Illegal Migration Bill

Lord Carlile of Berriew Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I shall speak to Amendment 4 in this group, in my name and those of the noble Lords, Lord Paddick and Lord Kirkhope of Harrogate, and the noble and learned Lord, Lord Etherton. I have also added my name to Amendment 2 in the name of the noble Baroness, Lady Ludford, and I have some thoughts on Amendments 1, 3 and 5 in the name of the noble and learned Lord, Lord Hope of Craighead. Amendment 84, in the name of the noble Lord, Lord Alton of Liverpool, is partly duplicative of mine, but focuses specifically on international anti-trafficking provisions. In as far as it adds the EU anti-trafficking directive to the Council of Europe Convention on Action against Trafficking in Human Beings, I support it; however, I think we should settle on a single, holistic list of obligations that, crucially, includes the precious refugee convention and its principles of non-penalisation, non-discrimination and non-refoulement, which the Government seem so intent on violating by this obscenity of a Bill.

I turn briefly to the amendments in the name of the noble and learned Lord, Lord Hope. I thank him for his explanation earlier. Contrary to the explanatory statement for Amendment 1, I cannot quite agree that this does anything for so-called legal certainty. To the contrary, it seems a rather circular amendment, in defining “illegal migration” according to the conditions for removal in the Government’s own Clause 2. As the noble Baroness, Lady Meacher, suggested in her very pithy intervention, as a matter of international law, someone who qualifies for protection under the 1951 convention can never have been illegal.

Noble Lords who have come to the Committee sensibly armed with copies of the Bill might care to compare its Short and Long Titles. It has become quite fashionable in recent years for Short Titles to become creatures of political spin, but parliamentary counsel guard the Long Titles—so crucial for scope, for example —rather more jealously. While the Short Title is the Illegal Migration Bill, and our graveyard humour alights on the adjective accurately describing the second noun, the Long Title refers instead to

“persons who have entered or arrived in breach of immigration control”.

As the refugee convention was effectively the world’s apology for the Holocaust and the insufficient and inconsistent protection given to those attempting to escape the Nazis, the convention always contemplated some genuine refugees having to escape persecution and enter places of safety by clandestine means and in breach of ordinary controls.

That is why

“in breach of immigration control”

is accurate and appropriate for the Long Title and “Illegal Migration” is not appropriate in the context of refugees, who, as a matter of declaratory law, will always have been refugees, even before they were given their status—hence the excellent point made by the noble Baroness, Lady Meacher.

The probing Amendment 3 from the noble and learned Lord, Lord Hope, helps to draw attention to contradictions in the Government’s public positions around the ECHR compatibility of the Bill. As the noble Baroness, Lady Ludford, pointed out, the Section 19(1)(b) statement on the tin indicates one thing—that no statement that the Bill is compatible can be made—but aspects of the ECHR memorandum of ingredients suggest another. However, the medicine prescribed by the noble and learned Lord and the noble Lord, Lord Anderson of Ipswich, is far too weak a remedy. When a Government are so intent on violating rights to protection from torture, slavery and death, allowing the same Government to issue guidance on interpreting their offending legislation is like handing burglars the keys to the house. Therefore, the noble Baroness, Lady Ludford, is right to seek to remove Clause 1(5), which seeks to disapply Section 3 of the Human Rights Act, which, as we have heard, requires that legislation be interpreted compatibly with the European convention so far as possible. That is why I added my name to her Amendment 2.

Amendment 4 in the names of the quartet of the noble Lords, Lord Paddick and Lord Kirkhope of Harrogate, the noble and learned Lord, Lord Etherton, and myself goes further. It does not just remove subsection (5); it replaces the whole of Clause 1 with the requirement that this legislation shall not require violation of any of the key international legal obligations that we fear would otherwise be violated by it, namely the 1950 European Convention on Human Rights, the 1951 UN refugee convention, the 1961 UN Convention on the Reduction of Statelessness, the 1989 UN Convention on the Rights of the Child and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings. I am very proud to stand with noble Lords from four corners of the Committee whose experience includes high-level legal adjudication, law enforcement, and Home Office ministerial duty. What brings the senior judge, police officer, Conservative former Immigration Minister, and human rights lawyer together around the amendment is our desire that the United Kingdom remains committed to the international rule of law.

