Illegal Migration Bill

Baroness Fox of Buckley Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, first, I apologise for not having been able to participate in the Second Reading of the Bill. I support Amendment 4 very strongly because I believe it goes to the heart of the problems presented by the Bill.

The list of the international conventions which we should not infringe is pretty long and very important. I will start with the Convention on the Rights of the Child, which is perhaps sometimes a little overlooked in debates. The noble Baroness, Lady Lister, spent some very valuable time explaining why the Bill will contravene some of our obligations there. I had the honour of sitting beside the late Baroness Thatcher on the day she signed the Convention on the Rights of the Child— 28 September 1990. I can remember that as it is my birthday. I do not think she would have been terribly happy with legislation that cut across an international convention she had signed. I would like to hear from the Minister when he winds up how he answers the criticisms made by UNICEF, which is the body set up by all of us to adjudicate whether or not countries are living up to their obligations under the convention. I would like him to answer the question of the areas of the Bill which appear to be in contravention.

Then there is the refugee convention, which has been referred to on several occasions. The Minister has tried on previous occasions to say that there is nothing in the refugee convention being countered by the Bill, but I am afraid that, like many other statements he has made on the matter, it is a bit like the Red Queen in Alice. He is saying, “It is so because I say it is so”; that is not usually a convincing argument. I would like to hear from him which explicit provision of the convention allows us to extinguish the right of someone on our soil to claim asylum.

Of course, we have the right to reject that claim; if we do so, and if they cannot be sent back to their country of origin due to a risk of torture and death, we have to find an alternative place to send that person. I would like to hear what explicit provision in the refugee convention permits us to extinguish the right to claim asylum—not to have it, but to claim it.

A lot has been said about the European Convention on Human Rights. I will not weary the Committee with much more, except to say that the route down which the Government will go seems clear. They might say that they do not intend to get into a position of confrontation with the European court and so on, but they are either bluffing—and bluffing does not usually work terribly well—or they are setting off down a slippery slope, which will lead us into direct confrontation with the European Convention on Human Rights and with the European Court of Human Rights in Strasbourg.

If we do that, we put at risk a substantial and extremely important chunk of the trade and co-operation agreement with the European Union. For that to fall away would be to have jumped out of the Northern Ireland protocol pan into the fire of losing a large chunk of justice and home affairs legislation, on which we worked together with the European Union.

Why do all these international complications matter? I would suggest that they matter a great deal because our Ministers—I applaud them for it—are standing at the Dispatch Box and going to international meetings, and they are saying that Britain stands for the rules-based international order. We are spending a lot of money and providing a lot of weapons—quite rightly so—to Ukraine to uphold the rules-based international order; but the list of obligations in Amendment 4 is a substantial part of the rules-based international order. If we contradict those obligations, what credibility will we have when we go around the world trying to uphold that rule? Not much, I would think. I would not fancy going to the countries of the global South and saying, “You really must take a stronger line on Ukraine”, to be told, “You say you are supporting the rules-based international order; well, here is a list of areas where you are breaking it”.

This is a serious matter that goes way beyond the responsibilities of the Home Office itself. Like others who have spoken in this debate, I do not wish for one minute to suggest that unlimited immigration is a good thing—that we do not want to stop the boats and so on. That is, frankly, not serious; it is just debating. I hope that, when the Minister replies to this debate, he will take on some of these international points and answer them in detail, with precision, and in a way that can convince us. Until that point in time, I remain a strong supporter of Amendment 4 and hope that it will stand in the Bill.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I apologise that I did not get to speak at Second Reading. I misread the Order Paper and thought that the day started with Questions. However, I listened to all the speeches and I certainly got a sense of the mood of the House; I note that, perhaps, that mood is at odds with the mood beyond the House. A previous point was made about unanimity; well, unanimity can be a cause for celebration but it can also be an echo chamber.

However, there are specific problems in the Bill that undoubtedly need to be tackled during scrutiny in the House of Lords. They need to be tackled if the Government are to fulfil their promise to the electorate to get to grips with controlling the borders of our country—controls that people feel are being flouted by an inability to stop the small boats. If this House can ensure that the Bill works, all to the good.

One aspect of that is that we are going to need some clarity about what and who will be affected by the Bill, and why. In that context, I am sympathetic to Amendment 1 in the name of the noble and learned Lord, Lord Hope of Craighead, because it is a valiant attempt to provide a definition of illegal and unlawful migration and it could be helpful in improving the public debate on the issue, which often gets in a muddle. So often when the issue of channel crossings arises and people say that they are illegal crossings, they are scolded and told that they are not illegal and that they ought to know the law better. If there is a way of clarifying what the law is, all to the better, because that can be frustrating. Many people feel they are being gaslit on the question of the law. Amendment 1 may give us some clarity, but achieving such clarity probably cannot be done just via definitions.

