Illegal Migration Bill

Committee (1st Day) (Continued)

Debate on whether Clause 1 should stand part of the Bill.

My Lords, on behalf of my noble friend Lord Paddick, who will respond later, I am pleased to suggest the deletion of Clause 1, largely because some parts of it have been scrutinised in huge detail but it has not had that scrutiny as a whole. Also, I suspect that many Members of the Committee are waiting for answers to some of the questions that they raised in the earlier debate. I particularly enjoyed the company of noble and learned Lords of all varieties. During the break, I was trying to think what we might call a collection of lawyers giving such erudite opinions. I have perhaps alighted on “a mêlée of lawyers”. It was interesting that, while they had very different views about what was happening, it was clearly not as simple as saying, “This will be the way in which matters arise from the clause”. We have not yet reached an understanding of the legal position, certainly on Clause 1(5).

The clause is the prism through which the whole Bill is understood. It speaks to its true purpose and impact: to prevent and deter people arriving in the UK irregularly by the threat of their removal, regardless of the rights and conventions disregarded in the process.

While stopping the boats has been the headline, at its heart this Bill enables removal as its primary aim and, in mandating it by statute, people will not have a chance to put their case for asylum in the UK and never be able to acquire leave to remain. There will be extremely limited opportunity for judicial oversight and detention powers will be significantly enlarged.

This is deeply concerning, and it is an approach for which the Government are not even able to provide an impact assessment to demonstrate its efficacy—we have been promised it, but it has not yet been published. Thankfully, the Refugee Council has done an impact assessment based upon the statistics and figures produced by the Home Office, so it would be useful to know, in his reply, how the Minister intends to answer this impact assessment, which is based upon their own figures, without providing the evidence themselves to be able to combat it.

I will not go through the whole detail of the impact assessment produced by the Refugee Council but will focus on some of the headlines. They say that, in the first three years, 30,000 people will be sent to Rwanda; the Government have said that is the total number of people who can be accommodated in Rwanda. Some 257,000 will have their claims rendered inappropriate, undesirable and certainly not admissible. Of those 257,000 people, 45,000 will be children.

Some 193,000 inadmissible people will remain in the United Kingdom because, apart from Rwanda, there is nowhere else to send them. They will be stuck in limbo indefinitely until such time as an alternative can be found. The cost of keeping that number inside the United Kingdom, based upon the current estimates provided by the Home Office, will be £9.6 billion in those first three years. On top of that, we have to add on the 181,000 people still inside the United Kingdom who are waiting for a decision.

It is doubtful, to put it mildly, that this will act as a deterrent to the boat owners. We are currently 20th in Europe, by headcount, on receiving migrants and therefore we are nowhere near the top of the league. The question for the Minister is: does he accept that these figures, which have been produced based upon their own, are correct? If they are not correct, when will we have the evidence to say that they are not?

In excluding the application of Section 3 of the Human Rights Act to those covered by the Bill, there is an expressed acknowledgement that the Bill risks putting human rights at bay. It is interesting that paragraph 5 of the Government’s own European Convention on Human Rights Memorandum says that Clause 1(5), which removes Section 3,

“does not affect the Government’s assessment of compatibility of the Bill with the Convention rights”.

If that is true, I would like the Minister to tell me whether the removal of Section 3 of the Human Rights Act, as contained in Clause1(5), will still mean that those who are seeking refuge here in the United Kingdom will be afforded the rights under the convention, which says that they will be allowed to have their case heard quickly by those who are detaining them. That is a right under the convention. Is that in contradiction to what the Government are proposing, and is it in contradiction to paragraph 5 of the memorandum which the Government have provided?

The concern, which has not yet been answered clearly and to the satisfaction of many Members of this Committee, about the human rights matters and Section 3 of the Human Rights Act, is a concern also highlighted by the Equality and Human Rights Commission, which of course advises the Government. It advises them that it will create a two-tiered system of human rights protection in this country, whereby an individual’s human rights will be interpreted solely on the basis of how they entered the United Kingdom. That is wrong: a human right is a human right, regardless of whoever that human being is. Here, we are talking about some of the most vulnerable people in the world: the female political activist from Iran; the gay man from Uganda; the young man escaping forced conscription in Eritrea; a family fleeing war in Sudan. Those are the people who are going to be affected most by this clause and this Bill.

