Illegal Migration Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

I am coming to an end. I understand the noble Lord’s point and I am endeavouring to explain that I think those international agreements are being used in a particular political way on this issue. I have suggested that breaching promises to the British electorate—I was trying to give some examples across party lines, so that nobody would think I was having a go at any one party—is leading to cynicism and bitterness in the electorate. The low turnout at the local elections was an indication of the fact that many people feel politically homeless.

I do not necessarily support the Bill. I want it to be scrutinised by this House, but I felt that the amendments I was referring to were almost avoiding scrutiny by simply ring-fencing the whole nature of the Bill and saying, “You can’t do that because of international treaties”. That would seem to render us even trying to scrutinise the Bill a waste of time and it will lead to even more cynicism about the lack of democracy. That is my point and it has nothing, as it happens, to do with Brexit or the EU. Although the desire to control one’s borders and one’s laws was undoubtedly part of that, I was not making that point in this instance.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords—

[Lord Cashman (Lab)]

My Lords—

[Lord Hodgson of Astley Abbotts (Con)]

I think it is this side.

[Lord Cashman (Lab)]

It is this side; an independent has just spoken.

[Lord Hodgson of Astley Abbotts (Con)]

Speaking independently, I think it is this side, but I will give way to the noble Lord.

[Lord Cashman (Lab)]

My Lords, I thank the noble Lord for giving way and therefore I will be brief. I am not a lawyer, but I come to these matters from a very personal perspective.

I stand here as someone who, for most of my life, has faced discrimination and illegality. Why? Because the views of a majority were used against people like me enjoying the equal protection of the law and freedom from discrimination. I believe it is incumbent on anyone in public life to challenge public opinion, to lead public opinion and to have the courage to do the right thing for the long term, and never follow the short term.

I am grateful for the many briefings I have received on this from the Refugee Council, the Red Cross, the Law Society and many other eminent organisations. I think it is the first time that I have read from such reputable organisations that a Bill should be rejected on grounds of legality and constitutionality.

I particularly welcome Amendment 4 in this group because it states, quite rightly, our legal obligations. It neuters the power of Clause 1 to mandate that the rest of the Bill be in conformity with what I believe is an attempt to deny the right to seek asylum and refuge in this country.

I am lucky that I was born in the United Kingdom. I have to stand back and say: what if I had not been? What if I had been born in a country where I could not be myself, love someone of the same sex or have a different political opinion or a different religion? What if I was that person? What would I do to value my family, my life or my liberty? I would seek refuge.

To leave your home is not an easy option. I say to the Government: do not represent it as a rush through Waitrose with a three-wheeled shopping trolley. It is about life and death. Yes, there are young men who have the courage to step into a leaky boat at the end of their journey and cross the English Channel. They cross the English Channel so that they can find a place where they might belong, where they might be able to use the language or learn the language or seek out others who have similar cultural and social values. What about them, coming to earn money to send back home to liberate their families from poverty and oppression? Are they not worthy of being given the right to a fair hearing and the equality of the law?

Finally, as I said, I was born in the United Kingdom, but I am told that my family left Spain as Jews in the 16th century and travelled across Europe for the centuries that followed in search of refuge—in search of asylum. Some ended up in Ireland, where they had enough of persecution because of their religion and converted to Roman Catholicism. That branch of my family came here, and I come from that branch of the family. When I was old enough to understand that my religion was being used against me to deny me my rights and to deprive me my place and my right to love, I became a born-again atheist.

The noble Baroness, Lady Fox, referred to the speeches she had heard. She might have heard me refer to a brilliant speech in a play by Shakespeare, which I am not going to give to your Lordships this afternoon.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am pleased to follow the personal and moving speech from the noble Lord, Lord Cashman. One always has to bear in mind the personal nature of many of the discussions and speeches we are hearing today.

I share one thing with the noble Lord: like him, I am not a lawyer. Therefore, to talk about the rule of law—which, in essence, is what this group of amendments is about—is to put one’s head into the legal lion’s mouth, but I am proposing to do that because I think that some important points need to be made from outside the courtroom. Before I get to the substance of my remarks, particularly on Amendment 4, I will set in context my strategic support for the Bill and the direction of travel, which I explained at Second Reading, because it will colour the background to the remarks I will make now and the remarks I hope to make in future stages of the Bill.

