Illegal Migration Bill

Baroness Jones of Moulsecoomb Excerpts

Consideration of Commons amendments
Monday 17th July 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I remind noble Lords that this Bill was not a manifesto commitment at the last election; it is rather the extended version of a populist slogan for the upcoming one. That distinction is even more constitutionally significant when the Executive propose to expunge the age-old common law jurisdiction of His Majesty’s courts to issue interim relief in expulsion cases, the judicial practice of considering international obligations, and the Human Rights Act 1998 duty to interpret legislation compatibly with convention rights and freedoms where possible.

Noble Lords, and in particular the noble and learned Lords, Lord Hope and Lord Etherton, rejected the Government’s suggestion that the previous amendment to Clause 1 offended our legal traditions. None the less, we have softened it still further, removing references to “acts and omissions” and intended compliance only in the spirit of dialogue with the other place. Now, it merely requires that those interpreting this measure give regard to the human rights treaties mentioned. Without this amendment, an eventual illegal migration Act 2023 could become effectively exempt from the European Convention on Human Rights under domestic law as soon as its provisions are brought into force.

Again, in attempted dialogue with the other place we have clarified the amendment to Clause 4 to ensure that the duty to remove—so central to the Government’s scheme—is revived the moment a first instance court dismisses an application unless permission to an appeal court is granted. Without this amendment, the duty to remove applicants would continue, even where our higher courts are still considering the safety of a third country such as Rwanda.

The amendment to Clause 52 has been tightened to provide that courts must not only attempt but ensure that they give reasonable opportunity to the Secretary of State to object before granting interim injunctions preventing removal. Without this amendment, no British court would retain its common law power to prevent removal, despite grave risk to a person subject to ongoing legal proceedings. Noble Lords will remember that the Government have already taken the power to ignore Strasbourg interim relief under Clause 53.

In summary, without these amendments, the Government could argue a power, or even a duty, to remove new arrivals—potentially even as we rest this summer—before the Supreme Court hears the Rwanda test case in relation to past arrivals this autumn. That is what is at stake: one of the gravest executive power grabs and abrogations of the rule of law in living memory. That is why the, yes, unelected but more independent Chamber should exceptionally stand firm to protect the constitutional role of our courts and the rule of law.

In a state of sadness and some disbelief that things have come to this in our beloved land of rights advancement, from Magna Carta to the post-war settlement, I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

My Lords—

[Noble Lords]

Front Bench!

[Baroness Jones of Moulsecoomb (GP)]

I would just like to say, if I may, that I am surprised that the Government do not like this amendment. Quite honestly, it strengthens the Bill when it comes to legal procedure, and they would have fewer legal challenges to all their cases if it goes through. They should welcome it, particularly if there is no conflict with international law, as the Minister told us earlier, in order to restore certainty. The Government should support this amendment.

[Baroness Ludford (LD)]

My Lords—