name of the noble and learned Lord, Lord Hope. I thank him for his explanation earlier. Contrary to the explanatory statement for Amendment 1, I cannot quite agree that this does anything for so-called legal certainty. To the contrary, it seems a rather circular amendment, in defining “illegal migration” according to the conditions for removal in the Government’s own Clause 2. As the noble Baroness, Lady Meacher, suggested in her very pithy intervention, as a matter of international law, someone who qualifies for protection under the 1951 convention can never have been illegal.
Noble Lords who have come to the Committee sensibly armed with copies of the Bill might care to compare its Short and Long Titles. It has become quite fashionable in recent years for Short Titles to become creatures of political spin, but parliamentary counsel guard the Long Titles—so crucial for scope, for example —rather more jealously. While the Short Title is the Illegal Migration Bill, and our graveyard humour alights on the adjective accurately describing the second noun, the Long Title refers instead to
“persons who have entered or arrived in breach of immigration control”.
As the refugee convention was effectively the world’s apology for the Holocaust and the insufficient and inconsistent protection given to those attempting to escape the Nazis, the convention always contemplated some genuine refugees having to escape persecution and enter places of safety by clandestine means and in breach of ordinary controls.
That is why
“in breach of immigration control”
is accurate and appropriate for the Long Title and “Illegal Migration” is not appropriate in the context of refugees, who, as a matter of declaratory law, will always have been refugees, even before they were given their status—hence the excellent point made by the noble Baroness, Lady Meacher.
The probing Amendment 3 from the noble and learned Lord, Lord Hope, helps to draw attention to contradictions in the Government’s public positions around the ECHR compatibility of the Bill. As the noble Baroness, Lady Ludford, pointed out, the Section 19(1)(b) statement on the tin indicates one thing—that no statement that the Bill is compatible can be made—but aspects of the ECHR memorandum of ingredients suggest another. However, the medicine prescribed by the noble and learned Lord and the noble Lord, Lord Anderson of Ipswich, is far too weak a remedy. When a Government are so intent on violating rights to protection from torture, slavery and death, allowing the same Government to issue guidance on interpreting their offending legislation is like handing burglars the keys to the house. Therefore, the noble Baroness, Lady Ludford, is right to seek to remove Clause 1(5), which seeks to disapply Section 3 of the Human Rights Act, which, as we have heard, requires that legislation be interpreted compatibly with the European convention so far as possible. That is why I added my name to her Amendment 2.
Amendment 4 in the names of the quartet of the noble Lords, Lord Paddick and Lord Kirkhope of Harrogate, the noble and learned Lord, Lord Etherton, and myself goes further. It does not just remove subsection (5); it replaces the whole of Clause 1 with the requirement that this legislation shall not require violation of any of the key international legal obligations that we fear would otherwise be violated by it, namely the 1950 European Convention on Human Rights, the 1951 UN refugee convention, the 1961 UN Convention on the Reduction of Statelessness, the 1989 UN Convention on the Rights of the Child and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings. I am very proud to stand with noble Lords from four corners of the Committee whose experience includes high-level legal adjudication, law enforcement, and Home Office ministerial duty. What brings the senior judge, police officer, Conservative former Immigration Minister, and human rights lawyer together around the amendment is our desire that the United Kingdom remains committed to the international rule of law.
As we heard, last week, alongside other European leaders, the Prime Minister signed the Reykjavík declaration. It begins:
“We, Heads of State and Government, have gathered in Reykjavík on 16 and 17 May 2023 to stand united against Russia’s war of aggression against Ukraine and to give further priority and direction to the Council of Europe’s work … We reaffirm our deep and abiding commitment to the European Convention on Human Rights and the European Court of Human Rights (ECHR) as the ultimate guarantors of human rights across our continent, alongside our domestic democratic and judicial systems. We reaffirm our primary obligation under the Convention to secure to everyone within our jurisdiction the rights and freedoms defined in the Convention in accordance with the principle of subsidiarity, as well as our unconditional obligation to abide by the final judgments of the European Court of Human Rights in any case to which we are Parties”.
Mr Sunak said:
“We remain a proud European nation. And we must work together to defend the values we all hold so dear … Because we know what we can achieve together. Just look at this Council’s extraordinary legacy: protecting human rights, abolishing the death penalty in Europe, supporting media freedom and championing democracy across Central and Eastern Europe after the Cold War”.
Those fine words from the Prime Minister must not be contradicted by the Home Secretary’s illegal Bill.
Noble Lords will no doubt explore the many violations of our common and constitutional law tradition, as well as international law, via the anxious scrutiny of this Committee. At the very least, the Bill violates Articles 2, 3, 4 and 14 of the European convention in failing to protect victims of torture and trafficking and those at risk of death, and in allowing the Government to pick and choose which refugees from different countries it finds palatable from time to time. The Bill fails to protect stateless people and children in the context of its provisions on removal, detention, accommodation and age assessment. In the words of the UN High Commissioner for Refugees, it amounts to
“an asylum ban—extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how genuine and compelling their claim may be”.
This must be one of the strongest condemnations of a democratic and rights-respecting nation ever uttered by the commissioner.
If Ministers seek to argue that the Bill does not violate these various linchpin treaties, many of which the United Kingdom played a leading role in negotiating, they should have no problem with the requirement that the Bill be read in that way by Ministers, officials and the courts. If, instead, Ministers wish to argue that it is time to renegotiate these obligations, fair enough. Let them try to do so with such reserves of soft power as they think we have left. In the meantime, in contrast with Russia and other pariah states, let them respect the law.
My Lords, it is a pleasure to follow the noble Baroness. I support her Amendment 4 for the following reason. If I was a person in a country far from here who faced torture and very serious discrimination, possibly for his or her political views or opposition to the Government, or possibly for their sexual orientation which is an issue in quite a number of these cases, I might look up what the United Kingdom stands for in international law before I make my decision as to whether to seek asylum in the United Kingdom or some other country. And what would I read? With a couple of clicks on the internet, I would read exactly what is set out, or aspired to, in Amendment 4 tabled by the noble Baroness. In my view, that is the principled position to take.
I also understand completely—I think—the views expressed by my noble and learned friend Lord Hope when, if I can be permitted to use a little bit of transatlantic language, he pointed out certain uncertainties about the Bill in the speech with which he opened the first debate.
I want to challenge the Minister to do something he has failed to do—I say this with respect, because he is known for his clarity in this House. I challenge him to return to the very first page of the whole Bill, where the statement under Section 19(1)(b) of the Human Rights Act is set out. The first sentence reads:
“I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes … to proceed with the Bill”.
Does that mean, “I don’t know if the provisions of the Bill are compatible with the European Convention on Human Rights”? Does it mean, “I know that it is not compatible with the European Convention on Human Rights”? Or does it mean that some parts of it are compatible with the European Convention on Human Rights and others are not?
This is an extremely important Bill. I say to the Minister that he owes it to your Lordships to explain to us exactly the meaning of that statement. He is a good lawyer, so he should be able to do that. He should also list before this Committee—so that we can consider that list as we debate the rest of this part of the Bill—which clauses, in his view, fall within the European Convention on Human Rights, which do not and, in the spirit in which we debate things in your Lordships’ House, which ones he does not know about. It is only when we understand that statement properly that, in my view, we can have an educated debate about this part of the Bill.
My Lords, I have only a very brief intervention to make, but I want to speak to Amendment 4. I have two questions for the Minister which I think require serious clarification. First, do the Government accept that the Bill, if enacted, should be implemented in such a way as to comply with the convention rights that are itemised in Amendment 4? We are entitled to know what the thinking of the Government is. Do they intend that the Bill, if enacted, complies with convention rights?
The second question is contrariwise and actually is a suspicion. What is the purpose of the purpose test set out in Clause 1(2)? My suspicion is that the purpose test is designed to displace the convention rights if they come up against the Bill, if enacted. In other words, is the purpose test designed to override convention rights? I think this House is entitled to a very direct answer on both those questions.
For myself, let me make this absolutely plain to the Government. If Amendment 4 is put to a vote at any stage, I shall vote for it, because I believe that this Government and this country should comply with convention rights. If the purpose test is designed to override convention rights, I shall vote against it if given the chance.
I am sorry, my Lords. I want to indicate that I think all of us in this Chamber wish, as the Government put it, to stop the boats. We all want to stop the suffering of people who are coming to this country in a particular manner at the moment. I am sure those of us proposing amendments all have that very much in our minds.
I support Amendment 4, which bears my name and others, and very much support what the noble Baroness, Lady Chakrabarti, said about it. I refer to my entry in the register of interests as a lawyer and a former Immigration Minister, and I have real concerns about any legislation that appears to threaten the important laws or agreements in place and signed in international forums by this country. I know that there are those who take a divided view between domestic law and international law. There are those who regard treaties, international agreements and conventions which bear the signature of the UK as being less important, and inconvenient when the Government and others promote domestic policies. However, if the Government wish to either disregard or, worse, discard, these obligations, I find that fundamentally unacceptable, and I hope that my noble friend, at least, as a fellow lawyer, would agree.
The Home Secretary has stated that there would be no problem in pursuing her new ideas. Apparently, she stated that she had consulted and secured the support of “the finest legal minds in the country”. As my noble friend knows, I asked at Second Reading whether he would list these minds, in case I wished to pursue some briefing or instruction, but I failed to get an answer to that, so he now has a further opportunity to let us know who the Home Secretary was referring to. The eminent lawyers I have consulted seem fairly confident, as was said by the noble Baroness, Lady Chakrabarti, that no asylum seeker can per se be described as illegal, and this worries me intensely.
At the Reykjavík summit last week, which was referred to earlier, a declaration was signed by all the participating states, including us, which stated great support for the international conventions. It said:
“We recall the increasing challenges of migration and the necessity to fight against trafficking and smuggling of migrants”.
I am sure we all agree with that.
“We commit to intensifying efforts to foster and improve international co-operation in this regard, while continuing to protect the victims and respect the human rights of migrants and refugees, as well as supporting frontline States, within the existing Council of Europe frameworks”.
I could not agree more—and, as I said, it was signed by the United Kingdom. It called for
“building a European legal community of shared values”.
That is something we should all agree with too.
It also referred to the Venice commission, which was referred to by my honourable friend the Member for Henley, John Howell, while this matter was before the other place. It is a legal body that is equipped to deal with interpretation of concerns over conventions, and the rule of law checklist is an inherent function of that body. That reference is important, in my opinion. As has been mentioned, our Prime Minister was very clear in his remarks at the end of that meeting. He was talking about how and why it was so important that our work with our friends on the continent went on to support the
“values of freedom, democracy and the rule of law”.
So I am confident—in fact, I am sure—that my noble friend will not only accept the amendment but will embrace the opportunity it provides to restate this country’s important position in the rule of law and our international relations. Those principles are so important.
I finish my remarks by pointing out that the amendment exemplifies our nation’s traditional unwavering dedication to upholding international law and being part of the development of international law. That is terribly important. By supporting the amendment, we reiterate our commitment to fairness, compassion and the respect for human rights, while remaining cognisant of the complexities and sensitivities surrounding the issue, of which we are all aware. By upholding these principles, we also strengthen our global standing, and that is surely something we ought to embrace ourselves. Whether or not the Minister embraces some of the things we are suggesting, I want to embrace that situation for our country.
My Lords, I apologise to the noble Lord, Lord Kirkhope. It was an excess of enthusiasm in coming in after the noble Viscount, Lord Hailsham, and actually agreeing with him on something. I agree with the noble Lord, Lord Kirkhope, as well.
At first glance, this looks like an illegal Bill; it certainly looks as if it violates international law and suspends the Human Rights Act. Before I came into the Chamber today, I took some legal advice from a very fine legal mind—apparently a very sought-after Silk—and I was assured that the Bill is not unconstitutional or illegal. I would like to take another opinion on that because, quite honestly, I do not believe it. Even if it is legal—which I do not accept—it violates so many principles that you have to ask: how can we not be ashamed to let a Bill like this go through? It is all very well talking about legalities, but there are also such things as embarrassment and humiliation, particularly on the world stage. I think that is what the Bill offers, as other noble Lords have said.
What we are seeing, not just in this Bill but in other Bills, is the removal of our rights—all sorts of rights: parliamentary rights but also human rights in wider society. We have to be very careful about that. We, in many ways, are seen as the last bastion of humanity and respectability out there. People constantly say to me now, “We really thought the House of Lords was a complete waste of time, but we’ve changed our minds”. It is because we have been fighting this Government and trying to say to them that this is wrong. I think we have to say that this Bill is wrong.
The Government have tried to make us focus on other people. They have othered a lot of people: migrants, trade unions, even nurses, and of course protesters. They are trying to make us think we are providing solutions with a Bill like this, but we are not. We are not stopping the boats. We are not solving any problems with this Bill; we are creating more problems. I support all the amendments in this group. Amendment 3 is too cautious and I would like to see it strengthened, but Amendment 4 is very clear and strong.
