Illegal Migration Bill

Debate between Lord Hacking and Baroness Ludford

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Hacking (Lab)]

Well, my Lords, I do not know whether the noble Lord thought my speech about sympathy was repetitious. I have not heard it yet today, and I give those words of sympathy with great sincerity.

The important thing is to look at the state of Albania. Albania was a communist state under a particularly vicious dictator, Hoxha, until the mid-1980s. Great steps have been made since then, and when the USSR broke its ranks many Albanians worked very hard in democracy. But things have not always gone right. For example, in 1997 the Government of Berisha, who was then the president of the country, collapsed in the wake of pyramid schemes and widespread corruption. More recently, in February last year the president was subject to impeachment proceedings which were stopped only by the Albanian constitutional court.

I mention that because in the number of years that I acted as an international arbitrator and conducted arbitrations arising out of activities in the former countries of the USSR, time and again one came across very serious corruption which led to feuds and sometimes to heinous blood feuds. Corruption is a matter of great concern, and one wonders exactly how the list of safe states was drawn up; in that list are other countries of similar background to Albania—Bulgaria and Romania to name two. One looks at the Nationality, Immigration and Asylum Act to see what the test is, according to that Act, for the Secretary of State to take their decision. In new Section 80AA(3) it says:

“The Secretary of State may add a State to the list only if satisfied that … there is in general in that State no serious risk of persecution of nationals of that State”.


How strictly has that been applied, if it has been applied at all?

As my noble friend Lady Lister said, there is a lot of evidence of significant and outstanding issues in Albania relating to corruption, trafficking, blood feuds, discrimination and violence against the LGBT community, and stigma and discrimination against ethnic Roma and Egyptian communities and so forth. There are real grounds to be concerned whether, on any definition, Albania is properly placed as a safe country. That view is supported in our own Home Office’s work in 2022 when the UK granted protection status to 700 Albanian nationals, including 60 unaccompanied children.

For all those reasons, I hope your Lordships will feel that they should be on the safe side and remove Albania from the list of safe states.

[Baroness Ludford (LD)]

My Lords, I will speak to the proposition that Clause 57 should not stand part of the Bill. Before I do, let me say that there are various myths arising around this Bill, one of which is that the Government are going to deport vast numbers of people, and another is that speeches from this side of the Committee are repetitious. I think it is regrettable that that sort of claim is being made. I referred at the beginning of proceedings today to the fact that this Bill got almost no scrutiny in the other place. As Dr Hannah White, the director of the Institute for Government, said last night on the radio, it has just come to expect that we will do that job.

Illegal Migration Bill

Debate between Lord Hacking and Baroness Ludford

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Ludford (LD)]

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.

[Lord Hacking (Lab)]

Did the noble Baroness refer to Amendment 32 just now?

[Baroness Ludford (LD)]

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.

Retained EU Law (Revocation and Reform) Bill

Debate between Lord Hacking and Baroness Ludford

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I will speak to the proposal that Clause 12 should not stand part, which is in my name and those of my noble friend Lord Fox and the noble Baroness, Lady Chapman. I will also speak to the proposal that Clause 13 should not stand part, and to Amendment 111, which would require consultation, reasoning, et cetera for proposed restatement regulations.

My noble friend Lady Humphreys quoted the powerful view of the Delegated Powers Committee that Clauses 12 and 13 should be removed from the Bill because they inappropriately delegate legislative powers and appropriate powers that ought to belong to Parliament and be achieved subject to specific primary legislation. That committee brought to our attention, or reminded us of, the delegated powers memorandum, which says:

“This power cannot substantively change the policy effect of legislation.”


The DPRRC says:

“We doubt whether this is correct. Where there is ambiguity—


allowing Ministers to make changes to resolve ambiguities is one of three factors that a restatement is supposedly able to address—

“as to whether policy A or policy B is intended and the legislative restatement emphatically resolves in favour of policy A, the restatement has … made a firm policy choice”.

That view of our committee makes sense. It invited us to ask the Government to explain why none of the law that can be restated under the powers in Clause 12 would instead merit being restated in primary legislation. I hope the Minister will do so in his response.

The committee also draws attention to the powers that Ministers have, I think in Clause 14(6), to reproduce the effects of the supremacy of EU law, the retained general principles of EU law and retained EU case law, to ensure that the restatement has the same practical outcome that existed previously. These three elements are the ones that are otherwise abolished by the Bill; we debated that today in relation to Clauses 3 to 5. So the Government want to bring back, under Clause 14(6), the power for Ministers to reproduce the effects of the things they are abolishing, to ensure that the restatement has the same practical outcome that existed previously.

