Illegal Migration Bill

Debate between Lord Hannay of Chiswick and Lord Hope of Craighead

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

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.

[Lord Hannay of Chiswick (CB)]

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.

Retained EU Law (Revocation and Reform) Bill

Debate between Lord Hannay of Chiswick and Lord Hope of Craighead

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I added my name to Amendment 27, in the name of the noble Baroness, Lady McIntosh of Pickering, and I am grateful to her for putting it down and for what she said.

I am sure the Minister will remember that, when we mentioned time limits and sunsets on Thursday, I agreed with the noble Lord, Lord Hamilton of Epsom, that it was sensible to have a sunset in view of the task set before us. The question is whether the sunset is in the right place. This amendment addresses that issue. The point is that the Government are trying to move too fast without having done the homework in the first place to establish that the sunset is one that they could meet.

Last Thursday, the noble Lord, Lord Wilson of Dinton, said that the Government should “do the work first”. As he put it:

“The right thing to do is for the Government to withdraw the Bill, go away and do the work, and decide what they want to keep, what they want to amend and what they want to abolish, and then tell Parliament so that it can debate and scrutinise what the Government want to do—and it can be a proper process with consultation. That will take longer, but the Government are taking on a very big job with huge complexity and scale.”—[Official Report, 23/2/23; col. 1774.]


I do not suppose the Government will withdraw the Bill, but the fact is—it has been staring us in the face ever since we started these debates—that the job that they are taking on is immensely complex. However hard they try to pretend otherwise, they seem to be making it up as they go along—the figures keep enlarging, indicating that the necessary work was not done at the outset, before the timetable was decided upon.

The Bill had its First Reading in the House of Commons on 22 September 2022. All the signs are that even a reduced or very preliminary version of the information that is now on the dashboard was not yet available. The Government seem to have been playing catch-up ever since they became aware of the questions being asked of them. To introduce a Bill with a sunset clause without having arrived at a clear understanding at the outset of the scale of the task that all four Governments are being asked to undertake is, to say the least, bad planning. The noble Lord, Lord Wilson, said that it was “lazy government”, and one might also say that it is bad government.

Mention was made of Clause 2 and the extension of the sunset clause providing an escape clause, but it is a carefully framed and narrowly drawn provision that requires an understanding of the legislation, or the descriptions of the legislation, that is to be put into the provisions allowed by Clause 2. It has to be specified; it does not allow for a general let-out just because the work has not been done on time and unknown instruments are yet to be discovered—if you have not discovered them, you cannot specify them. So this is not a complete answer to the problem that the very strict and early sunset, set from the outset of the Bill, is trying to solve.

The solution that the noble Baroness has offered, which I agree with, is to extend the sunset to a later date. It is worth mentioning that there is reason to be concerned about the same time limit in Clause 12, which gives power to restate retained EU law, but it is subject to the provision in subsection (7) that

“No regulations may be made under this section after the end of 2023”,


which is exactly the same date that the noble Baroness, Lady McIntosh, directed her amendment at. These two clauses march hand in hand, and if a government amendment is made to Clause 1, as I suggest it should be, one should also be made to Clause 12.

I hope that the Minister will reflect carefully on the sunset clause. An extension of it, even by a year, would provide a much better timetable to which to work, given the enormity of the task being faced. I very much support this amendment, and I hope it will be supported across the Committee.

[Lord Hannay of Chiswick (CB)]

My Lords, I will speak in support of Amendments 26 and 27. Amendment 26 moved by the noble Baroness, Lady Ludford, is about consultation. You can have your views on the value of consultation, the amount of time taken up by it and so on, but it is a normal practice in legislating in our time. To move away from it, which is what the Government will do with the replacement provisions they may move forward, seems aberrant and contrary to all normal practice.

The trouble is that the two amendments are a bit linked, because if you accept Amendment 26 it is even clearer than it is now—it is clear beyond peradventure—that you are not going to get through all that by the end of this year. I can see why the Government are driven to refusing to commit themselves to consultation, because it simply cannot be done in the time available. In my view, that is an argument in favour of Amendment 27 in the name of the noble Baroness, Lady McIntosh of Pickering. I hope the Government can give some ground on the consultation issue; otherwise, we will probably get some legislative proposals that not only are very hasty but have not been tested by the people to whom they will be applied. That seems entirely contrary to our practice these days in bringing forward legislation.

On Amendment 27, I find it very odd that the Government are clinging to the sunset of the end of 2023. It seems unrealisable—some would say suicidal—and it will bring nothing but discredit on the Government when the chaos that is caused actually supervenes. In any case, whether you think that or not, just reflect on something that the noble Lord, Lord Benyon, said to us in the debate on the last group of amendments. He told us that four teams of officials are working on deciding which of the instruments to be caught by the cut-off should be postponed until 2026 and which should go ahead. If you removed the 2023 sunset, you would save those four teams all their work; all they would need to do is work out what to do by 2026—or, as the noble Baroness suggests, by 2028. I am less sure of that; to my mind, it would be quite sufficient simply to remove 2023 and to leave 2026, as it is in the legislation. That offers a reasonable amount of time to carry out an exercise.

It also demonstrates that those of us tabling or supporting these amendments are not refusing to replace European Union law. Quite the contrary—we understand the basic logic behind what is being done, but we find that the timing is absurd and damaging to our economy. I hope that the Minister will respond positively, both on consultation and on removing the 2023 sunset, even if he does not find 2028 very beguiling.

