Illegal Migration Bill

Debate between Alistair Carmichael and Jeremy Wright

Committee stage
Tuesday 28th March 2023 Commons Chamber

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

I rise to speak to amendment 182 in my name and the names of other hon. and right hon. Members. It makes a simple point, which I hope the Minister can accept.

The Bill focuses on those who arrive in the United Kingdom in the circumstances described in clause 2 of the Bill. Essentially, it is those who arrive in the UK after 7 May this year without leave to do so and who have passed through safe countries on the way. The Bill not only provides for their removal and detention, but imposes lifelong consequences on those who enter in this way, including permanent exclusion from the granting in future of various types of short-term entry into the UK, of indefinite leave to remain and of citizenship—all set out in clauses 29 to 34.

Despite the Bill’s clear and important deterrence objective, its effect is not as simple as, “break the rules and you’re banned for life”. It recognises, rightly in my view, that exceptions have to be made for exceptional cases. In relation to all the future applications that I have mentioned, the Bill provides for the Secretary of State to be able to grant the application, if it is necessary to do so, to comply with the UK’s obligations under the European convention on human rights, or under other international agreements to which the UK is a party.

Given the focus of yesterday’s discussions on removing the ECHR from decision making in other parts of the Bill, I will not dwell on the significance of the ECHR in this part of it. However, I will perhaps say in passing that the Government may want to reflect on how attitudes to ECHR obligations in different parts of the Bill now fit together.

My focus though is on the other ground for allowing, in exceptional cases, the granting of a shorter-term entry clearance to those otherwise excluded from that because they had previously entered the UK under the terms of this Bill. That is when the Secretary of State considers that

“there are compelling circumstances which apply in relation to the person which mean that it is appropriate to do so.”

That is in proposed new section 8AA of the Immigration Act 1971 introduced through clause 29(3)(3).

In relation to circumstances and applications for some entry clearances, the Government think that it is reasonable, beyond what is necessary to meet their international obligations, to allow some applications in “compelling circumstances” from those who would otherwise be refused. I think that that is very sensible. However, such provision for granting applications in “compelling circumstances” does not exist in relation to applications for citizenship, and it seems to me that that is not sensible.

Incidentally, I must confess that I have noticed too late that the “compelling circumstances” exception is also not in the Bill in relation to applications for indefinite leave to remain, and I should really have tabled an amendment to the same effect regarding them at clause 29(3)(5). I hope the Minister will indulge me and consider that point, too.

My amendment 182 would add the ability for the Secretary of State to grant, exceptionally, an application for citizenship where there are “compelling circumstances”. So, what might such “compelling circumstances” be? As I say, the consequences of an entry into the UK under the terms of the Bill are lifelong. The entry in question may take place at any age, which means that someone brought into the UK on a small boat within the terms of the Bill as a baby—something over which, of course, they would have had no say—would be excluded from entering and remaining in the UK, including as a citizen, at any age thereafter, except in the exceptional circumstances as defined in the Bill.

For example, that person who arrived first as a baby could not, 20 or 30 years later, become a naturalised UK citizen as a result of marriage to a UK national. Such a scenario would, I think, be likely to constitute compelling circumstances and the Secretary of State should have the power to grant citizenship in such cases.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

The right hon. and learned Gentleman is making an interesting and worthwhile point, but in practical terms, knowing as we do the ruthless efficiency of the Home Office, how likely does he think it is that it would ever marry up that baby coming to this country without papers with the person seeking to come 20 years later?

[Sir Jeremy Wright]

The right hon. Gentleman makes a reasonable point, but I think we have to pass legislation in this place that assumes a degree of competence on the part of all Government Departments, and we must do that with straight faces throughout. In any event, it is important that Secretaries of State, as I know he would recognise, have the powers they need to do the right thing in the right circumstances. That is what I am seeking to provide the Secretary of State with here.

Of course it is right to say that such cases would be rare, but I believe the discretion should exist to deal with them when citizenship is applied for, or indeed when indefinite leave to remain is applied for, as it is when shorter-term leave to enter is sought. That is what my amendment will achieve, and I hope the Government will be able to accept the force of it.

Finally, let me say this: if this Bill is to succeed in its objectives, it must have both political and legal credibility. I agree with those who said yesterday that such credibility depends on having clearly available, safe and legal routes for entry to the UK in parallel with the sanctions this Bill imposes on those who do not use them. I look forward to what the Government will bring back on this point on Report, but the Bill’s sanctions will only have credibility if they allow for the fair treatment of exceptional cases. I hope my amendment will improve the Bill in that regard.

[Mr Carmichael]

It is a pleasure to follow the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright). To pick up on his last point, the truth of the matter is that we do not need legislation for safe and legal routes. If I thought for one second that the Government were acting in good faith when they made references to safe and legal routes, I would have a lot more time for the contents of this Bill, but I see no evidence of that good faith. He and his right hon. and hon. Friends may have to reflect on that when they consider their position at later stages of the Bill. Everything in this Bill is all about electioneering and politics; it has nothing to do with the creation of a safe and legal route or a workable system of migration, or indeed with stopping the small boats coming across the channel, as we all want to do.

I particularly enjoyed the contributions from the right hon. Members for Chingford and Woodford Green (Sir Iain Duncan Smith) and for Maidenhead (Mrs May). I served in government with the right hon. Lady for five years, and I do not think we need to wait for the 30-year release of papers to learn that relations between her and some in my party were not always easy in that time. Having said that, equally we do not need to wait for the 30-year release of papers to know that relations between her and some in her own party, possibly in the Treasury and No. 10, were not always easy in those years.

