Illegal Migration Bill

Lord Carlile of Berriew Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Cashman (Lab)]

My Lords, I will speak briefly to the amendments in this group. In so doing, I refer your Lordships to my entries in the register of interests, particularly as patron of the AIDS and HIV charity, the Terrence Higgins Trust.

I particularly support the amendments of the noble and learned Lord, Lord Etherton, who brilliantly explained the reasoning behind them. As he says in his explanatory statement to Amendment 105, the current wording of Clause 38(5)(c) is too wide and would preclude

“a human rights claim pursuant to Article 3 of the European Convention on Human Rights”,

which the Government are suddenly clinging on to. It would also preclude a protection claim pursuant to the refugee convention. I am not a lawyer, so I will not dwell too much on those matters; however, I support the argument that what is proposed in this clause is not in conformity with the jurisprudence of the European Court of Human Rights in Strasbourg and not in accordance with the jurisprudence of the United Kingdom.

At the heart of this provision is the removal to the so-called safe countries in Schedule 1. As your Lordships will know, I am not alone in my concerns; they were discussed with great concern on the first and third days in Committee and today. Indeed, the Minister, the noble and learned Lord, Lord Bellamy, tried to reassure me and others that the list was really an amalgam and that the countries, where people who might be subject to discrimination because they belong to a particular social group will be going, might perhaps say, “We don’t want them”. That is a wonderful hypothetical answer, but my reply is: what if a person who is HIV positive is sent to a country, such as Uganda, where that person, if they are lesbian, gay or bisexual, would have to say to their medical practitioner that they are lesbian, gay or bisexual? That medical practitioner, if they did not reveal that information to the Government, would face two years’ imprisonment, while the person receiving treatment themselves could be criminalised. That is just one country from a huge range of countries, not only around the world but particularly within the Commonwealth. Some 80% of the countries of the Commonwealth currently criminalise people because of their sexual orientation and gender identity.

Because of the lateness, I will now take my place. But for the reason I have just cited, and many more, I heartily and unreservedly support these amendments, particularly those of the noble and learned Lord, Lord Etherton.

[Lord Carlile of Berriew (CB)]

My Lords, I will speak in support of both my noble and learned friends, who sit to my right in the Chamber. I am particularly grateful, as I think the whole Committee is, to my noble and learned friend Lord Etherton for the very clear exposition he gave of the law and of the consequences of these provisions which change the law.

I will put my very short analysis of this into “faults” and “conclusions”. Clause 38 is word soup, full of tautology and contradictions—the sort of thing that makes fortunes for lawyers if they can get in front of judges, like my noble and learned friends in the very senior courts, and make esoteric arguments based on an analysis of the text. The word soup is most certainly not a consommé clarified by the use of egg whites, so that you can see through it to the bottom of the bowl. It is more like a sort of mad minestrone, into which the draftsman has thrown every word vegetable that he or she could find.

Let us look at Clause 38(3), where the “serious harm condition” is in inverted commas. I was taught at school never to use inverted commas, if you could avoid it, because they show a weakness in your argument, unless it is a quotation that someone said. It says:

“The ‘serious harm condition’ is that P would, before the end of the relevant period, face a real, imminent and foreseeable risk”.


Supposing we missed out the words “real, imminent and”, what difference would it make if it simply read,

“before the end of the relevant period, face a … foreseeable risk of serious and irreversible harm”?

If one missed out the words “and irreversible”, would it mean less if it read:

“The ‘serious harm condition’ is that P would, before the end of the relevant period, face a … foreseeable risk of serious … harm if removed from the United Kingdom”?


What are they trying to gain by the word soup—the possibility of making bizarre submissions in front of the senior courts in which my noble and learned friends sat?

After those comments, if you were asked, “What does all this mean?” by a lay man who might be up at 10.10 pm looking at parliamentary TV or parliamentlive.tv and fascinated by every word in this debate, you would say to him, “Just go and have a look at Clause 38(5)(c)”, which refers to

“where the standard of healthcare available to P in the relevant country or territory is lower than is available to P in the United Kingdom”.