My Lords, I support Amendments 4 and 84; I also have a great deal of sympathy for Amendment 148. I declare an interest as vice-chair of the independent Commission on the Integration of Refugees. I have been listening with great interest to the expert points raised by particularly the noble Baroness, Lady Chakrabarti, but also other noble Lords.
I am sure noble Lords will be aware that Clause 1, as it stands, is a narrative introduction that sets the scope and intent of the Bill as a whole. Crucially, it defines the purpose of the Bill as
“to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes”.
I am sure we can all sympathise with the desire to make the migration system thoroughly orderly and predictable in nature, but I question whether this is plausible and whether what it entails is indeed desirable, particularly if it cannot guarantee compatibility with those international treaties, as we have heard. The sort of circumstances of catastrophe and persecution that drive refugees do not tend to allow for orderly or safe departures. I know this from my own personal experience but also from having spoken to many asylum seekers and refugees over the years.
The Government deserve credit for the design and delivery of the Homes for Ukraine scheme. My diocese has been delighted to welcome more than 50 Ukrainian guests into our scheme and to hear many incredible stories of welcome and community building. However, we should not forget the huge amount of effort and time that went into getting that scheme off the ground. It was not swift, and to be delivered at all it required an enormous redistribution of Civil Service and local authority capacity, to say nothing of the vast civil society contribution that needed to be harnessed. It is an incredibly labour-intensive model in its administration, neither sufficiently swift nor flexible to account for sudden or immediate crises, of which we are bound to see many more.
Refugees fleeing crisis, persecution and conflict do not have the time for the UK to develop a bespoke model—assuming that such a model would ever exist. The great majority of those in need who seek to come to the UK do not have a safe or regular route available to them. I deliberately say “regular” rather than “legal” because I want to underline what we have already heard said very clearly: according to the refugee convention, there is no such thing as an illegal route. This is a really important point that needs to be underlined and repeated. Anyone arriving at a country by any means has the right to claim asylum. This point has been well made by the noble Baronesses, Lady Meacher and Lady Chakrabarti, and the noble Lord, Lord Kirkhope. The shorthand of “safe and legal”, which has become all too common, is misleading and leads to scaremongering. We should be much more careful about our use of language.
The Government’s answer seems to be that every refugee must stop in the first safe country. This sounds very easy in principle and is what the majority of the world’s refugees do, but safety is a relative concept. For example, for Christian converts in Iran facing terrible persecution, who have no safe or regular routes to this country, which neighbouring state would noble Lords recommend as a safe and secure place in which to rebuild their lives with the freedom to practise their religion, as is their human right?
Proximity is no guarantor of true safety. In the UK, there are many Iranian Christians who have settled and rebuilt their lives. There is an established community, and many have friends or family members here who can help and support them. In my work with the Commission on the Integration of Refugees, I have heard repeatedly of the importance of family, friendship, community and historical ties, and of activities and structures to help refugees integrate better. This is what safety means to people who have lost all those things in their home countries. They are not “asylum shopping”, to use the offensive and disparaging term used by the Immigration Minister. Rather, they are choosing to come as directly as they can to the place where they feel they will be safest.
This is why Amendments 4 and 84 are so important. They look to establish a guarantee to abide by the international treaties to which we as a nation have already committed, as we heard said so articulately by the noble Baroness, Lady Chakrabarti. These treaties exist not to frustrate orderly migration policies but to establish a baseline of protection and commitment that is shared across nations. They are designed for individuals for whom the normal, orderly means of migration are not possible but who urgently require humanitarian assistance. They create proper structure for people to depart and to claim status in a place where they will be safe.
These amendments are a commitment to the vulnerable and a commitment on the part of states to be held accountable for their actions towards the vulnerable. If the Government cannot commit to that accountability, I cannot accept that the stated purpose of Clause 1 is either appropriate or desirable.
My Lords, I speak in support of Amendment 4 and draw attention to my entry in the register, with regard to support from RAMP for this and later amendments.
It is vital that, in line with our international obligations, we uphold the human rights of men, women and children who seek asylum in the UK. It is worth remembering what Theresa May—no softy when it comes to immigration matters—said in the Commons:
“That matters because of the reputation of the UK on the world stage, and because the UK’s ability to play a role internationally is based on our reputation—not because we are British, but because of what we stand for and what we do”.—[Official Report, Commons, 13/3/23; col. 592.]
Related to this is a warning from the Council of Europe Commissioner for Human Rights in her letter to the Lord Speaker that the Bill, as summarised in Clause 1, would
“provide an incentive to other states, in Europe and beyond, to follow the UK’s lead in evading and abdicating its responsibilities to people in need of protection”.
Given that much of the Bill is justified with reference to incentives, one hopes that this warning might resonate with Ministers. If other countries follow suit, we could well find that we have more, not fewer, asylum seekers trying to cross our borders.
Of the conventions listed, I will focus just on those relating to refugees and children, although I also draw attention to the concerns raised by Redress, which warns that the Bill threatens to cause the UK to violate key provisions of the UN convention against torture. I will not repeat the highly damaging verdict of the UNHCR, other than to note, as did my noble friend, the unprecedented strength of its criticism, reflected in the stark warning that the Bill amounts to an “asylum ban” in contravention of the refugee convention. Every briefing that we have received, including from the EHRC and the Law Society, echoes these concerns about the refugee convention. Indeed, the UN special rapporteur on the human rights of migrants, and other UN rapporteurs, have urged the Government to halt the Bill’s passage so as to bring it
“in line with international human rights standards”.
However, according to the Home Secretary, such claims are “simply fatuous”. She put forward two arguments in the Commons to justify her position. The first is that while the
“convention obliges parties to provide protection to those seeking refuge. It does not require that this protection be in the UK”.
However, the UNHCR explains that, under the Bill, the Home Secretary
“will not be required to assess whether removal”
to a supposedly safe country
“would be safe or reasonable for a particular individual or whether they will be able to claim asylum there. Individuals would have very limited opportunities to present evidence of the risks they would face”.
Thus, it warns that the removal duty placed on the Home Secretary
“creates real and foreseeable risks of refoulement”.
This is echoed by the UN rapporteurs. The proposed responsibility-sharing arrangements lack the required safeguards to protect the rights of asylum seekers and refugees.
Secondly, the Home Secretary prayed in aid Article 31 of the convention which, she argued,
“is clear that individuals may be removed if they do not come ‘directly’ from the territory where their freedom is threatened. Denying those arriving illegally from France, or any other safe country”
is, she concluded,
“therefore, entirely consistent with the spirit and letter of the convention”.—[Official Report, Commons, 13/3/23; col. 580.]
However, the UNHCR is clear that it is not consistent. Its legal observations on the Bill are explicit:
“Mere transit in an intermediate country cannot be considered to interrupt ‘coming directly’”.
As the EHRC points out, because of geography, “direct” routes to the UK are rarely available. Exploiting our geographical position to abdicate responsibility for asylum seekers shames us as a country. I therefore repeat the question that I asked at Second Reading: can the Minister explain why we should accept the Government’s interpretation of the refugee convention over that of the body with supervisory responsibility for it? That body was recently described by another Lords Minister as “a key partner”.
The UNHCR also warns that
“The Bill is inconsistent with the UK's obligations under the UN Convention on the Rights of the Child … because of the many ways it threatens or undermines the safety and welfare of children”.
I will not go into detail here, because a number of amendments specific to children will follow, but it is worth noting now that, in the view of UNICEF, which is mandated by the UN General Assembly to uphold the UNCRC and promote the rights and well-being of every child, children should be removed from the scope of the Bill in order to uphold the Government’s
“duties to act in the best interests of the child”
as set out in the UNCRC. Similarly, the Children’s Commissioner, who has demonstrated a passionate concern about the Bill’s implications for children, has warned that it
“would place the UK in clear breach of its international law obligations under a range of children’s rights treaties”.
The equality impact assessment, which finally appeared on the morning of Second Reading, assures us that
“the Home Office will continue to comply”
with the duty under Section 55 of the Borders, Citizenship and Immigration Act 2009
“to have regard to the interests of children as a primary factor in immigration decisions affecting them”.
As UNICEF reminds us, this duty was enacted in order to implement the UNCRC “best interest” requirement. Yet, the equality impact assessment tries to wriggle out of the duty by arguing that:
“The duty does not mean that it is the only factor that must be considered”.
In effect, it is being treated as a secondary rather than a primary factor, an issue to which I will return in a later group. We still await the child rights impact assessment called for by the Children’s Commissioner as essential to ensure consistency with the best interest requirements. It was promised “in due course” in a Written Answer on 17 May, so where is it?
Relevant here too is the position of the devolved nations. The Northern Ireland Human Rights Commission has warned that the Bill could contravene the Good Friday/Belfast agreement and Windsor Framework in a number of ways. Has the Minister read its critique, and will the Government be publishing a response to it? The Welsh Civil Society Forum points out that Wales’s “child first, migrant second” approach, in line with its incorporation with the UNCRC, risks being undermined. As the Constitution Committee points out in its critical report on the Bill, while
“international relations are reserved matters … observing and implementing international obligations are devolved”.
What is the view of the devolved legislatures?
In conclusion, we must take note of what national and international human rights bodies are saying about this Bill. To echo a point made by other noble Lords, if the Government genuinely believe that the Bill meets the obligations in the conventions listed in the amendment, why not accept it now? Refusal to do so will only reinforce the belief of the UNHRC and others that this Bill marks the abrogation of the UK’s global responsibilities.
I would happily support all the amendments, although I would prefer Amendment 4, which I think expresses it more accurately, perhaps, than the others. I only really want to make one point because so many points have been made with which I entirely agree and they are almost unanimous across the Committee, as perhaps the Committee is noticing. We heard from other speakers that the Prime Minister put his name to that convention or treaty earlier in Reykjavik in which he is supporting international conventions. The Minister in the other place spoke about caring about international conventions. The question I want to ask the Minister is: looking at this Bill, looking at how it has been pulled apart in Clause 1, does the Minister really feel able to say that the Government care at all about international obligations?
My Lords, I want to comment on the speech made by the right reverend Prelate the Bishop of Chelmsford just now. She made a very important point which the Committee should take note of. She said that the amount of work that went into the programme to deal with people fleeing Ukraine was significant and she praised that. She understood from her experience the amount of effort that the Home Office made in that particular case.
I would like the Committee to understand that this Bill and all that surrounds it—as it is merely part of a package—is a serious attempt to answer a serious problem. It is not a problem which is faced just by the United Kingdom. I was a member of the European Affairs Committee several years ago when we were looking at the traffic coming across the Mediterranean from Libya to Italy. The European Union had and still has a programme called Operation Sophia designed to stop ships coming across the Mediterranean in that way and to deal with them when they come to Italy, Lampedusa or Sicily. Similarly, the European Union has a plan dealing with people coming from Turkey to Greece, and the Spanish Government have dealings with the Moroccan Government.
Earlier than that, the Australian Government had, I think, the first example of this problem of boats arriving with immigrants out of the blue in 2001. It was evident that people were coming across from Papua New Guinea to the northern shores of Queensland illegally, and the then Liberal Government of Australia put in hand a programme very similar to the one the Government are setting out here, which has been successful. It deterred people coming from Papua New Guinea, mainly people from Asia—India, Bangladesh and so forth. It worked, so there is precedent for success in this area, however sceptical the Committee may be about this example. I acknowledge that the United Kingdom situation is geographically and legally very different from that of Australia—I fully accept all that —but it has been a success in one area of the world in dealing with this particularly difficult problem.
While I understand the general tenor of opinion in the Committee, which has been obvious so far, I do not want the Committee to think that this is other than a committed and understandable effort to resolve a difficult problem. Given what happened in the other Chamber, where there was a considerable majority for the Bill, I do not want the House of Lords to tie the hands of the Government unduly in dealing with this novel and difficult problem.
My Lords, first, I apologise for not having been able to participate in the Second Reading of the Bill. I support Amendment 4 very strongly because I believe it goes to the heart of the problems presented by the Bill.
The list of the international conventions which we should not infringe is pretty long and very important. I will start with the Convention on the Rights of the Child, which is perhaps sometimes a little overlooked in debates. The noble Baroness, Lady Lister, spent some very valuable time explaining why the Bill will contravene some of our obligations there. I had the honour of sitting beside the late Baroness Thatcher on the day she signed the Convention on the Rights of the Child— 28 September 1990. I can remember that as it is my birthday. I do not think she would have been terribly happy with legislation that cut across an international convention she had signed. I would like to hear from the Minister when he winds up how he answers the criticisms made by UNICEF, which is the body set up by all of us to adjudicate whether or not countries are living up to their obligations under the convention. I would like him to answer the question of the areas of the Bill which appear to be in contravention.
