Illegal Migration Bill

Lord Hope of Craighead Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I will speak to Amendment 4, in my name. I appreciate the need to move as fast as possible and I shall be as short as I can. This amendment, which appeared in Committee and is renewed today, would require the Secretary of State to provide

“guidance as to how the provisions of this Act are to be read and given effect in a way that is compatible with the Convention rights”.

The amendment follows a recommendation by the Constitution Committee prompted by the provisions in Clause 1(3), which tells us that

“so far as it is possible to do so, … this Act must be read and given effect so as to achieve the purpose mentioned in subsection (1)”.

Clause 1(5), the crucial subsection, states:

“Section 3 of the Human Rights Act 1998”—


which gives the function of deciding what the convention rights mean for the courts—

“does not apply in relation to provision made by or by virtue of this Act”.

The Committee said that the Government’s position requires explanation. Of course, there are more fundamental objections to these provisions, which are the subject particularly of Amendment 5. I do not want anything I may say in the next few minutes to be taken as undermining in any way the point made by the noble Baroness in favour of her amendment, but the fact remains that the Government’s position on how these provisions are going to work needs to be explained, and no sufficient explanation has been given. Clause 1(5), after all, is a major incursion into the way the convention rights are currently protected. This is a matter of particular concern given the extent to which the Bill affects so many people, including children and the victims of modern slavery, who are extremely vulnerable to government action. As I said last time, they are being sent into a desperate kind of no man’s land where the ordinary protections we enjoy are being denied them.

In replying to this amendment in Committee, the Minister said that my amendment was at odds with Section 6 of the Human Rights Act which, as he put it,

“should be our guiding light here; it affords the necessary clarity for those seeking to give effect to the provisions in the Bill”.—[Official Report, 24/5/23; col. 921.]

I simply did not understand that response and I still do not; indeed, I think it makes the case for guidance of the kind I am talking about all the more strongly. Without going into details, Section 6(1) requires public authorities to act compatibly with the convention rights, while Section 6(2) disapplies it in two circumstances. Yet the fact that the Minister is contemplating disapplication of Section 6(1) suggests to me that he is contemplating that there will be breaches of convention rights flowing from the provisions of the Bill. That seems quite inconsistent with the ECHR memorandum, which says that the clauses it identifies as engaging the convention rights are capable of being applied compatibly.

I am not going to enlarge any further, but it seems to me that that explanation does not make any sense; it is contradictory to the memorandum and it is no answer to the point I was seeking to raise. The fundamental point takes me back to Amendment 5: the short answer to the difficulty created by that explanation is to vote in favour of Amendment 5, which I will do.