They—or at least those who were well informed enough to be sitting up at 10.10 pm, watching parliamentary TV—would immediately say, “This is deliberate discrimination against gay men”. What else is this for?

We should be ashamed of ourselves if, at least when it comes to Report, we allow this kind of provision to remain in the Bill and do not help my noble and learned friends to pass their amendments. But I hope that we do not have to reach that stage, because this word soup should seem as ridiculous to our noble friends the Ministers as it does to some of us.

[Lord Paddick (LD)]

My Lords, this has been an interesting, if not bewildering, debate—at least to us non-lawyers. My lay interpretation of the provisions we debated in this group is that they highlight the danger of asylum seekers being removed to countries where they could come to harm by making the level of proof required to suspend removal so high, and by making the evidence required to prevent their removal so compelling—within impossibly short timescales—as to make the likelihood of a successful claim diminishingly small. If it turns out that it is not diminishingly small enough, the provisions allow the Secretary of State to redefine what “serious and irreversible harm” means to make sure that the tap is turned off almost completely.

The noble and learned Lord, Lord Etherton, questioned whether such an approach is compatible with existing law. It is quite clear what the Government are trying to do here: make it impossible for anyone to resist removal from this country under the provisions of the Bill. That is why we do not believe that Clauses 37 to 42 should stand part of the Bill.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, I can be relatively brief. I thank the noble Baroness, Lady Chakrabarti, for introducing her amendments so powerfully and with such knowledge. I agree with her that there is a curious disparity between Clauses 52 and 53, and my proposition is that they should be swept away and should not stand part of the Bill. As she said, the Home Office getting its act together and making decent decisions in the first place would be how to reduce the workload and what the Government seem to think is the overreach of the courts—I do not agree that it is overreach. If you get things right first time, you would not need to keep attacking the courts.

Clause 52 is a straightforward ban on domestic courts granting interim remedies to stop the removal of a person from the UK. We are familiar with this “courts are enemies of the people” stuff. The interim remedies are valuable because they allow the courts to maintain the status quo while a claim is considered. When the harm in question is a violation of human rights, the ability to freeze the situation is valuable. Denying the courts the ability to use interim remedies when justice demands it undermines the guarantees of Articles 2 and 3 of the ECHR. Clause 52 should be removed, and I am glad to say that the JCHR agrees.

Clause 53 is a different animal altogether. It is really rather peculiar, and it takes a strange and circuitous route to block interim measures from Strasbourg, by giving a Minister discretion to decide whether or not to disapply the duty on the Home Secretary to remove the person. Given the negotiations under way over the procedure for deciding interim measures, as reported in the press and alluded to by the noble Baroness, Lady Chakrabarti, this clause appears to be more politics than law. It is strange, given that the Prime Minister was recently in Reykjavik, at the summit of the Council of Europe—and given that the JCHR’s recent report says:

“We welcome the Prime Minister’s recent reaffirmation of his ‘deep and abiding’ commitment to the ECHR”


and the European Court of Human Rights, made at that very recent summit.

Then, the Government propose in Clause 53 to give Ministers permission to act in direct violation of the UK’s obligations under the ECHR. Talk about right hand and left hand: it is not only incoherent but provocative. That does not seem wise, if the aim is open and good-faith negotiation on possible procedural reform. It is very reminiscent of the way the Government went about dealing—or rather, not dealing—with Brussels over the Brexit negotiations: always aiming to antagonise, then turning around and saying that they are punishing us.

Clause 53 is irresponsible and it is not going to progress any negotiations, in so far as they are necessary, and given the small number of interim measures issued by the Strasbourg court, it seems to be taking a sledgehammer to crack a nut. Not only is Clause 53 likely to hinder discussions on procedural reform, if that is necessary; it makes broader conflict with the European Court of Human Rights all but inevitable. If there is dissatisfaction with the procedures in Strasbourg, the solution is to pursue reform at the European level—and there have been many instances of discussions in the Council of Europe about the processes of the convention and the court. It is not even saying, “We will never obey interim measures”; it gives the Minister the discretion to refuse to comply with our obligations by obeying interim measures. Surely, the UK’s interests are better served by remaining, in the Foreign Secretary’s words, a “serious player” on the world stage, rather than undermining its own influence in this way. I therefore believe that Clauses 52 and 53 should not stand part of the Bill.