The provision of Section 3 is an essential mechanism through which courts can correct human rights violations and enable individuals to access justice. It is a basic moral requirement for governing and one which is in the convention. In its report on the Bill, our Select Committee on Constitution confirmed there has been no Act of Parliament which has yet sought to disapply Section 3 of the Human Rights Act 1998. By its application, Section 3 has also reduced the number of people currently pursuing litigation in Strasbourg because they have been able to secure justice domestically. This clause therefore brings with it the potential for extensive litigation in the future. Any observer of the proceedings on the previous group of amendments will have noted that this may well provide a fair playing field for lawyers as these legal battles develop down the line.

In taking this approach in Clause 1, the Government have accepted the likelihood that they could possibly lead to the UK breaching its international obligations. That puts us on that collision course with the Council of Europe and the ECHR. Having the High Commissioner for Human Rights send a letter to the Lord Speaker, in order that all Members of your Lordships’ House should be able to see the views of the human rights commissioner, was most telling. The last but one sentence was a message to all of us from the commissioner:

“it is now essential that Members of Parliament and Peers prevent legislation that is incompatible with the UK’s international obligations being passed”.

That is the chilling message for us.

I heard earlier about the impact on the rule of law and the way in which these matters will be interpreted by those who look at the reputation of the United Kingdom. I noted the words of the noble Lord, Lord Hannay, in the previous debate. The implications for how people will look at this country seem not yet to have been considered.

The fact that all the provisions in the Bill will have to be read in line with this clause means that it has profound cross-cutting detrimental implications for human rights. Parliament is here as the supreme lawmaker in the United Kingdom, yet this Bill hands broad lawmaking powers, which implicate fundamental human rights, to the UK Government in the form of delegated powers and explicit shifts of power. Our democracy depends on there being a clear separation of powers, and this Illegal Migration Bill represents an attempt at a power shift which enables the UK Government to play the roles of all three branches of state: lawmaker, adjudicator and administrator. In undermining the separation of powers in this way, both the UK’s constitution and our democracy is diminished.

Clause 1 is an extreme assault on the ability of people to have a fair hearing in the UK. The rule of law is essential, and undermining that will upset the influence we have as a country across the globe. The stated purposes, as I outlined at the beginning of the speech, to detain people and send them away from the United Kingdom without having their cases heard, will undoubtedly be debated further in the clauses that are to follow. However, it makes me feel very sad that, at this point, this clause, which lays out in such detail the purpose of the Bill, is one that runs so counter to the principles we uphold as a nation.

My Lords, it is a pleasure to follow the noble Lord, Lord German. In arguing for Amendment 4, I have already suggested why I think Clause 1 should be replaced by a clear commitment to key international obligations and a requirement that the Bill be read accordingly by officials, Ministers and the courts. However, whether or not noble Lords eventually agree with Amendment 4 down the road, Clause 1 in its current form must not stand part.

The noble Viscount, Lord Hailsham, who is no longer in his place, rather smelled the rat earlier. Clause 1 is not some innocuous attempt to repeat the Long Title and extrapolate it into the body of the Bill. Instead, it is a direction to the courts to ignore international obligations in favour of the Executive’s purposes—they are executive purposes because we are part of Parliament and we have not finished with the Bill yet. Ignoring international obligations was the subject of so much of the earlier proceedings of the Committee and I do not think anybody put the problem with that better than the noble Lord, Lord Patten, with his peanut analogy, to which I am sure many people will return for a very long time.

The noble and learned Lord, Lord Hope of Craighead, rather nailed it, if I may say so, by pointing to the particularly perverse nature of subsection (3). Language once crafted by the great Sir Edward Caldwell, the former First Parliamentary Counsel, for the purpose of ensuring human rights compatible interpretation via Section 3 of the Human Rights Act is now being appropriated—or, to use the eloquent language of the noble Baroness, Lady Lawlor, subverted—for the purposes of ensuring that human rights are violated. For those reasons alone, Clause 1 should not stand part.

My Lords, I would like to come back to the points I raised in the first group, because they are the basis for my support for the argument presented by the noble Lord, Lord German. I agree with very much of what he said.

