Illegal Migration Bill

Report (1st Day)

Clause 1: Introduction

Amendment 1

1: Clause 1, page 1, line 3, leave out “unlawful migration, and in particular”

My Lords, noble Lords across this House are to be commended for the anxious scrutiny given to this most controversial Bill over many hours, days and nights in Committee. Now, it is time to move through votes on as many already well-debated amendments as quickly as possible.

I have Amendments 1, 2, 3, 5 and 13 in this first group. However, short of any miraculous change of heart by the Home Secretary and the Government, it is the crucial Amendment 5, also bearing the names of the noble Lords, Lord Paddick and Lord Kirkhope of Harrogate, and the noble and learned Lord, Lord Etherton, that I shall press in what I hope will be a very short while. It replaces the rather long and strange narrative in Clause 1, so as to reinstate Section 3, the interpretation provision, of the Human Rights Act, and ensure that the rest of the Bill is read so as not to require that British officials, Ministers or His Majesty’s judges breach precious international treaties that our former statesmen and stateswomen played such a heroic part in creating. These are the ECHR of 1950, the refugee convention of 1951, the conventions on statelessness of 1954 and 1961, the UN Convention on the Rights of the Child of 1989, and the anti-trafficking convention of 2005.

This interpretation amendment is essential to protecting the most vulnerable people, including by any amendments to follow. It is equally important for the international rules-based order and for our reputation as a great democracy in a troubled world. That was two minutes. I beg to move.

My Lords, I support the noble Baroness, Lady Chakrabarti, on one legal point. In Committee, the noble Lord, Lord Wolfson of Tredegar, stated, quite correctly, that we have a dualist system under which international obligations are not part of our law unless specifically incorporated by statute. I consider that this interpretation amendment does not fall foul of that because it imposes no positive obligation to do anything specifically required under those treaties. It is simply of a negative nature to say that the Bill itself —and, in due course, the Act—must be interpreted so as not to conflict with those treaties. For my part, it is perfectly legitimate and legal.

My Lords, I will speak to Amendment 4, in my name. I appreciate the need to move as fast as possible and I shall be as short as I can. This amendment, which appeared in Committee and is renewed today, would require the Secretary of State to provide

“guidance as to how the provisions of this Act are to be read and given effect in a way that is compatible with the Convention rights”.

The amendment follows a recommendation by the Constitution Committee prompted by the provisions in Clause 1(3), which tells us 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)”.

Clause 1(5), the crucial subsection, states:

“Section 3 of the Human Rights Act 1998”—

which gives the function of deciding what the convention rights mean for the courts—

“does not apply in relation to provision made by or by virtue of this Act”.

The Committee said that the Government’s position requires explanation. Of course, there are more fundamental objections to these provisions, which are the subject particularly of Amendment 5. I do not want anything I may say in the next few minutes to be taken as undermining in any way the point made by the noble Baroness in favour of her amendment, but the fact remains that the Government’s position on how these provisions are going to work needs to be explained, and no sufficient explanation has been given. Clause 1(5), after all, is a major incursion into the way the convention rights are currently protected. This is a matter of particular concern given the extent to which the Bill affects so many people, including children and the victims of modern slavery, who are extremely vulnerable to government action. As I said last time, they are being sent into a desperate kind of no man’s land where the ordinary protections we enjoy are being denied them.

My Lords, I support Amendment 5 in the names of the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Etherton. I speak on behalf of my noble friend Lord Kirkhope of Harrogate, who put his name to the amendment but regrets that he cannot be here with us today. This amendment is firmly in the Conservative tradition of strengthening, not undermining, the international rule of law. I remind noble Lords, and especially my noble friend, that Conservative Governments were instrumental in creating the first four conventions listed in the amendment.

Regrettably, the precise legal position of the Bill and its compliance with our international obligations—with this Conservative legacy—remains unclear. The Government say they believe it is compliant. A great number of others, include some of the bodies tasked with implementing these conventions, say that it is not. What is clear is that disobeying or disapplying international agreements which bear the name of the United Kingdom is not acceptable. If the Government are unhappy with their international obligations, they are free to seek to renegotiate them, but simply ignoring our international legal commitments in pursuit of domestic expediency puts us in very bad company.

As your Lordships’ House has repeatedly reminded the Government over the last few years, if we hope to negotiate or originate future international agreements on anything from trade to artificial intelligence, and to continue to play our historic role as a creator and driver of international law, we cannot breach our existing agreements. Who would trust us then? We rightly argue for the rule of law in our international relationships and expect it to be followed by other countries; we must follow it ourselves.

My Lords, I support Amendment 5 also tabled by the noble Baroness, Lady Chakrabarti. In Committee a comprehensive debate took place, during which different cases were made by distinguished lawyers across the House about the place of international law as it relates to our domestic lawmaking. Notwithstanding the different interpretations, I wish to reflect on the moral imperative for us to take seriously the commitments we have made in past decades. Those commitments have value in themselves, but they have also come to define the country that we are and aspire to be. They are part of why we are trusted by much of the international community and held in high regard.

Treaties such as the refugee convention and the UN Convention on the Rights of the Child set out clearly the rights of people who, due to their particular circumstances, may not be able to speak up for themselves. In many cases, this country has led the way in drafting the treaties named in the amendment. We should be proud of our involvement in advocating for the rights of every single human being. Anything that affirms our conviction that we are all created in the image of God, worthy of value, dignity and safety, should be commended.

Ensuring that international treaties of this nature are taken seriously in this country, and in this Parliament, is especially important given much of the unfortunate rhetoric and misinformation present around the Bill and last year’s Nationality and Borders Act. Language matters and it forms perceptions, sometimes false perceptions. For example, we hear repeatedly that refugees should claim asylum in the first safe country they reach, even when the majority of refugees already do this, and even though the refugee convention makes no such obligation on people to claim asylum where they first find themselves.

The refugee convention states that protection is not a simple concession made to the refugee: he or she is not an object of assistance, but rather the subject of rights and duties. If we move away from this indisputable legal principle, which underpins the human rights framework, not only our reputation but the spiritual health of this nation will be at stake.

My Lords, I think the argument for Amendment 5 was won in Committee and need not be rehearsed at great length now. In my view there is no doubt that if we pass the Bill, what will follow will be a series of breaches of conventions, in particular the 1951 refugee convention. That is not just my view. It is also UNHCR’s view, formally and on the record.

When this point was put to him on our first day in Committee, the Minister said that UNHCR

“is not charged with the interpretation of the refugee convention”.—[Official Report, 24/5/23; col. 968.]

That is not true. Article 35 and the preamble to the refugee convention give UNHCR the task of supervising its implementation. We are required as convention contracted parties to submit our legislation to UNHCR. It has commented on this legislation and believes it would lead to breaches of the convention. That is why you can sum up the argument in three words: pacta sunt servanda. If we purport to believe in the rules-based international system, we cannot pass the Bill in this form. We must support Amendment 5. If the Government believe what they say, they can support Amendment 5 too.