Then there is the refugee convention, which has been referred to on several occasions. The Minister has tried on previous occasions to say that there is nothing in the refugee convention being countered by the Bill, but I am afraid that, like many other statements he has made on the matter, it is a bit like the Red Queen in Alice. He is saying, “It is so because I say it is so”; that is not usually a convincing argument. I would like to hear from him which explicit provision of the convention allows us to extinguish the right of someone on our soil to claim asylum.
Of course, we have the right to reject that claim; if we do so, and if they cannot be sent back to their country of origin due to a risk of torture and death, we have to find an alternative place to send that person. I would like to hear what explicit provision in the refugee convention permits us to extinguish the right to claim asylum—not to have it, but to claim it.
A lot has been said about the European Convention on Human Rights. I will not weary the Committee with much more, except to say that the route down which the Government will go seems clear. They might say that they do not intend to get into a position of confrontation with the European court and so on, but they are either bluffing—and bluffing does not usually work terribly well—or they are setting off down a slippery slope, which will lead us into direct confrontation with the European Convention on Human Rights and with the European Court of Human Rights in Strasbourg.
If we do that, we put at risk a substantial and extremely important chunk of the trade and co-operation agreement with the European Union. For that to fall away would be to have jumped out of the Northern Ireland protocol pan into the fire of losing a large chunk of justice and home affairs legislation, on which we worked together with the European Union.
Why do all these international complications matter? I would suggest that they matter a great deal because our Ministers—I applaud them for it—are standing at the Dispatch Box and going to international meetings, and they are saying that Britain stands for the rules-based international order. We are spending a lot of money and providing a lot of weapons—quite rightly so—to Ukraine to uphold the rules-based international order; but the list of obligations in Amendment 4 is a substantial part of the rules-based international order. If we contradict those obligations, what credibility will we have when we go around the world trying to uphold that rule? Not much, I would think. I would not fancy going to the countries of the global South and saying, “You really must take a stronger line on Ukraine”, to be told, “You say you are supporting the rules-based international order; well, here is a list of areas where you are breaking it”.
This is a serious matter that goes way beyond the responsibilities of the Home Office itself. Like others who have spoken in this debate, I do not wish for one minute to suggest that unlimited immigration is a good thing—that we do not want to stop the boats and so on. That is, frankly, not serious; it is just debating. I hope that, when the Minister replies to this debate, he will take on some of these international points and answer them in detail, with precision, and in a way that can convince us. Until that point in time, I remain a strong supporter of Amendment 4 and hope that it will stand in the Bill.
My Lords, I apologise that I did not get to speak at Second Reading. I misread the Order Paper and thought that the day started with Questions. However, I listened to all the speeches and I certainly got a sense of the mood of the House; I note that, perhaps, that mood is at odds with the mood beyond the House. A previous point was made about unanimity; well, unanimity can be a cause for celebration but it can also be an echo chamber.
However, there are specific problems in the Bill that undoubtedly need to be tackled during scrutiny in the House of Lords. They need to be tackled if the Government are to fulfil their promise to the electorate to get to grips with controlling the borders of our country—controls that people feel are being flouted by an inability to stop the small boats. If this House can ensure that the Bill works, all to the good.
One aspect of that is that we are going to need some clarity about what and who will be affected by the Bill, and why. In that context, I am sympathetic to Amendment 1 in the name of the noble and learned Lord, Lord Hope of Craighead, because it is a valiant attempt to provide a definition of illegal and unlawful migration and it could be helpful in improving the public debate on the issue, which often gets in a muddle. So often when the issue of channel crossings arises and people say that they are illegal crossings, they are scolded and told that they are not illegal and that they ought to know the law better. If there is a way of clarifying what the law is, all to the better, because that can be frustrating. Many people feel they are being gaslit on the question of the law. Amendment 1 may give us some clarity, but achieving such clarity probably cannot be done just via definitions.
There is certainly an impression outside this House— I am sure that people will put me right—that whole swathes of lawyers, along with NGOs and their legal advisers, provide those in the boats with legal get-out clauses and exemptions such that, frankly, it looks like an organised system to game the system, and that is coming not from the people in the boats but from the legal minds that are sympathetic to their cause.
I can completely understand why anyone from many of the countries that they are travelling from would want to live in the UK and to improve their circumstances, but by any reasonable definition, many or at least some of the people in the boats are not refugees in need of asylum, even if they are desperate to improve their standard of living to get away from countries that they do not want to live in. I understand that they can be encouraged to follow a script to find a way to stay in this country—we can empathise with the desire to do that—but we can also note that, frankly, that tests the bounds of legality, and in the process there is a serious danger of discrediting, for example, what we mean by modern slavery, which I think is being exploited, and what we mean by legitimate asylum status.
I wonder what the noble Lord, Lord Best, would make of the legal rows that happen within the legal and judicial community about definitions—what words mean. It is not as though if you put it down it is always clear. We keep hearing about eminent lawyers, fine minds and so on. Believe it or not, among those fine minds, there are eminent lawyers who disagree with each other. I listened to a lively row between two fine, eminent legal minds about the legal interpretation of Article 31 of the refugee convention. One read it to say that refugees must come directly from a place of danger —that is, not France—present themselves immediately, show good cause for their illegal entry and so on. Then the other person explained that coming directly, among some judges, would mean having come through other countries. Anyway, the row went on and I am not saying I understood it all, but it is not as though, every time, great legal minds give a sense of legal certainty. All this legal confusion can and does lead to cynicism that people are illegally breaching border controls, and that illegality is not being tackled. There is a danger that this can discredit the rule of law itself. I certainly agree with the shadow Immigration Minister, Stephen Kinnock, who has talked about the whole process being slowed down and clogged up by legal challenges and the problems that that causes.
In a way, my question to the noble and learned Lord, Lord Hope is: even if we establish a clear legal definition, how do we tackle the various loopholes and spurious claims that can create incentives for illegality which we cannot deny happen? Adults claiming that they are children when they are adults in order to stay, destroying papers proving country of origin and so on—are we just to say that that never happens?
Such fudging of legality and illegality has made it inevitable that the debate has now moved on to lots of concerns about legal migration and numbers and so on. Somehow, the slowness of tackling questions of illegality has actually created a far more hostile environment for discussing migration full stop, whether economic or in terms of asylum. I really regret that.
A lot of this is based on what is seen as untrustworthy politicians refusing to keep their promises, so I wanted to look at that problem as potentially one that is created by Amendments 2 and 4. Amendment 2 aims to remove the subsection that disapplies Section 3 of the Human Rights Act for this Bill, but actually, that is one part of the Bill that I agree with. It at least tries to ensure that what Parliament intends to happen actually happens, and not allow the EHRC to be used as a barrier or excuse to that endeavour.
Amendment 4 comprises a list, in essence, of what is described as “key international obligations”. They have been read out, but I think it is important to acknowledge —that I acknowledge—the existence of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, the 1951 UN Convention relating to the Status of Refugees, the 1961 UN Convention on the Reduction of Statelessness, the 1989 UN Convention on the Rights of the Child and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings. I want to state here and now that I am not arguing against all those conventions. There are some arguments that one might have, but that is not my point.
The reason why I have a problem is the way that this important list is potentially used or deployed to neuter this Bill. At Second Reading, concern was expressed that the Bill rips up long-standing commitments to international law, and we have heard that again today. My concern is how we avoid ripping up Parliament’s long-standing commitment to UK democracy if international treaties become a barrier to acting at the behest of the electorate, which is what Parliament is meant to do. What happens if those international treaties render Bills passed by the elected House—the House of Commons—unworkable?
It is, of course, true that the UK’s international reputation matters; but I also think that the reputation of Parliament matters at home to UK citizens. I do not think that we should forget the widespread, huge frustration when the public are told, “You cannot do that”.
Having no qualms is something that I would never do, but I am also suggesting that having qualms, or using those qualms, to undermine what the British public would like to do is something that other people should have qualms about. I think that people are tearing their hair out outside of here being told, “You cannot do that; you may have voted for that, but that cannot happen”. When international treaties are used in that instrumental way—which is the way I think they are being used—that is difficult.
May I ask noble Lords to put aside the specifics of this Bill just for one moment? I know that people are very emotional about this Bill, but what if, on another topic, the UK Government—perhaps another Government, not this one, whom more people in this House might be sympathetic to—brought in a different Bill? Just imagine if such a worthy Government, with a popular mandate, tried to bring in a radical, novel, innovative law; for example, enhancing workers’ rights or improving women’s reproductive rights—things that I would support. Just imagine if that Government tried to bring that Bill in and it got to the Lords, where they were told, “You cannot do that because there are all sorts of international treaty clauses that prohibit you doing it”. Imagine your frustration: would you break your promise to the electorate in that instance? I just want us to acknowledge that asking the Government to break a promise on the small boats—
Would the noble Baroness like to remind the Committee which limb of the constitution takes responsibility for negotiating and revising treaties on the world stage? Is it the judiciary? Are they the wicked people who run off, committing us to all these international obligations? Is it parliamentarians who go and negotiate these instruments that she is finding instrumental, or is it the Government who negotiate, renegotiate and, in some cases, even walk out of international obligations?
My Lords, I do not think there are evil people involved in this and I have not gone down the moral/immoral route. I am concerned, genuinely, with ensuring that the electorate and citizens of this country do not feel that parliamentary discussion uses international treaties as an excuse to not do what they anticipate that Parliament was asked to do. For example, this could be about the abolition of the Vagrancy Act. Let us be honest; a lot of promises have been broken recently. I have heard excuses made for why we have not yet abolished that Act. I have heard excuses for why we can no longer get rid of tuition fees, and for why leasehold will not be abolished—
The noble Baroness will recall that we had a referendum to leave the European Union. Many of us opposed that, but it was the clear will of the democracy of this country that we left. Surely, on these international obligations that we are saying we are bound by, if the demos—the people of Britain—feel that they wish not to be bound by them, that is perfectly legitimate. We have to find a way to carry the wishes of the people into legislation and not use international agreements to say that the wishes of the people must be ignored.
I am coming to an end. I understand the noble Lord’s point and I am endeavouring to explain that I think those international agreements are being used in a particular political way on this issue. I have suggested that breaching promises to the British electorate—I was trying to give some examples across party lines, so that nobody would think I was having a go at any one party—is leading to cynicism and bitterness in the electorate. The low turnout at the local elections was an indication of the fact that many people feel politically homeless.
I do not necessarily support the Bill. I want it to be scrutinised by this House, but I felt that the amendments I was referring to were almost avoiding scrutiny by simply ring-fencing the whole nature of the Bill and saying, “You can’t do that because of international treaties”. That would seem to render us even trying to scrutinise the Bill a waste of time and it will lead to even more cynicism about the lack of democracy. That is my point and it has nothing, as it happens, to do with Brexit or the EU. Although the desire to control one’s borders and one’s laws was undoubtedly part of that, I was not making that point in this instance.
My Lords, I thank the noble Lord for giving way and therefore I will be brief. I am not a lawyer, but I come to these matters from a very personal perspective.
I stand here as someone who, for most of my life, has faced discrimination and illegality. Why? Because the views of a majority were used against people like me enjoying the equal protection of the law and freedom from discrimination. I believe it is incumbent on anyone in public life to challenge public opinion, to lead public opinion and to have the courage to do the right thing for the long term, and never follow the short term.
I am grateful for the many briefings I have received on this from the Refugee Council, the Red Cross, the Law Society and many other eminent organisations. I think it is the first time that I have read from such reputable organisations that a Bill should be rejected on grounds of legality and constitutionality.
I particularly welcome Amendment 4 in this group because it states, quite rightly, our legal obligations. It neuters the power of Clause 1 to mandate that the rest of the Bill be in conformity with what I believe is an attempt to deny the right to seek asylum and refuge in this country.
I am lucky that I was born in the United Kingdom. I have to stand back and say: what if I had not been? What if I had been born in a country where I could not be myself, love someone of the same sex or have a different political opinion or a different religion? What if I was that person? What would I do to value my family, my life or my liberty? I would seek refuge.
To leave your home is not an easy option. I say to the Government: do not represent it as a rush through Waitrose with a three-wheeled shopping trolley. It is about life and death. Yes, there are young men who have the courage to step into a leaky boat at the end of their journey and cross the English Channel. They cross the English Channel so that they can find a place where they might belong, where they might be able to use the language or learn the language or seek out others who have similar cultural and social values. What about them, coming to earn money to send back home to liberate their families from poverty and oppression? Are they not worthy of being given the right to a fair hearing and the equality of the law?
Finally, as I said, I was born in the United Kingdom, but I am told that my family left Spain as Jews in the 16th century and travelled across Europe for the centuries that followed in search of refuge—in search of asylum. Some ended up in Ireland, where they had enough of persecution because of their religion and converted to Roman Catholicism. That branch of my family came here, and I come from that branch of the family. When I was old enough to understand that my religion was being used against me to deny me my rights and to deprive me my place and my right to love, I became a born-again atheist.
The noble Baroness, Lady Fox, referred to the speeches she had heard. She might have heard me refer to a brilliant speech in a play by Shakespeare, which I am not going to give to your Lordships this afternoon.