The DPRRC comments:

“This power may give rise to significant policy questions”,


but they are given to Ministers to answer rather than Parliament. I add to that a suggestion that it will also create legal confusion, because, on the one hand, you have abolished these three elements—supremacy, general principles and retained rights—yet, on the other, Ministers can bring them back. I have not quite worked out how that is supposed to work.

My noble friend Lady Humphreys quoted the fact that the powers in Clause 12 are completely “open-ended”, with

“no requirement for consultation … criteria … or … pre-conditions”.

That explains our Amendment 111, which again seeks to repeat the elements we constantly introduce.

The other thing that Clauses 12 and 13 give to Ministers, in restating REUL in secondary legislation, is the power to use different words or concepts from the original instrument and to make any change considered appropriate. That is rather worrying, and requires the Minister to explain what is meant by “restatement” if the restated law will be different in concept from the original law. To what extent can different words be used before the restatement changes into a new and distinct law? It is no longer a restatement; because different words and concepts have been used, it becomes, in effect, a new and distinct law. When does it morph into a new law, having started off as a restatement? There is quite some confusion on that.

Finally, if I have understood correctly the email from, and blog of, the distinguished legal commentator Joshua Rozenberg, it appears that he has been highlighting the fact that the pensions of some 11,000 serving or former part-time judges were going to be abolished because they relied on EU law. But apparently the Deputy Prime Minister, the Secretary of State for Justice, announced that he was going to save these pensions and that there was no intention to grab them back from affected judges.

I presume that this is the first announcement we have had of what is to be preserved under the Bill. Perhaps the Minister could confirm that. Obviously, I think it is a good thing. I do not think that judges’ pensions, any more than former MEPs’ pensions, should be whipped away. I suspect the Minister might agree on that point. That is a good thing, but we are still fighting for confirmation on things such as water safety, air quality, product safety, employment rights and everything else. When are we going to hear about what is going to be preserved from those other areas of deep concern? I am very pleased for judges, and indeed gratified, but it seems quite odd that we have had an announcement about that but we do not know whether anything else is going to be preserved. Perhaps the Minister could enlighten us in his reply.

[Lord Hacking (Lab)]

My Lords, I support Clauses 12 and 13 no longer standing part of the Bill. Opposition to those clauses has been led by the noble Lord, Lord Fox, and the noble Baroness, Lady Ludford. I support them on the very simple premise that the Government are attempting to sweep all legislation, including primary legislation which creeps up on secondary legislation; in other words, the secondary legislation has been adopted as primary legislation.

Before I go further—and I think I have attempted to do this already—I would like to put right the misconception that the EU law coming into our country was all under the carpet, that it was not considered and endorsed by Parliament. I suppose the Government have not put it quite so colourfully, but they could well say, on that basis, “What’s all the fuss about? The EU legislation arrived under the parliamentary carpet, why are you making all this fuss now?”

I want to correct that misconception. I sat for a number of years on the EC Committee and then the EU Committee in the 1980s and 1990s. I must have had about 10 to 12 years sitting on those committees—it was the same committee but it was renamed when the EC renamed itself the European Union. When I was on that committee, we had very alert clerks and very good relations with Brussels. The result was that when a regulation that caused concern was being considered by the Commission, with great co-operation from the Commission we were shown the draft of that regulation, really in its final form, before it was introduced as a regulation. We would examine it. It happened on a number of occasions; I cannot count the number. Your Lordships’ European Committee considered in detail the regulation, took evidence, wrote a report and sent that report back to Brussels.

I do not want to fancy ourselves too much, but the House of Lords European Committee had a great reputation in Brussels. Of all the parliaments in the union, we were the most constructive. I suppose I have to include whatever the other place was doing. With our good relationship with the Commission, when the Commission read our report it was influenced and changed the drafting of that particular regulation.

Of course, of the many regulations that were brought through when we were in the European Union, I am referring to only a few, but it is an example of how we were involved in the creation of regulations in an influential way.

Retained EU Law (Revocation and Reform) Bill

Debate between Lord Hacking and Baroness Ludford

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Hacking (Lab)]

I interject to make a point that perhaps I did not get over clearly enough earlier. In moving Amendment 42, we would be doing nothing but trying to help the Government and help good governance.

[Baroness Ludford (LD)]

I entirely agree with the noble Lord.

National Security Bill

Debate between Lord Hacking and Baroness Ludford

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I thank the noble Lord, Lord Coaker, for introducing this group. As he noted, I will speak to Amendments 61 and 63 in my name, which are inspired, as usual, by the report of the Joint Committee on Human Rights. My amendments relate to Schedule 6, which applies the conditions for arrest and detention without warrant under Clause 25.