As we heard, last week, alongside other European leaders, the Prime Minister signed the Reykjavík declaration. It begins:

“We, Heads of State and Government, have gathered in Reykjavík on 16 and 17 May 2023 to stand united against Russia’s war of aggression against Ukraine and to give further priority and direction to the Council of Europe’s work … We reaffirm our deep and abiding commitment to the European Convention on Human Rights and the European Court of Human Rights (ECHR) as the ultimate guarantors of human rights across our continent, alongside our domestic democratic and judicial systems. We reaffirm our primary obligation under the Convention to secure to everyone within our jurisdiction the rights and freedoms defined in the Convention in accordance with the principle of subsidiarity, as well as our unconditional obligation to abide by the final judgments of the European Court of Human Rights in any case to which we are Parties”.


Mr Sunak said:

“We remain a proud European nation. And we must work together to defend the values we all hold so dear … Because we know what we can achieve together. Just look at this Council’s extraordinary legacy: protecting human rights, abolishing the death penalty in Europe, supporting media freedom and championing democracy across Central and Eastern Europe after the Cold War”.


Those fine words from the Prime Minister must not be contradicted by the Home Secretary’s illegal Bill.

Noble Lords will no doubt explore the many violations of our common and constitutional law tradition, as well as international law, via the anxious scrutiny of this Committee. At the very least, the Bill violates Articles 2, 3, 4 and 14 of the European convention in failing to protect victims of torture and trafficking and those at risk of death, and in allowing the Government to pick and choose which refugees from different countries it finds palatable from time to time. The Bill fails to protect stateless people and children in the context of its provisions on removal, detention, accommodation and age assessment. In the words of the UN High Commissioner for Refugees, it amounts to

“an asylum ban—extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how genuine and compelling their claim may be”.

This must be one of the strongest condemnations of a democratic and rights-respecting nation ever uttered by the commissioner.

If Ministers seek to argue that the Bill does not violate these various linchpin treaties, many of which the United Kingdom played a leading role in negotiating, they should have no problem with the requirement that the Bill be read in that way by Ministers, officials and the courts. If, instead, Ministers wish to argue that it is time to renegotiate these obligations, fair enough. Let them try to do so with such reserves of soft power as they think we have left. In the meantime, in contrast with Russia and other pariah states, let them respect the law.

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Baroness. I support her Amendment 4 for the following reason. If I was a person in a country far from here who faced torture and very serious discrimination, possibly for his or her political views or opposition to the Government, or possibly for their sexual orientation which is an issue in quite a number of these cases, I might look up what the United Kingdom stands for in international law before I make my decision as to whether to seek asylum in the United Kingdom or some other country. And what would I read? With a couple of clicks on the internet, I would read exactly what is set out, or aspired to, in Amendment 4 tabled by the noble Baroness. In my view, that is the principled position to take.

I also understand completely—I think—the views expressed by my noble and learned friend Lord Hope when, if I can be permitted to use a little bit of transatlantic language, he pointed out certain uncertainties about the Bill in the speech with which he opened the first debate.

I want to challenge the Minister to do something he has failed to do—I say this with respect, because he is known for his clarity in this House. I challenge him to return to the very first page of the whole Bill, where the statement under Section 19(1)(b) of the Human Rights Act is set out. The first sentence reads:

“I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes … to proceed with the Bill”.