Oh, go on.
It is a brilliant speech, which reminds us that what was done hundreds of years ago is still being done: othering. “You bid that the strangers be removed”. These strangers have made their way from Calais to Dover to London.
“Imagine you are the stranger, with your children upon your back, your family at your side, your belongings at your feet. Imagine you are the stranger and bid that they be removed and show your mountainish inhumanity”.—[Official Report, 10/5/23; col 1849.]
That is what these amendments address and if, at some later stage, Amendment 4 is pressed, I will have absolutely no hesitation in supporting it.
My Lords, I am pleased to follow the personal and moving speech from the noble Lord, Lord Cashman. One always has to bear in mind the personal nature of many of the discussions and speeches we are hearing today.
I share one thing with the noble Lord: like him, I am not a lawyer. Therefore, to talk about the rule of law—which, in essence, is what this group of amendments is about—is to put one’s head into the legal lion’s mouth, but I am proposing to do that because I think that some important points need to be made from outside the courtroom. Before I get to the substance of my remarks, particularly on Amendment 4, I will set in context my strategic support for the Bill and the direction of travel, which I explained at Second Reading, because it will colour the background to the remarks I will make now and the remarks I hope to make in future stages of the Bill.
We are meeting on a very important afternoon. In 2021, we gave the right to remain—not the right to enter—to 504,000 people. That is equivalent to a city the size of Cardiff. Tomorrow, at 8 am, the ONS will release the figures on the right to remain for 2022. Unless the press has got it completely wrong, we will have given 700,000 people the right to remain in this country in one year. That is equivalent to a city the size of Newcastle. There must be a serious question as to whether that rate of population growth is sustainable, particularly within the confines of an already pretty crowded and small island.
I am sorry that the right reverend Prelate the Bishop of Durham is not in his place. Although we had many confrontations on the borders Bill last year, one thing we could agree on—and I suspect that there will be general agreement in Committee—is that people who are here legally, and who have legal rights to come here, need to be welcomed and given all the advantages and rights that we enjoy. The creation of two classes of citizens would surely be fatal for our country and our society. So, when we allow people to come here permanently, we take on a considerable debt requirement for investment in various aspects that make our lives suitable and happy.
The right reverend Prelate and I would also agree, I think, that, when these rights are being given, responsibilities are simultaneously imposed. If you wish to take out of our society, you must put back in —as indeed we all must. But, if the Committee accepts that we cannot, with advantage, build a Cardiff one year, a Newcastle the next year and so on into the future, we have to find ways to restrict the inflow. By the way, the unofficial figures for the first four months of this year will show higher than 700,000 if it goes on at that rate. The 67.3 million people of our settled population—18% of whom come from minority groups —deserve no less. Therefore, as I listen to noble Lords explaining how the Bill should be removed, I think they need to think about how we tackle the question of a country which has taken on 1.2 million people— 2% of its population—in the last two years.
I entirely accept, and everyone who has spoken so far has agreed, that we have to control migration. I do not think there is any argument about that, but does the noble Lord accept that of that 700,000 last year, or whatever the number turns out to be exactly, the Bill will cover only 45,000? The Bill is not about overall immigration.
The most reverend Primate is exactly right: we have failed to start the conversation across the country as to what the number we can reasonably absorb is. Once we have had that conversation, the second stage of the conversation is: how does that number divide up between, as the most reverend Primate has just referred to, people who are coming here to fulfil jobs we cannot do and people who are coming here because they have money or ideas or are brilliant academics? That way, the people of this country would have some understanding of what is in store for them. I certainly accept that 40,000 people—but it may be 80,000 people—is only a fraction, a small part, of the problem that we face.
I turn, without further delay, to the rule of law. I need to begin by stating that I am an enthusiastic supporter of the rule of law, a rule of law that interprets the views of Parliament and provides the framework under which our society can operate with confidence, our freedoms are protected and our property rights are respected. Indeed, at various times since I joined your Lordships’ House, we have had debates on the importance of the rule of law which I have been pleased to participate in. At this point, Members of your Lordships’ House who are of a judicial turn of mind will no doubt be pleased by what I have been saying. I am afraid that what I am about to say is going to be rather less acceptable.
As I have explained, I am not a lawyer, but I think the rule of law is too important to be left entirely to lawyers to speak about and interpret; there are wider societal consequences. I do not wish to get involved in legal niceties and drafting. I have heard the Government’s view, expressed by my noble friend the Minister, that the UK will be in compliance. I have heard endless briefings about how the UK will not be in compliance. Let me explain from a non-lawyer’s point of view what I think the man on the Clapham omnibus thinks, which is that the rule of law is not a stand-alone, immutable entity. To be effective and accepted, it needs to be well integrated into the civil society which it seeks to protect. Specifically, in my view, to carry public confidence the rule of law needs to meet four tests: it needs to be relevant; it needs to be open to scrutiny; it needs to be applied in accordance with the original purpose of the law; and it needs the informed consent of the British people. I shall deal briefly with those points.
The first is relevance. Of the list in Amendment 4 of five conventions, two are 70 years old, one is 60 years old, one is 30 years old and only one was signed this century. The noble Baroness, Lady Chakrabarti, proudly read them out. In 1950, in the aftermath of the appalling events of the Second World War, the challenge of refugees, in terms of numbers, scale and distance, bears no relation to the situation we face today. Of course, I accept that there are areas of read-across from 1950 to today, but to see a direct comparison in every aspect stretches public credibility.
The second is openness and scrutiny. Again, as a non-lawyer, I expect there to be open hearings, with pleadings by both sides, followed by a detailed reason for reaching a particular decision by an identified judge or judges. I am not clear that this has invariably been the situation in some of the key aspects that form the background to the Bill.
The third is applicability. I was an enthusiastic supporter of the Modern Slavery Act—which is not on the list in Amendment 4—but now I see it being misused as a means to frustrate the proper operation of our immigration system and so devalue and undermine the original purpose of the Act. I find it hard to believe that the increase in case load from an anticipated 3,500 cases per annum to the current 17,000 cases last year can all be based on genuine circumstances.
Fourthly and finally is informed consent. I return to a point I covered a bit earlier: successive Governments have never been courageous or honest enough to explain candidly to the British people the implications of these conventions. It has been easier to present the country with a series of faits accomplis and then wonder why there is a degree of public cynicism and toxicity about the process.
I hope that my noble friend the Minister will reject amendments that place excessive weight on the narrow interpretation of the rule of law. I respectfully suggest that Members of the Committee who have amendments in this group reflect on how the outcome of their decisions and discussions may serve across the country to undermine the credibility of and public confidence in a concept—the rule of law—which we can all agree lies at the heart of our society.
My Lords, I largely made at Second Reading all the points I would have wished to make in this debate, and they were admirably made earlier by the noble Lord, Lord Hannay. I look forward to the Minister’s response to the challenge from the noble Lord, Lord Carlile of Berriew, to construe for us the meaning of the Section 19(1)(b) statement. The Minister made a sporting shot at it at Second Reading when he said:
“I think it is fair to say that there has been a misunderstanding of the effect of such a statement. We have designed a scheme that is novel and ambitious”.
One can say that again. He continued:
“as a result, we have made a Section 19(1)(b) statement under that Act. This simply makes it clear that we cannot say definitively that we will win a challenge in Strasbourg. However, we are confident that Strasbourg will respect the will of Parliament and our domestic court processes. We make no apologies for taking this approach. This is what the situation demands and what the British public expect”.—[Official Report, 10/5/23; col. 1921.]
I find that a slightly sinister statement. It seems to carry the ring of, “And the court had better find for us, or else”—and we all know what the “or else” is that is talked about in some quarters. To be fair to the Minister, he did not try to argue that, in a dualist state like us, breaching international law is a legitimate action, but some he cited in his speech are so arguing.
I say to the noble Lord, Lord Hodgson of Astley Abbotts, that if one thinks that these conventions are a bit old and wants to change them, the way to go about that is to call for an international conference and put down proposals for amendments to the conventions. The refugee situation and the problems of asylum are not less now than they were when the conventions were created, so the need to defend and perhaps develop them—there is a case for trying to develop them—is more important now than it was even when they were first set up.
I strongly support Amendment 4. I also support Amendment 2.
My Lords, I support Amendment 4 for all the reasons that almost every Member of the Committee has expressed in the debate, but I will not repeat any of those arguments. I am a little disappointed that we have not heard from the noble Lords, Lord Sandhurst and Lord Wolfson, both of whom are sitting on the Government Benches. As a fellow lawyer, I would be interested to know their position on Amendment 4. I think that I saw the noble Lord, Lord Sandhurst, attempt to stand up, so I may get an answer to that question.
I am going to read to your Lordships a short quotation from the brief I have just received from Justice. I should tell your Lordships that I am on the council of Justice and have been a member for many years. It reads as follows:
“This is a perilous moment for human rights protections in continental Europe, as the war in Ukraine continues and Russia is expelled from the Council of Europe (the leading human rights organisation on the continent). The UK’s reputation is strengthened not only by being a party to the European Convention on Human Rights but an active leading member of the Council of Europe. Now is the moment for the UK to take the lead”.
My Lords, I am not a lawyer; I am an economist. When the most reverend Primate raised this question on 9 December last year, I spoke on this matter. It is not that there is any problem with Amendment 4; I accept it entirely. A sense of this issue is in Amendment 1: the Bill should not have been called an illegal immigrants Bill. It should have been called an economic migrants Bill, because the whole idea, as mentioned by the noble Lord, Lord Horam, and the noble Baroness, Lady Fox, is that we cannot distinguish between economic migrants and genuine refugees. In trying to make that distinction when somebody arrives on our shores, having paid some smugglers, we have to undertake a lot of expense, and it takes a lot of time before we can decide that so-and-so is not a refugee, because not everybody who arrives is a genuine refugee. It would help if we could separately define economic migrants and refugees.
Being an economist, I think unlimited migration is good. Let me put it this way: I do not want to exclude economic migrants, because I think they are very useful people. They have talents and are willing to risk smugglers, small boats and their lives to arrive here, so they genuinely want to come here, work hard and make a fortune—that is very good. We need people like that.
For the purposes of the law and popular sentiment, it would be helpful if we started with a distinction between economic migrants and genuine refugees. I can see why it may be a very difficult thing to do, but if you could make the distinction then we could live with Amendment 4 very happily, and in Amendment 1 we could define precisely how our courts can quickly define economic migrants. Then we should charge them money to come here—I do not see any problem with that. We have visas, and green or red cards—whatever it is—and if you are willing to pay the smuggler, why not pay us? Rather than lose money, we should have our own boat services across the channel and say, “Please come, get into our boats and pay us the money you were going to pay the smugglers”. We are losing money and not solving the problem. I know this is shocking, but these things happen.
Let us decide who is an economic migrant and who is a refugee. If we can make that distinction logically and clearly, a lot of our problems will be solved.
My Lords, I will be very brief in speaking to the amendments in the names of my noble friend Lady Chakrabarti, the noble Lord, Lord Paddick, and the noble Baroness, Lady Ludford.
As the son of an immigrant, it always makes me uneasy when that word is spoken in vain. I am the son of an immigrant who was a member of the Sikh community which came to the UK in the 1950s, 1960s and 1970s and helped to build this country by working their guts out in the foundries of the West Midlands. Most of the foundry workers were Sikhs.
The Sikh population in the UK is now about 550,000 people. It is one of the most successful communities in the UK, with the lowest number of benefit claimants, the lowest unemployment rate and high rates of home ownership. Only 4% of the Sikh community lives in social rented housing, compared with 18% of other groups. It has the highest proportion of people in high-skill occupations at 39%, compared with 30% among other groups. Only 2% of the Sikh elderly are in care homes compared with a much higher number in other communities. A recent BBC study found that Sikhs are the most generous group when it comes to giving to charities. Over 60,000 meals—langar—are served every week on the streets of the UK by Sikhs. And yet—this is my first point—in a recent faith report for the Government by Colin Bloom, the impression given was that Sikhs are terrorists and extremists. I do not accept that characterisation of the Sikh community.
As for the Bill, I wish the Prime Minister had shredded it along with the other European papers. Whichever way you look at it, the Bill stinks to high heaven. It does not speak to our country’s traditional moral values, our international obligations on human rights, the UN convention on refugees, the European convention against human trafficking, other international treaties and so on and so forth. All these have been mentioned by other noble Lords. There is not a decent principle in the Bill that does not break human rights. I fully agree with these amendments.
We shredded our position and power in the world by pulling out of the European Union. Now, we are shredding our moral obligation in the world with this Bill—and what for? For a few votes in so-called “red wall” areas. Our Prime Minister and Home Secretary should think again before pursuing the Bill. As the son and daughter of immigrants, they should know how much immigrants have given to this country. I support these amendments.