Of course, relationships in Government are not always easy. However, listening to the right hon. Lady’s speech today and her forensic dissection of those parts of this Bill that impact on the Modern Slavery Act that she brought through, I found myself almost weeping with nostalgia for her time in the Home Office—for the intellectual rigour, the political substance and the determination to do what was right by some of the most vulnerable people living among us.

National Security Bill

Debate between Alistair Carmichael and Jeremy Wright

Report stage
Wednesday 16th November 2022 Commons Chamber

[Sir Jeremy Wright]

I hope my right hon. Friend is wrong, but the Government have to consider it for exactly those reasons. It would be not only wrong but profoundly embarrassing if the United Kingdom were to find itself in that position.

I hope the Minister can clearly explain the difference I outlined, because the only difference I can see is that it could be argued that “acting reasonably” may be applicable to more circumstances and, therefore, offer arguably broader protection than “acting in the proper exercise of a function.” We have heard it argued that the current defence is not sufficiently legally certain but, from experience, legal certainty is an elusive quarry. The concept of reasonableness is very familiar to the courts in a variety of contexts. Anyone looking for absolute certainty in every case will not find it, because all cases are different and must be considered on their merits.

The second area I want to mention is amendments 8 to 12, in my right hon. Friend’s name, dealing with the potential reduction of damages in national security proceedings where a successful claimant has committed wrongdoing related to terrorism. It is worth noting in passing that such wrongdoing is not limited to convictions for criminal offences, and we need to understand from the Minister what level of wrongdoing in this context would suffice to put someone’s damages in jeopardy.

The operative measure is clause 58(3), which says

“the court must decide whether, in light of its consideration of the national security factors, it is appropriate for it to reduce the amount of damages”.

So we need to know what “appropriate” means—or should mean. Surely it should mean appropriate in all the circumstances of the case and in the interests of justice overall—it would be helpful if the Minister could confirm that—and that there is no presumption in favour of reduction, nor is there an instruction to reduce damages where the factors set out are present. That is how I understand the clause, but I would be grateful if he could confirm it.

Lastly, I wish to discuss amendment 38, which would remove clause 84 and stands in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). That clause provides that, save for in very limited circumstances, civil legal aid would not be available in any case where it otherwise would be to those previously convicted of terrorism offences. My concern is that this is a very significant shift in the principles applicable to legal aid. At the moment, we award legal aid on the basis of the merits of the case and the financial circumstances of the individual applying, never before doing so on the basis of their previous character. This change would be very significant and it would need significant discussion, which, by definition, given the clock in front of me, it is not going to get today.

We need to be clear about what we would be saying if we made that change. We would be saying that whatever happens to that individual—however blatantly their rights may be infringed, in cases wholly unrelated to their previous conduct—the state will not assist them to defend their rights as it otherwise would, because of a previous criminal conviction. I am not sure that would be right and I am not sure that if it is, it makes any sense to specify only terrorism offences, rather than any other serious criminal offending. But whether it is right or wrong, we need to discuss it properly and not have it tacked on to this Bill, which is about something completely different, with very limited time to discuss it.

[Mr Carmichael]

It is a pleasure to follow the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), who did the House a great service in bringing to us in four minutes what could have been the subject matter of a whole afternoon’s debate in itself, thus highlighting the total inadequacy of today’s proceedings for proper scrutiny of this Bill. I fear it will be filleted when it goes to the other place, and it deserves to be.

I added my name to new clause 8, but it is not available to debate and discuss. So much of what is in the Bill risks offering protection to people who do the wrong thing in the service of our country, while those who seek to expose that wrongdoing are to be left completely unprotected. Others have said it before, and I say it again now: this was the perfect opportunity to provide protection of that sort. If not now, when are going to see it?

It is a matter of significant regret that in an area of public policy where there is a substantial and natural consensus across the political parties, we have come to this stage in the proceedings of the Bill with so much division and disagreement, albeit a disagreement between those on the Treasury Bench and the Government Back Benches, not just between the parties. I do not think anybody in this House would not want to promote the security of our nation, and we all understand the complex and difficult situations in which pursuing that work often places people.

We also know, because it is human nature as much as anything else, that in these difficult and complex situations it is often possible to persuade oneself of just about anything. When that happens, it is necessary that somebody, somewhere, can be held accountable for it, because we are a country that believes, still, in the rule of law, and these things matter. That is why my colleagues on the Liberal Democrat Benches and I are so concerned about the content of clause 27 and clauses 79 to 83.

As I mentioned in my intervention on the right hon. Member for Haltemprice and Howden (Mr Davis), the cases about which we know and are rightly shocked, we know about only because these matters came into the public domain by mere happenstance. It is eminently possible that the circumstances of Belhaj and Boudchar would not be known to us today but for the fact somebody who happened to be walking around Gaddafi’s palace during the fall of his Government found the papers that revealed the extent to which rights had been deliberately traduced. It is surely wrong that there should be protection for people who behave far outside British standards, notwithstanding Government policy and indeed the law.

The same is true in relation to clauses 79 to 83, which remain the subject of massive controversy. I am certain that they will be revisited, hopefully with more detail and vigour than we have been able to give them today, because they do not belong in a Bill of this sort. I hope that, when the Bill eventually comes back to this House, it comes back without them.