[Lord Carlile of Berriew (CB)]

I want to make a brief contribution on Clause 53. We cannot ask the Minister to comment on the impact assessment, because it is yet to be born, but we have the advantage of the report of the Joint Committee on Human Rights, referred to by the noble Baroness, Lady Ludford. At paragraph 12, on page 121 of that report, in its recommendations and conclusions, it says that

“clause 53 gives Ministers legislative permission to act in direct violation of the UK obligations under the ECHR. Where a Minister chooses to ignore an interim measure and therefore breach Article 34 of the ECHR, clause 53 also prevents the courts from having regard to interim measures when considering proceedings under this Bill. This clause therefore permits deliberate breaches of our obligation to comply with interim measures of the ECtHR. Clause 53 must be removed from the Bill”.

That is the conclusion of an all-party Joint Committee of both Houses of this Parliament, and I trust that, in his response to the debate, the Minister will respond and give us his reasons for not accepting that carefully considered conclusion of the committee in one of the largest reports it has ever produced—and in the time when they could have produced 20 impact assessments.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am grateful for that short intervention. I am now not sure whether I am intervening on the noble Baroness’s speech or she is intervening on mine but she made a couple of points. I do not know whether she has seen my notes because I was going to come to the state practice point in a moment. Frankly, I should not really give this away but that point is probably the best point against the arguments that I am running. I am a little surprised that the noble Baroness, Lady Chakrabarti, did not mention it but I shall do so; it is the best point. I am not speaking for the Government so I am not going to divine what is in the mind of the noble and learned Lord, Lord Bellamy, or that of the Minister who will respond; they can speak for themselves and I will speak for myself.

What I was saying is twofold. First, I was not saying that there are no circumstances in which you cannot justify a Rule 39 order. I thought I had made it clear that, if you can justify it properly under Article 34 in the particular circumstances of the case—such as a death penalty case—and there are proper natural justice provisions, it could be justified. That is my first point.

My second point is that the mere fact that states abide by Rule 39 indications will not, I suggest, be enough for state practice as a matter of international law. The fact that a court tells me to do X and I do it does not show that I accept that the court has jurisdiction to tell me to do it. I might choose to do it because I do not want to pick a fight with the court. One has to find a more detailed and forthright statement that is sufficiently unambiguous, and then look at that coupled with everything else.

I have delayed the Committee long enough. On this point, I direct the noble Baroness, Lady Ludford, to Policy Exchange, on which she is absolutely right. The point made by the noble Lord, Lord Anderson of Ipswich, was picked up and dealt with by Professor Ekins in that report.

[Lord Carlile of Berriew (CB)]

My Lords—

[Lord Wolfson of Tredegar (Con)]

Before I give way, may I make one other short point? I respectfully suggest that state practice cannot give a court jurisdiction when it does not have it. All state practice can do is go to the interpretation of a treaty. It does not go to the creation of a power or a jurisdiction; that point may not be one to discuss as the clock strikes midnight, but now is a good time for me to give way to the noble Lord, Lord Carlile.

[Lord Carlile of Berriew (CB)]

I am grateful to the noble Lord. I draw his attention to the current, as of today, UK Visas and Immigration guidance, Judicial Reviews, Injunctions and Applications to the European Court of Human Rights. Where it deals with Rule 39, it says that

“a Rule 39 indication is similar to an Administrative Court … injunction but is”,

to state the obvious, made by the European Court of Human Rights. It goes on:

“Where you have been notified that a rule 39 indication has been made, you must … defer removal immediately”


and,

“where the person is detained, make sure this development is considered in relation to any decision to continue with detention”.

In other words, in their current guidance on the subjects that we are concerned with, the Government regard these Rule 39 rulings as binding. That is what the guidance tells the members of the public who have bothered to look at the Government’s own website this evening, as I have.