We are concerned that some of the protections in the schedule are not adequate to guard against a descent into somewhat arbitrary detention. The initial period of detention permitted is 48 hours, and there is supposed to be a review at least every 12 hours. There can then be a judicial warrant for up to seven days after the initial arrest, subject to a further extension up to a total of 14 days. Although that judicial part has certain guarantees, there are still elements which cause us concern, including when the detainee and their legal representative may be excluded from parts of the hearing, or an application may be made to withhold certain information relied upon by the authorities. To be denied sufficient information to counter any claims made against them or to be excluded from the hearing are serious moves. Obviously, these themes have been encountered before in anti-terrorism legislation, but we are concerned, for instance, that the use of detention could be based on undisclosed or closed material where the concern relates solely to proceeds of crime.

My Amendment 61 is about where there could be a power to delay allowing the detainee to have a named person—a family member or a friend, for instance—informed of their detention and having the right to consult a solicitor, including where the officer has reasonable grounds for believing that the person has benefited from criminal conduct or where the recovery of property of value would be hindered by allowing access to a solicitor or notification to a named person. These are very serious impediments to accessing basic rights for a person detained without charge. The JCHR feels that, while these restrictions may be proportionate if necessary for imperative reasons of national security, such as to prevent immediate harm to persons, the case is less compelling where the objective is solely asset recovery. Therefore, Amendment 61 aims to delete paragraphs 9(4) and 9(5)—I hope they are still paragraphs 9(4) and 9(5)—of what is now Schedule 6; the moving story which has tripped up other noble Lords also applies to schedule renumbering.

[Lord Hacking (Lab)]

My sympathy lies with you.

[Baroness Ludford (LD)]

And mine with you. I look forward to the debate on Clause 28.

The Government’s response, which we finally received, does not seem very strong. It says:

“The Government considers that, if the matters relate to the proceeds from crime from state threats activity, in most cases this will be highly sensitive information and every effort should be made to prevent the suspect from having any knowledge that our law enforcement agencies are aware of where these proceeds are located.”


I may have missed something, but while the whole Bill is about national security, I am not sure that the condition that the proceeds from crime arise from state threats activity is there. Maybe it is in Clause 25. I ask the Minister to follow up on paragraph 88 of the Government’s response to clarify whether I am being insufficiently on the ball and whether that further condition that the proceeds of crime arise from state threats activity is there. Otherwise, it does not seem to us pertinent that you should be able to withhold information, stop access to a solicitor and stop allowing people to let others know where they are if it is specifically about asset recovery. Important though that objective undoubtedly is, this is a National Security Bill.

On Amendment 63, the contention I make, inspired by the JCHR, is that the reviews of detention without warrant should be able to be postponed only for well-defined and justified reasons. At the moment, it can happen where

“no review officer is readily available”

or

“it is not practicable for any other reason to carry out the review.”

That seems to us illegitimately broad.

In their response, the Government give an example, saying

“these provisions ensure a wide range of instances”—

that is certainly true—

“which might result in a review not being able to be carried out are covered – for example, if the suspect is undergoing medical treatment. It would be impossible to outline every scenario that may impact a review … therefore this approach”,

which I would describe as wide,

“is preferable.”

The example of a detainee undergoing medical treatment does not cover or justify the “no review officer is readily available” reason. It might fall under the other arm—“it is not practicable for any other reason to carry out the review”—if the detainee is ill and is being supported with medical treatment. However, postponing a review because no review officer is readily available is based on a staffing matter; the detainee really should not be put in this position because somebody—the Home Office, the MoJ or whoever—is unable to supply a police officer or whoever else is in charge to carry out the review.

Refugees (Family Reunion) Bill [HL]

Debate between Lord Hacking and Baroness Ludford

2nd reading
Friday 8th July 2022 Lords Chamber

[Baroness Ludford (LD)]

Other wars are indeed going on, and that is why refugees are fleeing, whether from Afghanistan, Sudan or the Middle East.

I regret that the Minister trotted out the “children are being forced to travel and exploited” line. It is rather like the debates during the passage of the Nationality and Borders Act on the right to work, when the Migration Advisory Committee told us there was no evidence that the right to work was a pull factor. There is also no evidence that the ability of a child refugee to bring their nuclear family to join them is a pull factor or used as some kind of anchor. I am afraid the Government are playing into the hands of the criminal gangs by restricting safe and legal routes, of which family reunion is one of the strongest. Many of us in this House, certainly on this side, deplore that the Nationality and Borders Act brings in this restrictive treatment of so-called group 2 refugees, who are going to be in a worse situation regarding rights, including to family reunion. You cannot have it both ways; the Government say they have a broad and generous policy but have brought in an Act which deliberately restricts family reunion rights. I am afraid that what they are saying simply is not true.

Finally, the Minister talked about the burden on the public purse. But how do you know whether child refugees, or any refugees, are going to prosper? The Minister gave me a name about a war, and I will give him a name: Nadhim Zahawi. He came here, apparently at the age of 11, unable to speak any English.

[Lord Hacking (Lab)]

Five.