My Lords, I am glad that the noble Lord, Lord Kerr, brought his copy of Hansard from Second Reading with him. My recollection of the Minister’s explanation regarding Section 19(1)(b) was that the matter had not been tested by the courts. That sticks in my mind because I thought it was curious, since the Government are rather critical of people running off to the courts for interpretations of the law.
I will say quickly, because I want to put it on the record, that I subscribe to the view that no asylum seeker can be illegal and to the comments about international law which have been made. I am afraid that I am going to retreat from the big picture and Second Reading to Amendment 1—possibly unconventionally. I am grateful to the noble and learned Lord for tabling it, because it made me start thinking about the definitions of a lot of other terms used in Clause 1. The term he has singled out—I agree with him that it needs clarity—raises a lot of issues. There is a sort of endless loop of argument about compliance by the individual and compliance by the Government in their assessment of what they are doing.
In my mind, that is not the only phrase in Clause 1(1) that needs to be clearer. The same sentence uses the wording,
“and in particular migration by unsafe and illegal routes”.
That raises a lot of issues, does it not? Unsafe, of course, is a matter of judgment. As for illegal routes, in legislative terms, how does a route become illegal? What does “and in particular” signify in this context? Does the reference to unsafe and illegal routes exclude other routes? I really do not know. It is good prose, but not in this context.
Another phrase which bothers me at a technical and, I have to say, a political and a practical level is
“in breach of immigration control”.
Superficially, one understands what that means, but I do not know and was unable to find whether this is a technical phrase and so legally clear within domestic law. Immigration control is breached by a contravention of legislation, I would think, at a given time. That is clear enough. However, in the area we are discussing, the Immigration Rules—which we know are constantly changing and which come from Ministers and do not touch the sides for parliamentary scrutiny—are part of immigration control. So, I would be interested to know what that means in this context. It seems to me that one could portray this as delegation to Ministers by another mechanism. It is not clear—this is the political point, I suppose—so it is not a deterrent. I think it is inappropriate and gives more power to the Executive, which the Constitution Committee reports are given
“an unusual degree of power”
by the Bill.
I have added my name to Amendment 84. The noble Lord, Lord Alton, is not in his place; I did not expect to find that the debate on this would come today, and possibly neither did he. I am grateful to the right reverend Prelate for highlighting compliance with the anti-trafficking conventions. I agree with the noble Baroness, Lady Chakrabarti, that we need to come together with a single list that we can gather around.
I do not want to pre-empt debates on the substantive issues regarding trafficking and slavery—I say that without intending to suggest that the conventions and directives are not significant; they are—but will simply say that I expect the term “world-leading” to be used quite a lot with reference to the Modern Slavery Act when we get to that part of the Bill. The international nature of trafficking means that the UK has to consider it internationally and comply with conventions and directives—which brings us directly back to the point that many other noble Lords have made.
My Lords, I will speak to Amendments 2, 4, 84 and 148. I shall not speak to Amendments 1, 3 and 5. As for those later amendments, I will wait to hear what the Minister has to say about their meaning and effect on the Bill.
I turn to Amendment 2. Let me begin by way of introduction by explaining what I understand to be the effect of Clause 1(5) of the Bill, which will disapply Section 3 of the Human Rights Act 1998. Importantly, it does not mean that the convention ceases to apply to matters covered by the Bill or to acts by Ministers and officials; they will still be covered by it. Section 3 provides that
“primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.
This provides judges with the power to interpret legislation, so far as it is possible, so it is in accordance with convention rights. It can result, and has in the past resulted, in a strained interpretation unintended by Parliament. Lord Steyn, in a famous passage in the House of Lords Appellate Committee, as it then was, said that it could be an unreasonable interpretation. I quote:
“Parliament specifically rejected the legislative model of requiring a reasonable interpretation”.
So it is an unusual rule of interpretation which arrives only in this context. It goes beyond the ordinary rules of interpretation applied in our courts in this country. That is very important. The Section 3 rule is not conditional on ambiguity in the legislation which is being interpreted by the courts.
It is important also to understand that Section 3 of the HRA is not necessary for compliance with the United Kingdom’s obligations under the convention. Without Section 3, the convention will still be incorporated into our domestic law. The HRA will still function, but the disapplication of Section 3 will prevent the courts from applying strained and unreasonable interpretations to the Bill and regulations made under it.
Importantly, the Bill does not touch or affect Section 4 of the Human Rights Act, so the courts retain their power under that section to declare a provision incompatible with the convention. Regulations can still be quashed. It will then be for Parliament to decide whether to act to amend the Act or to introduce new regulations, and that is how it should be.
Moving on, I remind the Committee of the words of Lord Scott of Foscote, speaking in what was then the Appellate Committee of the House of Lords, in 2009 —so not so long ago. He said:
“It is, of course, open to Parliament to enact legislation that is incompatible with one or more of the Convention rights. The ability to do so is inherent in the constitutional role of a sovereign Parliament”.
That was the highest court in the land in 2009. I am citing that.
I do not accept that the Bill is incompatible with the European convention rights or, necessarily, with other treaty obligations. I do not recommend us breaching our treaty obligations, but there is nothing in the Bill to prevent the courts of this country determining that a provision is incompatible with the convention. What happens then is for Parliament, and I suggest that is as it should be.
As for Amendment 4, in particular, if we breach treaty obligations, it will be for Parliament to address that. That is how we have always done it in this country. It is not for the domestic courts to interfere; that is not the way we do things and we should not start introducing provisions to go down that route. It would lead to all sorts of problems, which there is not time to debate here today.
To conclude, I simply remind the Committee of the speech just now from my noble friend Lord Hodgson. He explained the growth in numbers. If we do nothing, it may be only 50,000, not the 500,000 or 700,000 this year, but that is the size of a decent-sized town. We simply cannot go on allowing that number to come in without any discouragement to those who want to follow behind. We all know, if we are honest with ourselves, that in the last few years, the numbers coming in seeking asylum, claiming that they are genuine refugees, have rocketed, and I am afraid that that is likely to become a larger number, not smaller, if we do not adopt the measures in the Bill. It contains a carefully interlinked package of provisions—
If the noble Lord looked at the national statistics on immigration for 2022, he would see that the figure is about 47,500 immigrants coming in by boat, but of those, there was a large portion of Albanians, and none of them were permitted to stay; they were shipped back to Albania.
That may be so, but the numbers are on a rising plane, and it is not simply Albanians now, they are coming from elsewhere. All I say is this. This is a carefully interlinked package of provisions. It may not be attractive or how we have done things in the past, but we face very different circumstances, and I suggest we should not seek to unpick its structure.
I just ask the noble Lord about his point on Section 3 of the HRA, which he regards as disadvantageous. He talked about courts having to make a strained interpretation. I wonder whether he would give me some idea of how many cases there have been where the courts have had to strain to make this interpretation. Presumably, if they felt they had to do that, they would have had to resort to Section 4, declaring incompatibility. The review by Sir Peter Gross did not have a major problem with Section 3—I think there was a little tweak that has escaped my memory for the moment. It was broadly satisfied with the operation of Section 3, so I wonder why it is so difficult. With Section 4 and declarations of incompatibility, there is the disadvantage of having to make remedial orders—and there is not really capacity in the Commons to do that—and/or end up in the Strasbourg court. It seems to me much better to give some leeway to the courts to interpret legislation compatibly with the convention.
, I looked at Sir Peter Gross’s report yesterday and the night before to remind myself of what it said. Two points are important. One is that it was not unanimous on that point, unlike on everything else. We are not told where the disagreement was, but at least one member did not agree that nothing should be done. Secondly, it lamented the fact that there had been no statistics kept of the cases in which the court has gone down the route of Section 3, so we do not actually know when there has been what might be called a strained interpretation or when it has been a perfectly natural interpretation. You can read it if you look at individual judgments. The one in which Lord Steyn spoke is the case of Ghaidan—I cannot remember the other name in the case—
I have a very short point to make. I was delighted to hear the noble Lord, Lord Hodgson of Astley Abbotts, say that he was a great fan of the rule of law, but he, like the noble Baroness, Lady Fox, seems to think that it is something that can be moulded in accordance with political desire in Parliament. We should be quite clear about this, and the point is not a difficult one.
The rule of law is made up of various ingredients. One of those ingredients is compliance with international obligations. If you do not like the obligations and wish to comply with the rule of law, you either secede from the convention or international obligation or you change it. So long as it is there, you have to comply with it if you want to say that you are a country that observes the rule of law. We are a leading world democracy. If we do not abide by the rule of law, we place ourselves in the company of numerous rogue nations. This country deserves better than that.
I feel a little intimidated to follow such an intervention. I am not a lawyer either, but I am a member, as I have said repeatedly in the past, of the delegation from this Parliament to the Council of Europe; and I can attest, from conversations I have had in its migration committee, plenary sessions and other meetings in Strasbourg and other parts of Europe, that there are a number of countries in Europe at the moment that are looking to us to uphold standards that will give them the courage to maintain their current position with regard to these conventions. It is a very perilous moment. Our role in Europe is key to keeping quite a lot of others on board, and I want to emphasise that.
I feel it almost impossible for me to want to give even a shred of support to a Bill that, as has been quoted, has as its preface a statement by the Minister that he cannot give any guarantee, et cetera. I find myself at a loss to be looking at a piece of legislation—a law that will go on to our statute books—that begins this process with this degree of ambiguity written into it. Can lawyers not give the rest of us a starting point more certain than that?
Finally, let me say at this point that, long before I got involved in European matters, I had a lot to do with migration from Haiti to the United States, which is not a signatory to the convention. The methods open to countries that are not signatories to the convention are not pleasant at all, and I simply would not want the United Kingdom to have the opportunities to behave in that way.
My Lords, I oppose Amendments 2, 4 and 148 in this group because they would subvert and obstruct Clause 1, which sets out the purposes of the Bill and how they are to be advanced. I also oppose Amendment 3, because it would do so in a more subtle way, in requiring the Secretary of State to give guidance to Parliament on
“how the provisions … are to be read and given effect in a way that is compatible with the Convention Rights within the meaning of the Human Rights Act”,
and it includes a new obstacle that this
“does not have effect until approved by each House of Parliament”.
In this Bill, the Government are proposing to tackle unlawful migration—people coming into this country via unsafe and unlawful routes. The Government have a duty to enforce the laws of this country. They also have a duty to ensure the security of this country, including the security of its borders. International rules require asylum seekers to seek refuge in the first safe country in which they are.
It is a long-established tradition.
The Government have proposed a scheme to remove those who did not, in this case, seek refuge in France and those who do not comply with this country’s immigration controls, as has been said. The Bill’s purpose is to deter and prevent unlawful migration. To advance that purpose, it is disapplying Section 3 of the Human Rights Act 1998. That is supposed to have the effect of making the laws clear. To this end, the disapplication matters.
I therefore oppose these amendments because they seek to subvert the aims or obstruct the purposes and methods proposed by this measure. They would remove the clarity on how the Bill is to be interpreted. They would obstruct the duty on our Government to ensure the security of our country and uphold the law. They would also mean that the democratic will of the people of this country, which is that our borders are controlled, is frustrated in the case of this sort of migration. I urge the Minister to reject these amendments.
I apologise for not taking part in the Second Reading debate on this Bill, but I have made amends by sitting through the entire debate this afternoon. I am sure that, when I reflect on the last few hours, I will realise how much I learned. There are two points I would like to make.
First, I am surprised that, despite the intervention of the right reverend Prelate—and despite, I am sure, his prayers as well—some Members of the House continue to conflate the issue of what was once disgracefully called by a Minister the invasion across the English Channel with the general issue of immigration. We can deal with the issue of immigration—and there is nothing wrong with that at all—best of all by having a serious labour market policy. That is the only way we will deal with immigration that does not set one party against another in a sort of auction of prejudice. I hope we will stop making it more difficult to discuss this Bill by talking about it as though it were a key to deal with the issue of immigration.
Secondly, I was surprised to find a spokesman for the People’s Republic of China. Why did the Chinese say they were perfectly at liberty to break the joint declaration? They said it was a historic agreement; it was out of time; it was like a packet of peanuts that had passed its sell-by date. So, I am never going to believe that, simply because we signed something 10, 20, 40 or 50 years ago, it does not have any relevance today. But I am looking forward to hearing from the Minister whether or not he thinks this Bill is in line with international obligations, and I am looking forward, I suppose, to the contribution from the Chinese ambassador in the next debate.
My Lords, like my noble friend Lord Patten, I have sat through all of this debate. I rise because my name—or, at least, a name close to mine—was mentioned by the noble Lord, Lord Hacking, at one point. The reason I rise with a little diffidence is that I have to catch a flight later this evening. I anticipate that I will be able to stay to the end of this debate and still make the plane, but if that turns out not to be right, I hope noble Lords will forgive me and not think that I mean any discourtesy to this Committee or those sitting in it today. I hope everybody will appreciate that is the last thing I would want.