Does that mean, “I don’t know if the provisions of the Bill are compatible with the European Convention on Human Rights”? Does it mean, “I know that it is not compatible with the European Convention on Human Rights”? Or does it mean that some parts of it are compatible with the European Convention on Human Rights and others are not?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

The noble and learned Lord is absolutely right; it has no legal effect. Can I put this another way? The Minister can make a Section 19(1)(b) statement and the court can find that the Act is compatible. The Minister can make Section 19(1)(a) statement and the court can find that it is not.

[Lord Carlile of Berriew (CB)]

Does the noble Lord not agree that the Section 19(1)(b) statement on this Bill is very different from the Section 19(1)(b) statement on the Communications Bill? I am sure that he has looked at it. Secretary of State Tessa Jowell made the following statement:

“I am unable (but only because of Clause 309) to make a statement that, in my view, the provisions of the Communications Bill are compatible with the Convention rights”.


By making that statement, Tessa Jowell made it clear that in a massive Bill there was only one clause that she could not make such a statement about. In effect, she stated that everything apart from Clause 309 was compliant with the Human Rights Act. That is how it was understood; we can all read the debates. Is it not incumbent upon the Government, when they make a statement as vague as that on this Bill, to explain what is and what is not compatible with the Human Rights Act?

[Lord Wolfson of Tredegar (Con)]

The noble Lord is making a political point. It may be good politics or bad politics, but whether the Government want to do that or not, my focus is on Section 19 of the Human Rights Act, which is very clear:

“A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading … (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights … or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill”.


We could have a nice debate about whether the statement in the Communications Act 2003 was consistent with Section 19, but that is not my point. My point today is simply that we cannot legitimately criticise the Minister for making precisely the statement that Parliament told him to make in Section (19)(1)(b) if he cannot make a Section 19(1)(a) statement.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am reluctant to give the noble Lord a private lecture on this, but I will set out a very short answer. I will be blunt but, I hope, legally accurate. The short answer to the noble Lord’s question is yes; we could do it. International treaties are not part of our domestic law. As far as our domestic courts are concerned—please let me finish and I will give way—if we were to legislate completely contrary to an international treaty, our domestic courts would have to abide by the Act of Parliament, because that is domestic law. Of course, that would put the UK in breach of the international treaty. It is not something I would recommend, but the noble Lord asked me a direct question about how the two interrelate, and that is a necessary consequence of being a dualist state. International treaties are not part of domestic law, unless and until they are incorporated.

[Lord Carlile of Berriew (CB)]

This could develop into a really interesting argument, I am afraid—between lawyers. The noble Lord just referred to the dualist theory, which of course is very important, but, in reality, international treaties are not usually entered into legislation because they are made under the royal prerogative. But that does not make them any less binding.

[Lord Wolfson of Tredegar (Con)]

I started my remarks by saying that international treaties are extremely important and that we should always legislate consistently with our international obligations, except in the most unforeseen and unusual circumstances. But that is not the question I was asked by the noble Lord, Lord Hannay. We are a dualist state. That is why we should object to these amendments, which seek to incorporate treaties by the back door.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I am very grateful to the noble Baroness. I was indeed about to mention her in my next sentence. Let me address that point and repeat what I said earlier. The phrase “illegal migration” in the Short Title of the Bill refers to the fact that the act of entering otherwise than in accordance with immigration controls was criminalised by an Act passed by this House and the other place in 2022. That is why it is correct to describe such people as “illegal migrants”—because they did not enter in accordance with immigration controls. That is the long and the short of it. The interpretation of Article 31 is irrelevant as regards that point of certainty.

I turn now to Amendment 2, tabled by the noble Baroness, Lady Ludford. This amendment seeks to strike out subsection (5), which disapplies Section 3 of the Human Rights Act 1998. The disapplication of Section 3 will ensure that the Bill’s provisions will be interpreted to meet the legislative intent of Parliament, rather than the strained interpretations imposed by the courts to achieve compatibility with convention rights. As my noble and learned friend Lord Wolfson, King’s Counsel, pointed out, Section 3 is an unusual provision in UK law and there is, in principle, no reason why it cannot be excluded in cases like this.