I have two points. The first is why we have to have Clause 1(1) in the Bill at all. As the Minister explained, nothing hangs on “unlawful” or “illegal”. They are tendentious words and I find it uneasy to know what they mean unless they are properly defined. The Minister was not prepared to give me a definition which tied them down to what is in the Bill. I do not see why he is not prepared to do that. His answer was one which I think any parliamentary draftsman would give him, which is that nothing hangs on them because the words do not reappear elsewhere—but that does not remove the need for a definition.

The other point comes back to what the noble Baroness, Lady Chakrabarti, has been saying about the combination of subsections (3) and (5). I find them really quite sinister. During the passage of the REUL Bill, we debated the need for parliamentary scrutiny in the face of an aggression by the Executive to reform the whole body of retained EU law without parliamentary scrutiny. Here we are again: the Executive assuming to themselves control over the convention without recourse to the courts. Indeed, there are other provisions in the Bill which exclude any kind of judicial scrutiny at all. That is taking matters a very long way and setting an uneasy precedent.

I would much rather this whole clause was taken out for these reasons. They give rise to real concerns about where this country is going, and indeed where legislation of this kind is going, in the future.

My Lords, I wonder whether I could come back to some of the questions the noble Lord failed to answer after the first debate, perhaps understandably in the desire to have a dinner break. Perhaps now he could apply himself to some of those questions.

First, could he please tell me which part of the refugee convention explicitly authorises a country to refuse to even hear the asylum request of a person who arrives on its shore? I would like to hear which bit of the convention says that that is a legitimate thing to do. The answer is not, I am afraid, to go into this rigamarole about returning to the first country they were in.

Secondly, the noble Lord said that nothing in the Bill requires the Government to take action contrary to our international legal obligations, but does he not agree that large parts of the Bill empower the Government, without further recourse to Parliament, to act contrary to our legal obligations? I would be grateful for an answer on that point too.

My Lords, my noble friend Lord German has clearly set out why Clause 1 should not be stand part of the Bill, supported by, among others, the noble Baroness, Lady Chakrabarti.

The Bill is about depriving a particular group of people of their human rights. That is disgraceful. The impact assessments provided by NGOs that my noble friend cited show that the operation of the Bill will be hugely expensive and create a permanent underclass, unable to work and dependent on the state.

I asked the Minister at Second Reading, and I ask him again: when will this Committee receive the Government’s impact assessment? I am not talking about the equality impact assessment; I am talking about the financial impact assessment. Or do the Government consider that an impact assessment is unnecessary because they agree with the impact assessments that we have been provided with by NGOs? The noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Hannay of Chiswick, both highlighted the questions that they asked on the previous group, to which the Minister did not provide a satisfactory answer. Perhaps he will take the opportunity to answer those questions now.

My Lords, I will just add my voice to the requests from various noble Lords across the Chamber for specific answers to these specific questions that have been raised; I think the Committee deserves those answers.

My Lords, Clause 1 sets out the Bill’s overarching purpose and provides an overview of the provisions in the Bill. The purpose of the Bill is to prevent and deter illegal migration and, in particular, migration to the UK by unsafe and illegal routes, by requiring the removal from the UK of individuals who arrive in breach of immigration control.

Subsection (2) then summarises the key provisions of the Bill that advance this core purpose, including the duty on the Secretary of State to make arrangements for the removal of persons from the UK who meet the conditions in Clause 2.

The numbers arriving on small boats in 2022 exceeded 45,700, and, as I set out at Second Reading, the Bill is essential to deal with these illegal, dangerous and unnecessary channel crossings. Putting the purpose of the Bill front and centre, right at the start of the Bill, will make it abundantly clear to all, including the illegal entrants themselves, NGOs, the courts and others, what Parliament’s intent is in enacting this Bill. As subsection (3) provides, the subsequent provisions in the Bill should be interpreted by the courts and others in line with this statutory purpose. Again, it is incredibly helpful to make this explicit on the face of the Bill, although I should add that subsection (3) simply reaffirms the established principle that the courts and others should interpret the Bill to deliver its purpose.

To assist this purpose, Clause 1 also disapplies Section 3 of the Human Rights Act 1998. As I have already explained in the previous debate, the disapplication of Section 3 will ensure that the Bill’s provisions will be interpreted to meet the legislative intent of Parliament, rather than strained interpretations by the courts to achieve compatibility with convention rights.