We are meeting on a very important afternoon. In 2021, we gave the right to remain—not the right to enter—to 504,000 people. That is equivalent to a city the size of Cardiff. Tomorrow, at 8 am, the ONS will release the figures on the right to remain for 2022. Unless the press has got it completely wrong, we will have given 700,000 people the right to remain in this country in one year. That is equivalent to a city the size of Newcastle. There must be a serious question as to whether that rate of population growth is sustainable, particularly within the confines of an already pretty crowded and small island.

I am sorry that the right reverend Prelate the Bishop of Durham is not in his place. Although we had many confrontations on the borders Bill last year, one thing we could agree on—and I suspect that there will be general agreement in Committee—is that people who are here legally, and who have legal rights to come here, need to be welcomed and given all the advantages and rights that we enjoy. The creation of two classes of citizens would surely be fatal for our country and our society. So, when we allow people to come here permanently, we take on a considerable debt requirement for investment in various aspects that make our lives suitable and happy.

The right reverend Prelate and I would also agree, I think, that, when these rights are being given, responsibilities are simultaneously imposed. If you wish to take out of our society, you must put back in —as indeed we all must. But, if the Committee accepts that we cannot, with advantage, build a Cardiff one year, a Newcastle the next year and so on into the future, we have to find ways to restrict the inflow. By the way, the unofficial figures for the first four months of this year will show higher than 700,000 if it goes on at that rate. The 67.3 million people of our settled population—18% of whom come from minority groups —deserve no less. Therefore, as I listen to noble Lords explaining how the Bill should be removed, I think they need to think about how we tackle the question of a country which has taken on 1.2 million people— 2% of its population—in the last two years.

[The Archbishop of Canterbury]

I entirely accept, and everyone who has spoken so far has agreed, that we have to control migration. I do not think there is any argument about that, but does the noble Lord accept that of that 700,000 last year, or whatever the number turns out to be exactly, the Bill will cover only 45,000? The Bill is not about overall immigration.

[Lord Hodgson of Astley Abbotts (Con)]

The most reverend Primate is exactly right: we have failed to start the conversation across the country as to what the number we can reasonably absorb is. Once we have had that conversation, the second stage of the conversation is: how does that number divide up between, as the most reverend Primate has just referred to, people who are coming here to fulfil jobs we cannot do and people who are coming here because they have money or ideas or are brilliant academics? That way, the people of this country would have some understanding of what is in store for them. I certainly accept that 40,000 people—but it may be 80,000 people—is only a fraction, a small part, of the problem that we face.

I turn, without further delay, to the rule of law. I need to begin by stating that I am an enthusiastic supporter of the rule of law, a rule of law that interprets the views of Parliament and provides the framework under which our society can operate with confidence, our freedoms are protected and our property rights are respected. Indeed, at various times since I joined your Lordships’ House, we have had debates on the importance of the rule of law which I have been pleased to participate in. At this point, Members of your Lordships’ House who are of a judicial turn of mind will no doubt be pleased by what I have been saying. I am afraid that what I am about to say is going to be rather less acceptable.

As I have explained, I am not a lawyer, but I think the rule of law is too important to be left entirely to lawyers to speak about and interpret; there are wider societal consequences. I do not wish to get involved in legal niceties and drafting. I have heard the Government’s view, expressed by my noble friend the Minister, that the UK will be in compliance. I have heard endless briefings about how the UK will not be in compliance. Let me explain from a non-lawyer’s point of view what I think the man on the Clapham omnibus thinks, which is that the rule of law is not a stand-alone, immutable entity. To be effective and accepted, it needs to be well integrated into the civil society which it seeks to protect. Specifically, in my view, to carry public confidence the rule of law needs to meet four tests: it needs to be relevant; it needs to be open to scrutiny; it needs to be applied in accordance with the original purpose of the law; and it needs the informed consent of the British people. I shall deal briefly with those points.

The first is relevance. Of the list in Amendment 4 of five conventions, two are 70 years old, one is 60 years old, one is 30 years old and only one was signed this century. The noble Baroness, Lady Chakrabarti, proudly read them out. In 1950, in the aftermath of the appalling events of the Second World War, the challenge of refugees, in terms of numbers, scale and distance, bears no relation to the situation we face today. Of course, I accept that there are areas of read-across from 1950 to today, but to see a direct comparison in every aspect stretches public credibility.

The second is openness and scrutiny. Again, as a non-lawyer, I expect there to be open hearings, with pleadings by both sides, followed by a detailed reason for reaching a particular decision by an identified judge or judges. I am not clear that this has invariably been the situation in some of the key aspects that form the background to the Bill.