There is certainly an impression outside this House— I am sure that people will put me right—that whole swathes of lawyers, along with NGOs and their legal advisers, provide those in the boats with legal get-out clauses and exemptions such that, frankly, it looks like an organised system to game the system, and that is coming not from the people in the boats but from the legal minds that are sympathetic to their cause.

I can completely understand why anyone from many of the countries that they are travelling from would want to live in the UK and to improve their circumstances, but by any reasonable definition, many or at least some of the people in the boats are not refugees in need of asylum, even if they are desperate to improve their standard of living to get away from countries that they do not want to live in. I understand that they can be encouraged to follow a script to find a way to stay in this country—we can empathise with the desire to do that—but we can also note that, frankly, that tests the bounds of legality, and in the process there is a serious danger of discrediting, for example, what we mean by modern slavery, which I think is being exploited, and what we mean by legitimate asylum status.

I wonder what the noble Lord, Lord Best, would make of the legal rows that happen within the legal and judicial community about definitions—what words mean. It is not as though if you put it down it is always clear. We keep hearing about eminent lawyers, fine minds and so on. Believe it or not, among those fine minds, there are eminent lawyers who disagree with each other. I listened to a lively row between two fine, eminent legal minds about the legal interpretation of Article 31 of the refugee convention. One read it to say that refugees must come directly from a place of danger —that is, not France—present themselves immediately, show good cause for their illegal entry and so on. Then the other person explained that coming directly, among some judges, would mean having come through other countries. Anyway, the row went on and I am not saying I understood it all, but it is not as though, every time, great legal minds give a sense of legal certainty. All this legal confusion can and does lead to cynicism that people are illegally breaching border controls, and that illegality is not being tackled. There is a danger that this can discredit the rule of law itself. I certainly agree with the shadow Immigration Minister, Stephen Kinnock, who has talked about the whole process being slowed down and clogged up by legal challenges and the problems that that causes.

In a way, my question to the noble and learned Lord, Lord Hope is: even if we establish a clear legal definition, how do we tackle the various loopholes and spurious claims that can create incentives for illegality which we cannot deny happen? Adults claiming that they are children when they are adults in order to stay, destroying papers proving country of origin and so on—are we just to say that that never happens?

--- Later in debate ---

[Viscount Hailsham (Con)]

Is the noble Baroness really suggesting that this country should depart from treaty obligations without much of a qualm?

[Baroness Fox of Buckley (Non-Afl)]

Having no qualms is something that I would never do, but I am also suggesting that having qualms, or using those qualms, to undermine what the British public would like to do is something that other people should have qualms about. I think that people are tearing their hair out outside of here being told, “You cannot do that; you may have voted for that, but that cannot happen”. When international treaties are used in that instrumental way—which is the way I think they are being used—that is difficult.

May I ask noble Lords to put aside the specifics of this Bill just for one moment? I know that people are very emotional about this Bill, but what if, on another topic, the UK Government—perhaps another Government, not this one, whom more people in this House might be sympathetic to—brought in a different Bill? Just imagine if such a worthy Government, with a popular mandate, tried to bring in a radical, novel, innovative law; for example, enhancing workers’ rights or improving women’s reproductive rights—things that I would support. Just imagine if that Government tried to bring that Bill in and it got to the Lords, where they were told, “You cannot do that because there are all sorts of international treaty clauses that prohibit you doing it”. Imagine your frustration: would you break your promise to the electorate in that instance? I just want us to acknowledge that asking the Government to break a promise on the small boats—

[Baroness Chakrabarti (Lab)]

Would the noble Baroness like to remind the Committee which limb of the constitution takes responsibility for negotiating and revising treaties on the world stage? Is it the judiciary? Are they the wicked people who run off, committing us to all these international obligations? Is it parliamentarians who go and negotiate these instruments that she is finding instrumental, or is it the Government who negotiate, renegotiate and, in some cases, even walk out of international obligations?

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I do not think there are evil people involved in this and I have not gone down the moral/immoral route. I am concerned, genuinely, with ensuring that the electorate and citizens of this country do not feel that parliamentary discussion uses international treaties as an excuse to not do what they anticipate that Parliament was asked to do. For example, this could be about the abolition of the Vagrancy Act. Let us be honest; a lot of promises have been broken recently. I have heard excuses made for why we have not yet abolished that Act. I have heard excuses for why we can no longer get rid of tuition fees, and for why leasehold will not be abolished—

[Lord Balfe (Con)]

The noble Baroness will recall that we had a referendum to leave the European Union. Many of us opposed that, but it was the clear will of the democracy of this country that we left. Surely, on these international obligations that we are saying we are bound by, if the demos—the people of Britain—feel that they wish not to be bound by them, that is perfectly legitimate. We have to find a way to carry the wishes of the people into legislation and not use international agreements to say that the wishes of the people must be ignored.

[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—