The noble Lords, Lord German and Lord Paddick, asked about the impact assessment. We have already published an equality impact assessment and will publish an economic impact assessment in due course. The noble Lord, Lord German, referred to the purported impact assessment published by the Refugee Council. We do not recognise the assumptions and costs referenced in that document. Any assessment of the impact of the Bill must also acknowledge the cost of not proceeding with it. Our broken asylum system is costing this country £3 billion a year, and over £6 million a day in hotel costs. This cannot continue. The noble Lord also seems to be labouring under an assumption that Clause 1—

The noble Lord has made two points. I am particularly asking about this sentence in the Government’s ECHR memorandum—so the Government’s position. It says at paragraph 1.5 about the removal of Section 3 of the Human Rights Act:

“This does not affect the Government’s assessment of compatibility of the Bill with the Convention rights”.

Article 5 of the convention clearly states:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court”.

So is the paragraph in the memorandum compatible with what I have just read out? If so, it means that when people are detained, they will be able to take their cases to a court in this country.

The answer to the question, if I have understood the noble Lord, is yes, but I think he misinterprets the purpose of Section 3 of the Human Rights Act. It is not the clause by which the articles of the European Convention on Human Rights are reflected in UK domestic law. Section 3 of the Human Rights Act invites a court to construe parts of other domestic statutes or secondary legislation compatibly with convention rights. It does not mean that this is the mechanism by which convention rights are actionable in UK law, which is the standpoint that I think the noble Lord, Lord German, appears to suggest is the basis for his point. I fear that, as a matter of legal analysis, I think that to be wrong.

The noble Lord also seems to be labouring under an assumption that Clause 1 somehow upsets the separation of powers. It does not. It simply makes it clear that in interpreting this legislation, judges should seek to advance the purposes of the Bill. The Bill, and actions taken under it, are still clearly capable of review in the courts, and individuals can seek to prevent their own removal by making a suspensive claim. So, the courts are still involved, and regulations are still subject to approval by Parliament. I hope the noble Lord can rest assured that on closer inspection, this Bill leaves our separation of powers undisturbed.

I also want to pick up on a point made by the noble and learned Lord, Lord Hope, who suggested that the Bill prevents human rights challenges. This is simply not the case. The Bill provides for two kinds of challenges that would have the effect of suspending removal. Other legal challenges, whether on European Convention on Human Rights grounds or other grounds, are not precluded, but they do not suspend removal. As I have indicated, Clause 1 makes the purpose of the Bill crystal clear for all to see. This will help to guide all decisions made by officials and immigration officers, Ministers, the courts and others in giving effect to the Bill. I commend the clause to the Committee.

My Lords, I wonder whether the Minister can help me on this. The “strained decisions” of the courts is a phrase that has been used at least three or four times this evening. As a former judge, I find that difficult to understand. I would like some elucidation as to what is meant by “strained decisions” and what examples there are.

The context of a strained decision, as the noble and learned Baroness will be aware, are circumstances where there is an ordinary, natural reading of a statute but a judge feels constrained to interpret the words of a statute in a particular way to give effect to a convention right. As the noble and learned Baroness is aware, this is a fairly obvious application of the term, and it is quite usual for such—perhaps more difficult—interpretations to be described as “strained”. I can certainly identify a number of examples, and I will write to the noble and learned Baroness in relation to them.

My Lords, the Minister is a persistent non-answerer of questions; I am a persistent asker of questions. The two questions I asked—I will repeat them at dictation speed if he wishes—were echoed by the Liberal Democrat Front Bench spokesman and the Labour Front Bench spokesman. I think we are due a reply to both those questions. Does the Minister have the answers, or do I have to repeat the questions?

The noble Lord does repeatedly ask questions, and I repeatedly answer them. As he identifies, there is a difference in interpretation of Article 31 of the refugee convention. I entirely appreciate that he does not accept my interpretation; and I do not accept his. That is where we are. It is not a rigmarole. This is a matter of position and legal analysis, and I am afraid that this is the Government’s position.

And the second question, please?

I believe I have answered both the noble Lord’s questions.