Unlike other speakers, I cannot disavow being a lawyer. For better or worse, I am a lawyer. Therefore, let me make two short points at the outset. First, international law obligations are important. We ought to abide by them, as the noble and learned Lord, Lord Etherton, said. I would expect Parliament not to legislate contrary to a treaty obligation unless there were absolutely compelling reasons to do so and, in those circumstances, to make that very clear. Otherwise, we should always be legislating consistently with our international law obligations.
Secondly, as I made clear from the Front Bench on a number of occasions, I support our membership of the European Convention on Human Rights. I do not always agree with the decisions of the court—I do not always agree with the decisions of our domestic courts either—but that is a separate matter. I support us being in the convention.
I will not refer to all these amendments. I start with Amendments 3 and 148, which go together. Essentially, they refer to the statement that the Secretary of State must set out as to whether the Bill is compatible with the convention rights. Section 19(1)(a) and Section 19(1)(b) were put into the Human Rights Act as a political point. The noble and learned Lord, Lord Irvine of Lairg, made this absolutely clear when the Bill was going through this House. It was to keep people’s minds focused on whether the Government could say at that time that the Bill was compliant. It was never intended to be a legal bar. There is precedent in this House. The Communications Bill is a precedent for the Government being unable to state that the Bill was compatible with convention rights. When they were challenged, the challenges failed.
One cannot draw a line between being unable to make a Section 19(1)(a) statement and the Bill being in breach of convention rights. Section 19(1)(b) is very carefully drafted, and I listened carefully to the noble Lord, Lord Carlile of Berriew, who asked what it means. That statement is in the form that it is in the Bill because those are the words in Section 19(1)(b). That is what Parliament told the Minister to say. The structure is that if the Minister cannot make a Section 19(1)(a) statement, he or she makes a Section 19(1)(b) statement. Rather oddly, all that Section 19(1)(b) says is, “I can’t make Section 19(1)(a)”. Is that sensible? With respect, I do not think it is. If it were up to me, I would take out Section 19(1)(a) and Section 19(1)(b), which add more distraction than assistance. They were put in for political rather than legal reasons, and that is why the Section 19(1)(b) statement is in the form that it is in.
The noble and learned Lord is absolutely right; it has no legal effect. Can I put this another way? The Minister can make a Section 19(1)(b) statement and the court can find that the Act is compatible. The Minister can make Section 19(1)(a) statement and the court can find that it is not.
Does the noble Lord not agree that the Section 19(1)(b) statement on this Bill is very different from the Section 19(1)(b) statement on the Communications Bill? I am sure that he has looked at it. Secretary of State Tessa Jowell made the following statement:
“I am unable (but only because of Clause 309) to make a statement that, in my view, the provisions of the Communications Bill are compatible with the Convention rights”.
By making that statement, Tessa Jowell made it clear that in a massive Bill there was only one clause that she could not make such a statement about. In effect, she stated that everything apart from Clause 309 was compliant with the Human Rights Act. That is how it was understood; we can all read the debates. Is it not incumbent upon the Government, when they make a statement as vague as that on this Bill, to explain what is and what is not compatible with the Human Rights Act?
The noble Lord is making a political point. It may be good politics or bad politics, but whether the Government want to do that or not, my focus is on Section 19 of the Human Rights Act, which is very clear:
“A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading … (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights … or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill”.
We could have a nice debate about whether the statement in the Communications Act 2003 was consistent with Section 19, but that is not my point. My point today is simply that we cannot legitimately criticise the Minister for making precisely the statement that Parliament told him to make in Section (19)(1)(b) if he cannot make a Section 19(1)(a) statement.
With respect to the noble Lord, nobody is criticising the Minister for making the statement. The noble Lord is the distraction, not Section 19. We are criticising the Bill that cannot be stated as compatible. It is the legislation that we have a problem with, not the honesty of the Minister in saying, “I can’t say that I believe this to be compatible”. It might be politics, but politics is the process of legislative scrutiny. The objective of Section 19 was to force Ministers to put their money where their mouth is in the debate and to say whether they believe that this draft legislation complies. If they say, “I can’t be sure”, it is quite right for us to do what we are doing. With respect, this is smoke and mirrors and not to the substance of this Bill.
It is certainly not smoke and mirrors. The force of the noble Baroness’s point is, “If you can’t make a Section 19(1)(a) statement, there is something irremediably bad with the Bill”. My point is that if you are legislating in a novel area, there may well be circumstances in which you cannot make a Section 19(1)(a) statement. A Section 19(1)(a) statement is a 51:49 statement that, in your view, it is compatible. If you therefore think that it is finely balanced as to whether it is, you cannot make a Section 19(1)(a) statement. It would be wrong in those circumstances for a Government to think, “I shouldn’t bring this Bill before Parliament merely because I take the view that it is 50:50”.
I am grateful to the former Minister and sure that he listened carefully to how Section 19 was introduced into the deliberations of the Committee earlier, not least by the noble and learned Lord, Lord Hope. Members of the Committee have been pointing to the contradictions in the Government’s position around the compatibility of this Bill—Section 19(1)(b) on the tin and then something else in the ECHR memorandum. It is the clarity of the Government’s belief that Members of the Committee have for some hours this afternoon been looking for.
To avoid the noble Lord, Lord Wolfson, having to be up and down too many times, I will jump in here. The noble Lord, Lord Carlile, pointed out that the Secretary of State’s inability to make a Section 19(1)(a) declaration was in relation to only one clause. The content of that clause was the proposed ban on political advertising across all broadcast media. One can see why that might inhibit a Section 19(1)(a) declaration, but it is not on the same scale as what many of us in this Chamber this afternoon maintain are the various and extremely serious breaches of the European convention commitment. It is apples and pears, or chalk and cheese—I am mixing my metaphors horribly. It is not a good precedent for saying why there cannot be a declaration of compatibility for this Bill. It is not on the same scale.
I am grateful for that shortish intervention. Essentially it raises the same point that the noble Lord, Lord Carlile, put to me and, without any disrespect, I give the same answer. I am focused, as a matter of principle, on what Section 19 does.
Amendment 2, which has already been referred to by my noble friend Lord Sandhurst, disregards Section 3 of the Human Rights Act 1998, which is a very odd section. Uniquely in our law, it requires that other Acts of Parliament be interpreted:
“So far as it is possible to do so”
in accordance with the convention rights. We do not do that in any other area of our law.
The case law under Section 3 is extremely complex. As has been referred to before, Sir Peter Gross set this out in his review of the Human Rights Act. I would be entirely content if I could be sure that the current law on what Section 3 does remains the law. What we have seen, however, when we look at Ullah, Al-Skeini or other cases, is that what Section 3 means and how it is interpreted by the courts has moved. In those circumstances, the Government are right to exclude Section 3 of the Human Rights Act from the Bill by way of its Clause 1(5).
Finally, let me say a quick word about Amendment 4, which I will take with Amendment 84. I object to these amendments on a point of principle. We have a list of treaties that are not incorporated into our domestic law. The effect of this sort of drafting is incorporation by the back door. What Parliament will be saying is that anything in the Bill or Act has to be read subject to these treaties. Let us just have a debate; I cannot hear what the noble Baroness, Lady Chakrabarti, is saying, but I will give way if she wants to say it. If Parliament wants to incorporate treaties, it can do it, and those treaties become part of our domestic law. These treaties are not part of our domestic law. I do not understand there to be a Bill from anywhere in the House that makes them part of our domestic law. This sort of drafting makes them part of our domestic law by the back door and privileges them over Acts of Parliament. That is wrong in principle.
With great respect to my noble friend Lord Kirkhope of Harrogate, he referred to those who take a divided view between domestic and international law, but that is what we have done in this country since time immemorial. We are a dualist state. International treaties are not part of our domestic law. Of course we need to have regard to them, as I made very clear at the start of my remarks, but we should not incorporate them by the back door.
Amendment 84 is even worse, because it states:
“No provision … is to be interpreted or applied”
contrary to these treaties or
“authorising decisions or policies which would have this result”.
We legislate; the courts interpret. I suggest that the courts should assume that we do not deliberately intend to legislate contrary to our international obligations. That is similar to the principle of legality set out by Lord Hoffmann in the Simms case, but this amendment is wrong as a matter of constitutionality.
Finally, before I sit down, I will suggest an answer to the noble Viscount, Lord Hailsham, who asked why Clause 1(2) was in the Bill. I suspect it is in the Bill because, in this area of the law, as in the area of ouster clauses, for example, there has been something of an arms race between the courts and Parliament. Parliament says X, and the courts say, “Well, did Parliament really mean X? I think it might have meant Y”. Then Parliament says, “No, no, we really meant X”. I suspect we have these purpose clauses to make sure that, on any question of interpretation that comes before the court, it is clear what Parliament was trying to do. Whether that is a good or bad way to legislate is a separate question, but that is an answer to the noble Viscount, Lord Hailsham. I was going to sit down, but I will give way.
I am most grateful to the noble Lord, because I was following with interest his argument, which seems to be that there are two sorts of obligation—those we incorporate in domestic law and international obligations—and the international obligations are less binding, important and necessary. Perhaps the noble Lord could tell me what the status of the UN charter or the Brussels treaty on NATO is. Does he mean that we, as a Parliament, could decide not to apply Article 5 of the NATO treaty? That would be a pretty serious statement to make.
I am reluctant to give the noble Lord a private lecture on this, but I will set out a very short answer. I will be blunt but, I hope, legally accurate. The short answer to the noble Lord’s question is yes; we could do it. International treaties are not part of our domestic law. As far as our domestic courts are concerned—please let me finish and I will give way—if we were to legislate completely contrary to an international treaty, our domestic courts would have to abide by the Act of Parliament, because that is domestic law. Of course, that would put the UK in breach of the international treaty. It is not something I would recommend, but the noble Lord asked me a direct question about how the two interrelate, and that is a necessary consequence of being a dualist state. International treaties are not part of domestic law, unless and until they are incorporated.
This could develop into a really interesting argument, I am afraid—between lawyers. The noble Lord just referred to the dualist theory, which of course is very important, but, in reality, international treaties are not usually entered into legislation because they are made under the royal prerogative. But that does not make them any less binding.
I started my remarks by saying that international treaties are extremely important and that we should always legislate consistently with our international obligations, except in the most unforeseen and unusual circumstances. But that is not the question I was asked by the noble Lord, Lord Hannay. We are a dualist state. That is why we should object to these amendments, which seek to incorporate treaties by the back door.
As a matter of fact, the European Convention on Human Rights was incorporated by the Human Rights Act 1998, the UN Convention on the Rights of the Child was incorporated by the Children Act and so on. These particular treaties have been given special status in our domestic law. I also take some exception to the idea that Amendment 4, which everybody can see, is somehow surreptitious or “back door”. We are having this debate because, by definition, some of us want this protection very much via the front door.
With great respect, the noble Baroness is wrong. The Human Rights Act did not incorporate the convention. Can I just finish what I was saying? It took certain articles of the convention and reproduced them in a schedule to the Act of Parliament. That is not incorporating the convention; it is reproducing certain articles of it in the Human Rights Act. The point is not relevant to today but, if I am going to be interrupted on a point of law, at least let it be right. One has only to look at Schedule 1 to the Human Rights Act to see what that Act did.
Before the noble Lord sits down, I hesitate to butt into this very exciting conversation between some great legal minds. I will of course pore over it in Hansard tomorrow. The point about courts saying “Did the Government mean this or that?” is that we are passing very bad laws that are not explicit—that is the fault of the Government—and this will be one of them.
My Lords, as a non-lawyer, I have found the last few minutes absolutely absorbing. I have learned a great deal without having to pay any tuition fees. I shall peruse Hansard with a great deal of interest and will advise any law students to do the same.
Although I am not a lawyer, I will make two brief comments. For some years, I have served on the British delegation to the OSCE, the Organization for Security and Co-operation in Europe. It is slightly different from the Council of Europe, but it involves a lot of discussion nevertheless. I serve on its migration committee and we have had a lot of discussion about how we do things in this country and about how other countries behave.
What I have noticed in recent years is that the respect which we as a country have earned has been somewhat diminished, and I am asked, “Why are you doing this?” and “Isn’t this a departure?”. I remember some years ago, when we still had a lot of respect, I was asked what I thought in terms of the British experience of the rule of law and so on and how I would approach a particular issue; I ventured to indicate how I thought we would do it. But those questions are not being asked any more. We are no longer treated as a model that has earned international respect because of abiding by the rule of law and doing things properly and openly.
I would have thought this Bill has debased our reputation, certainly in countries that follow these issues, and I think that is a matter of enormous regret. I used to take pride in the fact that, in international gatherings, I came and represented a Parliament of a country that was treated well by other countries. They regarded us as an example to follow, and I fear that that is much less the case than it used to be.
I will briefly make one other point about public opinion. Of course, I am aware that what we do and what public opinion thinks is crucial. We cannot just act as if public opinion did not exist. I remember when I introduced an amendment in 2016 about refugees—Theresa May was then Home Secretary—public opinion influenced the Government’s attitude. Initially, she asked me to withdraw my amendment, and I said I would not and then public opinion woke up to what was happening: it was the television pictures of the Syrian boy, Alan Kurdi, drowned on a Mediterranean beach.