European Union (Notification of Withdrawal) Bill

Debate between Lord Hannay of Chiswick and Lord Hope of Craighead

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, perhaps I can make my position clear. I think that we have four different attempts to find a solution to a problem that we are all looking for. For me, it would be neater if I made my points on Amendment 17, before others introduce their solutions. I am very much in sympathy with most of what appears in Amendment 17, but I share quite a lot of the difficulties that the noble Lord, Lord Howard, expressed, although perhaps not exactly for the same reasons. I will explain myself a little more.

At Second Reading, I made the point that there was a respectable argument that only Parliament has the constitutional authority to authorise the act of concluding an agreement with the EU or the act of withdrawal, if that is what the Government seek to do. For that reason, I respectfully suggest that it is in the Government’s best interests, for their own protection, to look for a form of words that will provide them with the answer to any possible challenge that might be made along lines that would impede progress towards a final agreement. It was with that view that I was searching for some kind of solution to the problem. I said at Second Reading that I would not seek to put forward an amendment myself and that it was more for the Government to try to find a way of doing it, which it is perhaps still open to them to do.

I will explain my views on proposed new subsections (1) to (3). As the noble Lord, Lord Pannick, has explained, the Government have given an undertaking. David Jones said in the House of Commons:

“First of all, we intend that the vote will cover not only the withdrawal arrangements but also the future relationship with the European Union. Furthermore, I can confirm that the Government will bring forward a motion on the final agreement, to be approved by both Houses of Parliament before it is concluded”.—[Official Report, Commons, 7/2/17; col. 264.]


There are three elements in that undertaking, all of which find their place in subsections (1) to (3) in the proposed new clause. However, I have to say that I have a quarrel with the wording. Clause 1 of the Bill, as I mentioned at Second Reading, is beautifully crafted in the simplest possible language. I am troubled by the fact that, if you cast the undertaking in the framework that you find in Clause 1, you can produce that undertaking in four lines instead of 16. Just from the point of view of the aesthetics of drafting, I would have thought that it would be proper to try to use the undertaking as a basis for an amendment. The amendment would be very simple: another four- line amendment, which would fit neatly into the character of the Bill. It would provide the Government with the protection that I suggest they need and would produce the answer to the point made by the noble Lord, Lord Pannick, with which I entirely agree, about the sovereignty of Parliament. I believe that the sovereignty of Parliament is absolutely paramount in reaching an agreement.

I do not want to elaborate on this point because I agree with everything that the noble Lord, Lord Pannick, said, apart from the wording, which I suggest might be more attractively put. As he might recognise, I am adopting a tactic that advocates adopt in court: if you are addressing a judge, trying to find a way of formulating your proposition, and the judge comes out with some form of words that is not exactly in accordance with it but is in accordance with what you are driving at, it is quite a good tactic to pick up his words, as it is more likely that he will accept your answer. I am just adopting that tactic, as we have this there on a plate before us. You draw together the two things: the language of the undertaking and the interest that the Government have in getting the thing in the Bill for their own purposes. The undertaking that the Minister gave in the House of Commons was not given lightly. We can all understand that it would have been carefully worded and approved by somebody a good deal higher up the line of government than the Minister who was giving it. It really is a gift to adopt those words and get it into the Bill in that language.

I respectfully suggest that it would be wiser to detach subsection (4) from subsections (1) to (3), because we can grapple with subsections (1) to (3) for the reasons that I have given, but subsection (4) raises problems. I do not want to go over all the ground but, through a simple reading of the wording, you can see immediately the difficulty that it runs into. First, it tries to combine two different situations, in that it talks about “the termination” or termination “unilaterally”. I presume that when it talks about termination the first time, this is where both sides are unable to reach an agreement and there is a complete breakdown between both sides. If that is the situation, I, for the moment, cannot understand what can be done. There is no point in coming to the Government and asking for it to be approved, because you cannot get back to the negotiation table. It is a Humpty-Dumpty situation: Humpty-Dumpty has fallen off the wall and you cannot put the bits together again. So I cannot understand that part of the amendment.

The second part talks about terminating unilaterally. Although I can understand what that situation might be, the problem is that subsection (4) requires the Government to come to both Houses for prior approval before they can do that. You can imagine a situation where the Houses say, “We are not satisfied, go back and have another go”, and then we have the neverendum situation that has been referred to—going round and round in a circle with no way out.

[Lord Hannay of Chiswick]

I am most grateful to the noble and learned Lord for giving way. I was following with great interest his ratiocination until he got to the point about neverendums. As the noble Lord, Lord Kerr, has made clear, there cannot be a neverendum, because the two-year guillotine comes down. The only way to get beyond the two-year guillotine—and this answers the point that the noble Lord, Lord Faulks, made—is by the agreement of all 27 member states and the United Kingdom. If the United Kingdom refuses a prolongation of the two-year period, then it cannot be prolonged. So can we please drop the references to neverendums and just address whatever problems the noble learned Lord has with the wording of subsection (4)?

[Lord Hope of Craighead]

I entirely understand the point that the noble Lord is making, but the trouble with subsection (4) is that it does not mention the two-year period—we do not know what period we are talking about. That is one of the problems with it. It does not think through to the factual situation that would arise in the situation that is being addressed.

I do not at all underestimate the importance of finding a solution to the point that this subsection seeks to address; I am in sympathy with it. I just say that it is not suitably worded and it should be rethought. It is for that reason that I suggest that we should not try to struggle to put the two things together. We should separate out subsections (1) to (3) and adopt my solution, which I need not repeat, as to how they might be simplified and made more attractive and then think again about subsection (4). We can find a way to address exactly the particular situation that it seeks—of separating out the unilateral termination from the bilateral situation—and then try to find ways of meeting that. I do not need to elaborate, but these are the points that I wish to make in broad sympathy with what Amendment 17 is seeking to achieve.