The third is applicability. I was an enthusiastic supporter of the Modern Slavery Act—which is not on the list in Amendment 4—but now I see it being misused as a means to frustrate the proper operation of our immigration system and so devalue and undermine the original purpose of the Act. I find it hard to believe that the increase in case load from an anticipated 3,500 cases per annum to the current 17,000 cases last year can all be based on genuine circumstances.

Fourthly and finally is informed consent. I return to a point I covered a bit earlier: successive Governments have never been courageous or honest enough to explain candidly to the British people the implications of these conventions. It has been easier to present the country with a series of faits accomplis and then wonder why there is a degree of public cynicism and toxicity about the process.

I hope that my noble friend the Minister will reject amendments that place excessive weight on the narrow interpretation of the rule of law. I respectfully suggest that Members of the Committee who have amendments in this group reflect on how the outcome of their decisions and discussions may serve across the country to undermine the credibility of and public confidence in a concept—the rule of law—which we can all agree lies at the heart of our society.

[Lord Kerr of Kinlochard (CB)]

My Lords, I largely made at Second Reading all the points I would have wished to make in this debate, and they were admirably made earlier by the noble Lord, Lord Hannay. I look forward to the Minister’s response to the challenge from the noble Lord, Lord Carlile of Berriew, to construe for us the meaning of the Section 19(1)(b) statement. The Minister made a sporting shot at it at Second Reading when he said:

“I think it is fair to say that there has been a misunderstanding of the effect of such a statement. We have designed a scheme that is novel and ambitious”.


One can say that again. He continued:

“as a result, we have made a Section 19(1)(b) statement under that Act. This simply makes it clear that we cannot say definitively that we will win a challenge in Strasbourg. However, we are confident that Strasbourg will respect the will of Parliament and our domestic court processes. We make no apologies for taking this approach. This is what the situation demands and what the British public expect”.—[Official Report, 10/5/23; col. 1921.]

I find that a slightly sinister statement. It seems to carry the ring of, “And the court had better find for us, or else”—and we all know what the “or else” is that is talked about in some quarters. To be fair to the Minister, he did not try to argue that, in a dualist state like us, breaching international law is a legitimate action, but some he cited in his speech are so arguing.

I say to the noble Lord, Lord Hodgson of Astley Abbotts, that if one thinks that these conventions are a bit old and wants to change them, the way to go about that is to call for an international conference and put down proposals for amendments to the conventions. The refugee situation and the problems of asylum are not less now than they were when the conventions were created, so the need to defend and perhaps develop them—there is a case for trying to develop them—is more important now than it was even when they were first set up.

I strongly support Amendment 4. I also support Amendment 2.

--- Later in debate ---

The noble Lord, Lord Hodgson of Astley Abbotts, talked about 700,000 people coming to the UK potentially to settle. The 700,000 is the net migration figure. According to the Daily Telegraph—and I do not know where it got the figures from—the Government gave 1,370,000 people visas to come and settle in the UK, not 700,000.

[Lord Hodgson of Astley Abbotts (Con)]

I draw the noble Lord’s attention to the fact that he is conflating two different purposes. One is rights of admission—that is for the 1.3 million—the 700,000 have the right to remain. They are quite different, and the 1.3 million do not impose the burden on us in so far as 1.3 million people, but 700,000 people here permanently need to have, as I have said, houses, schools, jobs and all the other stuff which we expect and which they must have if they are fully paid-up citizens of this country.

[Lord Paddick (LD)]

I will apologise to the noble Lord if I am wrong, but my understanding is that the 700,000 is net migration. That is the number of people whom the Government have given permission to come and live here—1,370,000—minus the number of people who have left the UK, so not exactly what the noble Lord has said at all. It is an issue. As the most reverend Primate said, this Bill deals with 45,000 compared with the 1,370,000 the Government have given permission to come here.

Similarly, we support Amendment 148 in that none of the Bill’s provisions should come into force until the Secretary of State makes a statement that this Bill is compatible with the European Convention on Human Rights.

To the Minister, I would say that with noble friends like the noble Viscount, Lord Hailsham, and the noble Lord, Lord Kirkhope of Harrogate, the Government clearly have serious questions to answer. In answer to the noble Lord, Lord Horam, and the noble Baroness, Lady Fox of Buckley, whatever the solution to the overall immigration issue is, it cannot involve this country riding roughshod over its international obligations. As a commander said to me when I presented my solution to a very difficult problem in the police, I do not know what the solution is but it is not this.