Illegal Migration Bill

Debate between Baroness Hamwee and Lord Sandhurst

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Hamwee (LD)]

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.

[Lord Sandhurst (Con)]

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”.