It is our view that Parliament and the Government are better suited to address the sensitive policy issues involved in this legislation. It is therefore only right that Section 3, which requires the court to interpret the provisions to achieve compatibility with convention rights, must be disapplied so that courts interpret the law in accordance with the purpose of the Bill. Through this, we are ensuring that the balance between our domestic institutions is right and that Parliament’s intent is clear to the courts.

As the noble and learned Lord, Lord Hope, explained, Amendment 3 flows from the recent report of the Constitution Committee. I am very grateful to that committee for its scrutiny of the Bill. We are studying its report carefully and will respond in full ahead of Report. As for the genesis of the amendment, the noble and learned Lord explained that the Constitution Committee considered that more explanation was needed around the Section 19(1)(b) statement that I made on the introduction of the Bill in this House.

Notwithstanding that the noble Lord, Lord Kerr, quoted from my Second Reading speech on this issue, I reiterate the point I made at that stage: a Section 19(1)(b) statement means not that the provisions of the Bill are incompatible with the convention rights, only that we cannot be certain that they are compatible. The assertion suggested by the noble Lord, Lord Coaker, in his speech a moment ago, that the statement amounts to a concession that measures in the Bill are incompatible, is not the case. The purpose of Section 19, as my noble friend Lord Wolfson set out, is that it is a statement that the provisions of the Bill are incompatible with convention rights and we cannot be certain that they are compatible. It is of course a measure in a piece of legislation passed by the last Labour Government and therefore something that the noble Lord, Lord Coaker, would no doubt place great weight on. Those are the terms that we find in Section 19 of the Human Rights Act.

[Lord Carlile of Berriew (CB)]

Does the Minister not think that it might at least be a courtesy to the Committee to set out which of the provisions, in his view and that of the Home Secretary, are or are not compatible with the convention? That would help us to determine the quality of the legislation that is proposed.

[Lord Murray of Blidworth (Con)]

I will come to address the issues of the broad applicability of the Section 19(1)(b) statement. There is no requirement in the Act for a statement to identify any particular section. Indeed, I do not want to wade into the waters that were nearly ventured into during the interventions on my noble friend Lord Wolfson’s speech about whether the Section 19(1)(b) statement in relation to the Communications Bill, as it then was, was in accordance with the statute.

In any event, I return to the principle of Section 19(1)(b) statements. It is right to say that they have been made by Governments of all stripes, not least in the Communications Bill, as we heard earlier in the debate, but also by the coalition Government and by Nick Clegg in the House of Lords Reform Bill 2012. As my noble friend Lord Wolfson rightly indicated, issuing a Section 19(1)(b) statement is a legitimate choice given to Ministers under the Human Rights Act. Why else would the Act provide for such a course?

As I have said, previous Governments have issued such statements, and clearly that has not caused our international reputation to collapse. More broadly, I encourage the Committee to approach questions of international reputation with a proper perspective. The world can be in no doubt that we are defenders of rights and liberty, the most obvious example being our leading support for Ukraine.

Requiring guidance to be approved by Parliament on how the Bill’s provisions are to be interpreted within the meaning of the Human Rights Act is unnecessary. On 7 March the Government published a memorandum addressing issues arising under the ECHR, and a supplementary memorandum was published in April in relation to the government amendments tabled for Report in the Commons. These memoranda set out a provision-by-provision ECHR analysis, so I submit that the Government’s position is clear, and the noble Lord, Lord Carlile, will find the answers to his questions about what sits behind the Section 19(1)(b) statement in those memoranda.

It will undoubtedly be necessary to provide Home Office staff, immigration officers and others with appropriate guidance to support the implementation of the Bill. It would not be appropriate for such routine operational guidance on the implementation of a particular Act to be subject to parliamentary approval.