I have told this story before. The amendment was going through and I heard somebody shout at me in the street. Now, we know that normally, when people shout at us in the street, it is abuse because we are politicians. In this case, a woman shouted out: “Keep going with your amendment”. It made me realise that public opinion is not monolithic and opposed to refugees; it moves with the times. The sad thing is—I am not allowed to call anybody a liar, am I?
I shall be very careful—I do not want to be thrown out of here. During the referendum campaign, Boris Johnson said that if we did not leave the EU, 70 million or 80 million Turks were poised to enter Britain. That inflamed public opinion and moved it away from sympathy for immigrants, and indeed for refugees, as the public do not always distinguish between the two. It made me realise that public opinion can move about, but it is important. I have said all along when I have talked about refugees that it is important that we explain what is going on in such a way that public opinion is on our side.
On Amendment 4, I believe that the British public on the whole, if it was explained sensibly and objectively, would say, “We understand why we adhere to these international treaties, why they matter and why they are important”. I fear that, when eminent members of the Cabinet talk about “invaders”, they seek to poison public opinion and make it less sympathetic to how we treat asylum seekers and refugees. I think that is very sad indeed. The language we use too often does influence public opinion and I hoped at least some of this debate would have gone the other way. I think those of us who believe in the 1951 Geneva convention and the other international agreements have a responsibility to try and explain the issues in such a way that British people understand what is at stake. I believe there is a great deal at stake here.
My Lords, we support the clarifying amendments in the name of the noble and learned Lord, Lord Hope of Craighead, and my noble friend Lady Ludford has explained at length the reasons for her Amendment 2. I, too, will read the official record in an attempt to understand the points raised by the noble Lords, Lord Sandhurst and Lord Wolfson of Tredegar. Having done that, I may just leave that to the lawyers to argue among themselves.
However, as the noble and learned Lord, Lord Hope of Craighead, has said, if this Bill is not compliant with the European Convention on Human Rights, then the Government should say why or which bits of it are compliant. If there is a precedent for the Government to say that a Bill is not in compliance with the European Convention on Human Rights—the precedent set in the 2002 Act—then surely the precedent set by the 2002 Act is that the Government also say which bits of the Act are not compliant with the European convention.
We support Amendment 4 in the name of the noble Baroness, Lady Chakrabarti. This country should meet its international obligations for the reasons she and many other noble Lords have comprehensively explained. That is the sentiment behind Amendment 4. There may be some legal argument around whether that is incorporating international conventions into domestic law by the backdoor, but it does not detract from the fact that the noble Baroness is trying to ensure that this country abides by its international obligations.
The noble Lord, Lord Hannay of Chiswick, was concerned that this was a slippery slope. If I am correct—and maybe the Minister will correct me if I am wrong—there is a similar provision to Clause 1(5) in the Victims and Prisoners Bill, which indicates that this could be a slippery slope, disavowing the European Convention on Human Rights one Bill at a time.
We also support the amendment in the name of the noble Lord, Lord Alton of Liverpool, so clearly explained by my noble friend Lady Hamwee, and we will get on to the substantive issues in future groups. This Bill seriously undermines the protections provided by the Modern Slavery Act, as the right honourable Theresa May MP has also pointed out.
The noble Lord, Lord Hodgson of Astley Abbotts, talked about 700,000 people coming to the UK potentially to settle. The 700,000 is the net migration figure. According to the Daily Telegraph—and I do not know where it got the figures from—the Government gave 1,370,000 people visas to come and settle in the UK, not 700,000.
I draw the noble Lord’s attention to the fact that he is conflating two different purposes. One is rights of admission—that is for the 1.3 million—the 700,000 have the right to remain. They are quite different, and the 1.3 million do not impose the burden on us in so far as 1.3 million people, but 700,000 people here permanently need to have, as I have said, houses, schools, jobs and all the other stuff which we expect and which they must have if they are fully paid-up citizens of this country.
I will apologise to the noble Lord if I am wrong, but my understanding is that the 700,000 is net migration. That is the number of people whom the Government have given permission to come and live here—1,370,000—minus the number of people who have left the UK, so not exactly what the noble Lord has said at all. It is an issue. As the most reverend Primate said, this Bill deals with 45,000 compared with the 1,370,000 the Government have given permission to come here.
Similarly, we support Amendment 148 in that none of the Bill’s provisions should come into force until the Secretary of State makes a statement that this Bill is compatible with the European Convention on Human Rights.
To the Minister, I would say that with noble friends like the noble Viscount, Lord Hailsham, and the noble Lord, Lord Kirkhope of Harrogate, the Government clearly have serious questions to answer. In answer to the noble Lord, Lord Horam, and the noble Baroness, Lady Fox of Buckley, whatever the solution to the overall immigration issue is, it cannot involve this country riding roughshod over its international obligations. As a commander said to me when I presented my solution to a very difficult problem in the police, I do not know what the solution is but it is not this.
My Lords, it is a privilege to wind up for His Majesty’s Opposition. I start by declaring my interest as a trustee of the Human Trafficking Foundation and my work with the University of Nottingham’s Rights Lab. I thank the Minister for arranging for my noble friend Lord Ponsonby and I to visit Western Jet Foil in Dover yesterday and the Manston reception centre to see the work that they do there. I know the Minister will join us in saying to noble Lords that, whatever our debates about policy, the work, commitment, professionalism and dedication of those people who are saving lives at sea and helping people when they come ashore are second to none, and they deserve our praise and tribute.
Having said that, nobody is saying, as we debate the Bill, that there is not an issue about the boats and those coming across the channel in that way. Nobody is disputing that. Nobody is saying that there is no need to control our borders. Nobody is saying there is no need for any of the sorts of policies that we have been debating. What is before us is the way that it is done. What is the policy objective? What is the way of doing it? What is the way of controlling it? From the contributions that have been made, the debate that we have had here is saying that the Government have got it wrong and that not only will it not work—and I will come to the other points in a minute—but that it is not consistent with the principles we hold. That is a perfectly acceptable view to have. It does not mean that you are in favour of as many boats as possible coming across without any reflection on what we might do about it or that we do not care about that; it is saying that it is not the right way of going about it.
Many noble Lords have been Members of the other place, as I have. Nobody is seeking in the slightest sense, as a couple of noble Lords have suggested, to block the will of the House of Commons as it has been expressed. That was defeated by a heavy majority in the vote last week, or whenever it was. That majority included me as I did not think it was right thing to do, but I will not be intimidated by the other place into not saying that this House has the perfect right to stand up, to change the Bill if we think it is wrong, to take out of it things we think are wrong and to say to the other place that it should think again because what it is seeking to do is not right. That is a perfectly reasonable thing to do and is the constitutional position of this House.
My noble friend Lord Dubs is right: sometimes people will pray in aid public opinion one way or another and it changes. I could quote the local election results and some results where one would think that if the “stop the boats” message was working, there would have been different results from those that happened, but I will not make a political point. The point that I am trying to make is that public opinion changes, it moves and sometimes, as my noble friend Lord Dubs reminded us, it is incumbent upon people to say, without being arrogant or out of touch, that in this respect we think this is the right way to go forward, this is the right thing to do.
The other point I want to make is that we are not a direct democracy; we are a representative democracy. That is an important point to make.
Although I signed Amendment 2, which is important, Amendment 4 goes to the heart of this group. The noble Baroness, Lady Chakrabarti, the noble Lords, Lord Paddick and Lord Kirkhope, and the noble and learned Lord, Lord Etherton, deserve a lot of praise for tabling it because it goes to the heart of the Bill. I think that in many ways—I disagree with noble Lords who say that this is not the case—it is unbelievable that we are having to discuss an amendment to a Bill which says that this Bill, which a Government of this country are bringing forward, has to be consistent with the international conventions that we have signed. I would have thought that was a given.
I know there has been a great legal debate about what law means and whether we are a dualist country. I had never heard the word “dualist” until about a week ago. My simple understanding was, and the noble Lords, Lord Hannay and Lord Patten, and others made this point, that whether we are a dualist country or not, when a country signs an international convention, when it agrees with other countries that these are the rules that it is going to abide by, I think they probably think that means that it is going to abide by it whether you are a dualist country, a monist country or whatever country it is, because they believe that the Government of the country that they have negotiated an agreement with have made a binding commitment in terms of how they will proceed. That is the point. The noble Lord, Lord Patten, knows what happened in Hong Kong with the agreement. That is the whole point. The noble Lord, Lord Hannay, has done more of those negotiations. What are we doing with Russia? We are saying to Russia in Ukraine that we are not going to stand by and watch it drive a coach and horses through international agreements and international conventions. We are not going to stand by and watch that happen. I am proud our country is doing that.
That is why Amendment 4 is so important, but it is, frankly, unbelievable, as I said at the beginning, that it has had to be tabled. Is it really the case that our Government are telling the United Nations commissioner, the Council of Europe commissioner and all the other people who have said that this Bill breaks those conventions and things that we have signed, “You are wrong and we are right”? Is that really what we have come to? Is that really the situation that we are in? Are we not concerned about our reputation? The Government will say that it is not the case. I am sure the Minister will get up and say that we are abiding by these conventions and that the Government do not understand why the commissioner has written and that he or she is wrong in writing to us and saying that we do not abide by this convention or that convention. I am sure that the Minister will say that, but why are they writing to us? They cannot both be right. Either they are right or the Government are right, and yet they are saying to the Government that many of the conventions they have signed are being broken by the Illegal Migration Bill. What is our Government saying? Has it really come down to our Government just dismissing it, just a shrug of the shoulders, it does not matter, who cares, we are not bothered? That is no way for a Government to run their affairs. The consequences of doing that are enormous.
I finish by returning to the point about Amendment 4. I think it does us a favour; there might be one or two other conventions, but the amendment lays it out. These are fundamental ways in which countries have come together to say that, when dealing with some of the most difficult situations that we face, including the mass movement of people across borders, no country can do it alone. There must be co-operation, agreement and understanding—and those agreements and that understanding are based on countries believing that what they are told by another country will be adhered to and promises will be kept.
If that is not the case, all this will fall apart and we will have international anarchy. Our country cannot solve the problem of refugees and migration alone; it needs to work with others. That was the basis of the conventions that we signed and of the agreements that we made; our international reputation stands on it and we should keep it.
My Lords, we have had a very interesting, long and good debate, which has had perhaps more than a hint of a Second Reading debate—but, of course, that is unsurprising, given that Clause 1 sets out the purpose of the Bill. We will of course be able to revisit this debate in the second group when we have the “clause stand part” Question.
We have heard thoughtful speeches from many noble Lords, but I particularly valued the insights from the noble Baroness, Lady Fox, my noble friends Lord Hodgson, Lord Horam, Lord Sandhurst and Lady Lawlor, and my noble and learned friend Lord Wolfson.
For now, let me respond to the amendments directly. First, Amendments 1 and 5, tabled by the noble and learned Lord, Lord Hope of Craighead, seek to add into the Bill definitions of “illegal migration” and “unlawful migration”. The noble and learned Lord has suggested that this would be helpful in the interests of legal certainty. As a lawyer myself, I am all in favour of legal certainty but, in this instance, I am not persuaded that adding these definitions helps in this regard.
It is important to incorporate Bill-wide definitions in a Bill where terms are used across the Bill. We have done that in this Bill and, as noble Lords will have noticed, Clause 64 includes an index of defined expressions. But I put it to the noble and learned Lord that nothing hangs off the terms “unlawful migration” or “illegal migration” and, consequently, there is no need to define them. The term “unlawful migration” is used only once in the Bill, in Clause 1(1), while the term “illegal migration” is used only in the Short Title, as the noble Baroness, Lady Chakrabarti, observed. Moreover, it is clear from Clause 2 that the duty to make arrangements for removal applies to persons who meet the four conditions in that clause. It does not apply to other persons who may be in the country unlawfully—for example, because they have overstayed their limited leave to enter or remain. In short, the Bill is clear without these two terms being defined.
As regards the early intervention in the debate from the noble Baroness, Lady Meacher, a point repeated by both the noble Baronesses, Lady Chakrabarti and Lady Hamwee, as well as my noble friend Lord Kirkhope and the right reverend Prelate the Bishop of Chelmsford, I remind your Lordships that the Immigration Act 1971 was recently amended by the Nationality and Borders Act 2022 with regard to the criminal offences relating to illegal entry and arrival. This includes people who enter the UK without leave or arrive in the UK without permission: for example, without a visa where that is required under the Immigration Rules. This means that such persons are illegal migrants whether or not they go on to claim asylum. This, if I may say, answers the question from the noble Baroness, Lady Hamwee, of what makes a route illegal. The answer is: legislation, passed in the normal way, and scrutinised and passed by this House.
