Illegal Migration Bill

Baroness Chakrabarti Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

Moved by

[Baroness Chakrabarti]

At end insert “, and do propose Amendment 1B in lieu—

1B: Leave out Clause 1 and insert the following new clause—
“Introduction
In interpreting this Act, regard shall be given to the intention that its provisions, and any acts and omissions made as a result, are intended to comply with the United Kingdom’s obligations under-
(a) the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms;
(b) the 1951 UN Convention relating to the Status of Refugees including the Protocol to that Convention;
(c) the 1954 and 1961 UN Conventions on the Reduction of Statelessness;
(d) the 1989 UN Convention on the Rights of the Child;
(e) the 2005 Council of Europe Convention on Action against Trafficking Human Beings.””

[Baroness Chakrabarti (Lab)]

My Lords, I beg to move Motion A1 as an amendment to Motion A. Ministers suggest that our Amendment 1, Amendment 7 as a consequential and Amendment 90 are wrecking and unnecessary. These criticisms are contradictory. If the Government take their international obligations so seriously, why should they be afraid to ensure that those charged with operating this proposed legislation, which clearly impacts on the rights of vulnerable people, understand that Ministers intend not to violate these rights? Why should Ministers have been unable to make a statement of their belief in ECHR compatibility in the Bill?

Alongside that strange logic comes a pseudo-legal argument from the Mickey Mouse school of jurisprudence that even to reference binding international obligations in domestic instruments somehow offends the sanctity of our dualist system. This is nonsense. It is because of our system, whereby international obligations signed by Ministers do not automatically become directly enforceable domestically without parliamentary approval, that successive Governments of both stripes have had to refer to various treaties or their contents in a host of relevant domestic measures. Section 2 of the Asylum and Immigration Appeals Act 1993 expressly gave primacy to the refugee convention. In 2009, in the EN Serbia case, the Court of Appeal found that that provision did not constitute informal or backdoor incorporation or undermine the principle of dualism, which is designed to protect parliamentary sovereignty and not to insulate Governments from their obligations. The Children Act 1989 takes its central best interests of the child principle directly from the UN Convention on the Rights of the Child—two of numerous precedents.

The treaties in our Amendment 1 were chosen by truly cross-party, all-party and non-party consensus for relevance to the people, measures and rights engaged by this Bill. The Government’s real objection, and to consequential Amendment 7 and Amendment 90, is that no one, especially His Majesty’s judges, should be able to second-guess Home Office decisions. That is simply contrary to the rule of law on which any civilised society, let alone a great democracy, must be built. None the less, in the spirit of respectful dialogue, we have listened, compromised and amended our new Clause 1, softening its requirement to require having regard to the various conventions when interpreting the Bill. There is no way that that can now be regarded as incorporation rather than interpretation.

Further, the consequential Amendment 7 is reformulated so that the Section 2 duty to remove a person will stand, notwithstanding an application for judicial review, if a court refuses permission, or even just refuses to make an interim injunction. To respond further to concerns from the other place and the Benches opposite about so-called protracted legal knots, interim relief preventing a removal is to be granted under our new version of Amendments 90 only after the Secretary of State has had a reasonable opportunity to tell a court why this should not happen. Far from being wrecking amendments, these are wholly reasonable compromises to restore some semblance of legality and respect for international obligations, domestic judges and the rule of law. I beg to move.

--- Later in debate ---

As I have said in this House many times, the purpose of these provisions is to prevent people smugglers encouraging fraudulent claims to be children. On the question raised by the right reverend Prelate as to whether Rwanda will provide appropriate care for the children, this matter was extensively canvassed during the Rwanda litigation, and the court was satisfied that sufficient arrangements had been made in the memorandum of understanding. I invite noble Lords to refer to the judgment in that regard. I am very grateful to the right reverend Prelate for his indication that he will not press that amendment to a Division.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords, particularly to the noble and learned Lords who gave their ruling on the backdoor incorporation point. Of course, Section 2 of the 1993 Act was much stouter than either version of our Amendment 1.

Dr King, not a judge but a man of God, famously said:

“It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important”.


Across this House yesterday, we pleaded for kindness. Today, we come with a more modest plea: for the rule of law. I have moved the Motion and ask the House to approve it.

--- Later in debate ---

Moved by

[Baroness Chakrabarti]

At end insert “, and do propose Amendment 7B in lieu—

7B: Clause 4, page 6, line 6, at end insert “if the court seized of the application refuses permission, interim relief or the application.””

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

I beg to move.

[The Deputy Speaker (Lord Beith) (LD)]

The original Question was that Motion D be agreed to, since when Motion D1 has been moved as an amendment to Motion D. The Question therefore is that Motion D1 be agreed to. The matter will be decided by a Division.

--- Later in debate ---

Moved by

[Baroness Chakrabarti]

At end insert “, and do propose Amendment 90D to the words so restored to the Bill—

90D: Page 54, line 3, at end insert “without attempting to give reasonable notice to the Secretary of State so as to allow representations as to why, notwithstanding ongoing proceedings as to the legality of a decision to remove the person, they should nonetheless be removed.””

[Baroness Chakrabarti (Lab)]

My Lords, I understand that Motion T1 is consequential on Motions already passed. I beg to move.

Motion T1 agreed.