The suggestion by the noble Baroness, Lady Chakrabarti, that anyone making claims under the refugee convention can never be illegal, represents, with respect, a muddled reading of the convention. The convention is clear that states can still operate controls on illegal migration and, under Article 31, it is expressly permitted to disadvantage those who have arrived illegally from safe countries—which is true of all who come from France. This embodies the first safe country principle in the sense that Article 31 protections apply only to those who have come directly from unsafe countries—a point made by my noble friend Lady Lawlor.
The first safe country principle is also widely recognised internationally, including in the Common European Asylum System, a framework of rules and procedures operated by EU countries together, based on the refugee convention. I would add that the noble Baroness, Lady Chakrabarti, may have overlooked the fact that, under Clause 2(4) of this Bill, the “duty to remove” does not apply to those who have come directly from unsafe countries, in line with the refugee convention.
The refugee convention seems to be raised to support statements that are not all borne out by its terms. We must interpret the convention as it is written, not as others would wish it to be written.
I thank the Minister for giving way. I merely want to ask whether you are recommending that all of the 46,000 who arrived last year should be sent back to France. If so, has the Prime Minister had any discussions with President Macron about that?
As the noble Lord knows, the Prime Minister and President Macron have had regular discussions and there have been regular treaties and agreements in relation to the enhancement of police powers in France, but it is not presently the position of the French Government that they are willing to accept the return of those who have entered the UK illegally. That is what drives the Government to look for other avenues to dissuade people from embarking on the dangerous journey across the channel.
Turning to Amendment 2, tabled—
I am sorry to intervene on the Minister, but I wonder if he could direct my attention to where in Article 31 of the refugee convention it refers to “illegal migrants”. I can find a reference only to “illegal entry or presence” or “entry or presence without authorisation”. It is the entry or the presence that is illegal or unauthorised; it is not the person. That is the problem that many of us have with the term “illegal migrant”. I cannot find it in Article 31 of the refugee convention; perhaps I have not looked hard enough.
I am very grateful to the noble Baroness. I was indeed about to mention her in my next sentence. Let me address that point and repeat what I said earlier. The phrase “illegal migration” in the Short Title of the Bill refers to the fact that the act of entering otherwise than in accordance with immigration controls was criminalised by an Act passed by this House and the other place in 2022. That is why it is correct to describe such people as “illegal migrants”—because they did not enter in accordance with immigration controls. That is the long and the short of it. The interpretation of Article 31 is irrelevant as regards that point of certainty.
I turn now to Amendment 2, tabled by the noble Baroness, Lady Ludford. This amendment seeks to strike out subsection (5), which disapplies Section 3 of the Human Rights Act 1998. The disapplication of Section 3 will ensure that the Bill’s provisions will be interpreted to meet the legislative intent of Parliament, rather than the strained interpretations imposed by the courts to achieve compatibility with convention rights. As my noble and learned friend Lord Wolfson, King’s Counsel, pointed out, Section 3 is an unusual provision in UK law and there is, in principle, no reason why it cannot be excluded in cases like this.
It is our view that Parliament and the Government are better suited to address the sensitive policy issues involved in this legislation. It is therefore only right that Section 3, which requires the court to interpret the provisions to achieve compatibility with convention rights, must be disapplied so that courts interpret the law in accordance with the purpose of the Bill. Through this, we are ensuring that the balance between our domestic institutions is right and that Parliament’s intent is clear to the courts.
As the noble and learned Lord, Lord Hope, explained, Amendment 3 flows from the recent report of the Constitution Committee. I am very grateful to that committee for its scrutiny of the Bill. We are studying its report carefully and will respond in full ahead of Report. As for the genesis of the amendment, the noble and learned Lord explained that the Constitution Committee considered that more explanation was needed around the Section 19(1)(b) statement that I made on the introduction of the Bill in this House.
Notwithstanding that the noble Lord, Lord Kerr, quoted from my Second Reading speech on this issue, I reiterate the point I made at that stage: a Section 19(1)(b) statement means not that the provisions of the Bill are incompatible with the convention rights, only that we cannot be certain that they are compatible. The assertion suggested by the noble Lord, Lord Coaker, in his speech a moment ago, that the statement amounts to a concession that measures in the Bill are incompatible, is not the case. The purpose of Section 19, as my noble friend Lord Wolfson set out, is that it is a statement that the provisions of the Bill are incompatible with convention rights and we cannot be certain that they are compatible. It is of course a measure in a piece of legislation passed by the last Labour Government and therefore something that the noble Lord, Lord Coaker, would no doubt place great weight on. Those are the terms that we find in Section 19 of the Human Rights Act.
Does the Minister not think that it might at least be a courtesy to the Committee to set out which of the provisions, in his view and that of the Home Secretary, are or are not compatible with the convention? That would help us to determine the quality of the legislation that is proposed.
I will come to address the issues of the broad applicability of the Section 19(1)(b) statement. There is no requirement in the Act for a statement to identify any particular section. Indeed, I do not want to wade into the waters that were nearly ventured into during the interventions on my noble friend Lord Wolfson’s speech about whether the Section 19(1)(b) statement in relation to the Communications Bill, as it then was, was in accordance with the statute.
In any event, I return to the principle of Section 19(1)(b) statements. It is right to say that they have been made by Governments of all stripes, not least in the Communications Bill, as we heard earlier in the debate, but also by the coalition Government and by Nick Clegg in the House of Lords Reform Bill 2012. As my noble friend Lord Wolfson rightly indicated, issuing a Section 19(1)(b) statement is a legitimate choice given to Ministers under the Human Rights Act. Why else would the Act provide for such a course?
As I have said, previous Governments have issued such statements, and clearly that has not caused our international reputation to collapse. More broadly, I encourage the Committee to approach questions of international reputation with a proper perspective. The world can be in no doubt that we are defenders of rights and liberty, the most obvious example being our leading support for Ukraine.
Requiring guidance to be approved by Parliament on how the Bill’s provisions are to be interpreted within the meaning of the Human Rights Act is unnecessary. On 7 March the Government published a memorandum addressing issues arising under the ECHR, and a supplementary memorandum was published in April in relation to the government amendments tabled for Report in the Commons. These memoranda set out a provision-by-provision ECHR analysis, so I submit that the Government’s position is clear, and the noble Lord, Lord Carlile, will find the answers to his questions about what sits behind the Section 19(1)(b) statement in those memoranda.
It will undoubtedly be necessary to provide Home Office staff, immigration officers and others with appropriate guidance to support the implementation of the Bill. It would not be appropriate for such routine operational guidance on the implementation of a particular Act to be subject to parliamentary approval.
Notwithstanding our view that the provisions of the Bill are capable of being operated compatibly with the convention rights, Amendment 3 is at odds with the approach taken in Section 6 of the Human Rights Act 1998. As the noble and learned Lord will know, Section 6(1) of the 1998 Act requires public authorities to act compatibly with the convention rights, but Section 6(2) expressly disapplies the requirement in Section 6(1) in two circumstances. First, the requirement in Section 6(1) does not apply to an Act if, as a result of the application of one or more provisions of primary legislation, the public authority could not have acted differently. The second exception applies to an Act if, in the case of one or more provisions of or made under primary legislation that cannot be read or given effect in a way which is compatible with the convention rights, the public authority was acting so as to give effect to or enforce those provisions. Given those provisions, Amendment 3 risks muddying the waters and reducing, rather than enhancing, the level of legal clarity. Section 6 of the Human Rights Act should be our guiding light here; it affords the necessary clarity for those seeking to give effect to the provisions in the Bill.
Amendment 4 tabled by the noble Baroness, Lady Chakrabarti, looks to remove Clause 1 and replace it with a new clause that provides that nothing in the Bill
“shall require any act or omission that conflicts with the obligations of the United Kingdom”
under the five international agreements specified in the amendment. Amendment 84 in the name of the noble Lord, Lord Alton, is intended to have a similar effect, albeit referencing a different list of international agreements, although both lists include the ECHR and ECAT. The same is also true of Amendment 148 in the name of the noble Baroness, Lady Ludford, albeit that it is focused on compatibility with ECHR rights.
As I have already set out at the Dispatch Box, the Government take their international obligations, including under the ECHR, very seriously. It is already the case that, in the words of the noble Baroness’s amendment, there is nothing in the Bill that requires any act or omission that conflicts with the UK’s international obligations. To that extent, the amendment adds nothing and is unnecessary.
Moreover, Amendments 4 and 84 raise a significant constitutional point. Through the Human Rights Act we have already accepted the provisions of the convention into domestic UK law, and consequently that Act already provides a framework for public authorities and the courts to apply the convention rights. As my noble friends Lord Sandhurst, King’s Counsel, and Lord Wolfson ably pointed out, disapplying Section 3 simply ensures that the courts will not make strained interpretations of the Bill. It will not disturb our human rights framework.
When my noble friend was replying to the noble Lord, Lord Carlile, he said that the ECHR memorandum set out precisely which articles of the convention had that effect and which clauses in the Bill were compatible or not, and, as he says, different rights are listed. But what is the status of that definitive document? He says it is the answer to the noble Lord’s question, but what is its status? Presumably it does not have legal effect in itself.
That is correct: the ECHR memorandum is one of the documents prepared to support the Bill in its passage through Parliament. Obviously, if a matter of interpretation were required, it is the sort of material that those looking for an interpretation might be minded to refer to. Indeed, it is open to those in Parliament to refer to such documents. It is, of course, right to say that the ECHR memorandum is a standard part of the package in relation to public Bills—so, in that sense, it has regular status.
Before the Minister leaves this part of his address, will he tell the House whether it is the intention of the Government that the implementation of the Act should be compliant with all the conventions that are set out in Amendment 4? Do the Government intend to comply with those conventions? This House is entitled to know.
As I have already outlined, it is clear that there is nothing in the Bill that would require the UK to breach its international obligations. The UK takes compliance with those obligations very seriously. As for the other international instruments referred to in these amendments, they have not, by and large, been incorporated into UK domestic law, and we should not seek to do so in this Bill through the back door.
The Minister seems to be placing a great deal of weight on there being nothing in this Bill that requires the Government to take action contrary to our international obligations. He would surely agree, however, that there is a great deal in this Bill that enables the Government to take action that would be contrary to our international obligations—and that without any recourse to Parliament.
I am not sure that I agree with the noble Lord. There is no requirement that powers should conceivably be expressed on the face of every Bill in such a way that they are trammelled by international obligations. That would be contrary to the dualist system, as my noble and learned friend Lord Wolfson made abundantly clear. I am reluctant to reopen that particular exchange at this juncture, given the time that we have remaining prior to the dinner break.
States take different approaches to their international law obligations. Some states treat international law as part of their domestic law, but the UK, like other countries with similar constitutional arrangements, including many Commonwealth countries, has the dualist approach that we have discussed before. In those states, international law is treated as separate from domestic law and international law is incorporated into domestic law only by decisions of Parliaments through legislation. That is a point we have already discussed. The effect of these amendments would be to make the provisions of all the listed international agreements effectively justiciable in the UK courts. It is legitimate for noble Lords to make the case for incorporation into domestic law of one or more of these international instruments, but that is not the Government’s position, and we should not be using this Bill to secure that outcome.
I hope that, in light of my explanation, the noble and learned Lord will be content to withdraw his Amendment 1.
I wonder whether the Minister could help me. He said that the Government would apply—I gather—all the conventions that are in Amendment 4. May I suggest that it would be impossible for the Government to apply the United Nations Convention on the Rights of the Child? It is perfectly obvious that the best interests of a child throughout the Bill will not be recognised.
Clearly, as I have already said, it is the Government’s view that nothing in the Bill requires the UK to breach its international obligations, whether in relation to the UN Convention on the Rights of the Child or any of the other listed international instruments. Of course, the United Kingdom takes compliance with its international obligations very seriously.
My Lords, I am very grateful to all noble Lords who have taken part in this very interesting and far-ranging debate. I am conscious of the time, and I am sure the Committee would not wish me to go over the ground in any detail, and I am not going to do that.
The Minister, with great respect, has not really answered many of the questions that have been raised. We will come back to this, I am sure, possibly in the next group, but certainly these questions will come back on Report and will need to be answered in much more detail. So far as my own amendments are concerned—the definition point—the Minister has pointed out that nothing hangs on these words because they do not reappear elsewhere in the Bill. I was well aware of that when I tabled the amendment, but that raises the question: why brand the actions of these people coming here as unlawful or illegal, unless, of course, they are in breach of specific legislation, which is not always the case? That illustrates the unfortunate wording of Clause 1, which we will come back to.
As far as Amendment 3 is concerned, which deals with the question of guidance, I do not think, with great respect, that the ECHR memoranda amount to the kind of guidance that is needed in a situation where access to the courts is being denied. Something more specific is needed, and that is what the amendment is driving at. Perhaps we will come back to that at some later stage. For the time being, I think the simplest thing I should do, so that we can move on, is beg leave to withdraw Amendment 1.
Amendment 1 withdrawn.
Amendments 2 to 4 not moved.