Border Security, Asylum and Immigration Bill

Lord Faulks Excerpts

Committee stage
Monday 13th October 2025 Lords Chamber

[Lord Murray of Blidworth (Con)]

My Lords, as foreshadowed by my noble friend Lord Davies of Gower, I have two amendments in this group that seek to amend the Front Bench disapplication provision for the Human Rights Act. Of course, disapplication feels rather “yesterday”; the Overton window on the question of human rights law is now clearly swinging in favour of repeal of the Human Rights Act, following the excellent report produced by my noble friend Lord Wolfson of Tredegar and the announcement of the party’s new policy. Be that as it may, for the purposes of this Bill, the correct approach, which I suggest the Minister should grasp with both hands, is to disapply the effect of the convention and the operation of the Act in the sphere of immigration decisions.

Disapplying the Human Rights Act from this area is not unprecedented. As the Minister will recall, this provision was incorporated, in a slightly different form, in the Safety of Rwanda (Asylum and Immigration) Act, and it was clearly a matter that passed both Houses of Parliament. It is both a precedented and a necessary step.

I turn briefly to the context for my amendment. The amendment itself would add two further provisions to the amendment proposed by my noble friend Lord Davies: that is, to include in the operation Section 4 of the Human Rights Act, which is the court power to make a declaration of incompatibility, and Section 10, which is a power to remedy any incompatibility by means of a statutory instrument. As Policy Exchange observed in its paper on the Safety of Rwanda (Asylum and Immigration) Act in December 2023, that disapplication provision did not mention Sections 4 and 10 and was the worse for it, because the experience has been that, where a court can make a declaration of incompatibility, those matters are taken almost automatically by the Government as warranting some sort of remedial step.

No Government so far have ignored a declaration of incompatibility, to my knowledge. For example, in the recent case where the Northern Irish High Court found an incompatibility in the legacy Act, the decision of the Government was to bring forward a remedial order to have the effect of suspending the operation of the provisions of that Act without waiting for primary legislation, itself a controversial move. To avoid that situation recurring, I have tabled these amendments to exclude from any potential challenge to immigration-related decisions a decision by a court to make a declaration of incompatibility, or a decision by a Government to attempt to remedy it by making a remedial order under Section 10 of the Human Rights Act.

It is clearly time that we took back control of the United Kingdom’s borders. This Government, and particularly this Home Office, know the difficulties that trying to operate within the constraints of the Human Rights Act has generated as it has evolved. I encourage the Minister to accept a provision similar to this so that he can implement the policies of his Government.

[Lord Faulks (Non-Afl)]

My Lords, when the Government first came into power last year, great emphasis was placed by the Prime Minister and his Attorney-General on the importance of the rule of law and in particular respect for international law. We were told that there was no way the Government would revisit the Human Rights Act or seek to amend the ECHR. Attitudes appear to have changed.

The previous home secretary, Yvette Cooper, said that the Government would bring in

“a clear framework set out by parliament that then can be much easier for the courts to interpret”.

I am not quite sure what that means, but she was talking about the application of human rights guarantees to various claims for asylum, in particular in relation to Article 8. It may have been a coincidence that this statement followed quite shortly after Reform had announced its policy on asylum claims.

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[Lord Hanson of Flint (Lab)]

I am grateful, as ever, for the opportunity to have this discussion. I have to say straight away to the noble Lords, Lord Davies of Gower and Lord Murray of Blidworth, that we are not really going to find common cause this evening on this issue. I suspect that we will have to reflect on this on Report and that we will have a Division in the House. I suspect that we will be on opposite sides in that Division, because this Government are committed to ensuring that we comply with our international law and protect our human rights.

We are committed to the European Convention on Human Rights, which underpins international agreements that we have with partners, including the Good Friday agreement and the France returns agreement. We recognise the importance of an independent and impartial judiciary, going to the points that the noble Lord, Lord Faulks, mentioned, in determining its applications. That does not mean that, at the end of the day, we cannot examine some issues, on which I hope I will satisfy the noble Lord in a moment, in dealing with these matters before us.

I say straightaway to the noble Lords, Lord Davies and Lord Murray, that we will not agree on this. That is where we are. We do not have to withdraw from the ECHR or disapply the Human Rights Act to create what I would call meaningful reforms of our current system and processes. The Government have set out plans to reform the immigration system in the immigration White Paper. We will reform the framework for family migration, including strengthening the public interest test, to take back control—to use the phrase that the noble Lord, Lord Murray, used—over who comes to and stays in the United Kingdom.

I hope to assure the noble Lord, Lord Faulks, that we will legislate to reform our approach to the application of Article 8 in the immigration system so that fewer cases are treated as exceptional. We will set out how and when someone can make a claim. We are also reviewing the application of Article 3—

[Lord Faulks (Non-Afl)]

I know that the Minister is in some difficulty because he has not been given clear riding instructions, but this is a fundamental point for the British public. They need to know the general direction of travel. The Minister has been good enough to be clear that there is no way the ECHR will be deviated from and that there will be no amendment to the Human Rights Act, so how will the legislation be framed so that it changes the courts’ approach, given the Minister’s correct acknowledgement of the importance of the independence of the judiciary?

[Lord Hanson of Flint (Lab)]

Again, this may or may not satisfy the noble Lord—I apologise if it does not do so—but work is under way to review the application of Articles 3 and 8 in immigration cases. We will bring forward legislation on how Article 8 of the European convention is implemented in immigration cases to give courts the further clarity that they need so that our Immigration Rules are respected. As we have always said on migration, we will secure our borders and, if we need to go further, we will. In a sense, I am trying to give the noble Lord clarity by saying that we will reform Article 8 approaches and review the application of Article 3, but that will be in legislation brought before both Houses, which will then be considered and accepted, amended or rejected by both Houses.

The point is that this is where the water—I am not sure whether we should call it blue or red water—between the Government on this side of the Chamber and His Majesty’s Official Opposition exists. I do not see a situation whereby withdrawal from the ECHR or human rights legislation is tenable or desirable or will assist in the processes that noble Lords opposite seek. The agreements that we have with France, the Good Friday agreement and other agreements are dependent on that co-operation on international regulation, supplied and backed up by that legislation.

That may or may not assist the noble Lord, Lord Faulks, but I say to him that the direction of travel is clear: further examination and potential legislation to assess that down stream versus the commitment to maintain our human rights as we have them under the current legislative framework, which noble Lords are trying to disapply with their amendments.

[Lord Faulks (Non-Afl)]

I would be grateful for one final intervention; I hope that the Minister will forgive me, as I appreciate that it is late. The Labour Party had 14 years in opposition to disagree with the policies of the coalition and the Conservative Party, yet now, more than a year later, there is nothing in the border security Bill before us—and there has been nothing in any manifesto—about rewriting Articles 8 or 3. Why has it taken so long?

[Lord Hanson of Flint (Lab)]

We are identifying challenges that the Government have responsibilities to identify and work on. The challenges that we are identifying exist for some of the reasons mentioned by the noble Lord, Lord Davies. Issues to do with applications of Articles 3 and 8 are causing some challenges.

That does not mean we have to withdraw from human rights or ECHR legislation. We can either work with further UK amendments, to support changes to that legislation while retaining the spirit of the law that we apply, or—I was going to go on to say this before taking the intervention—actively engage with our European partners and the Council of Europe to consider what international reforms could restore the right balance between individual rights and wider public interest in controlling migration. As the noble Lord will know, this is a shared challenge. The basic rights set out in the ECHR and Human Rights Act are still valid today, but this does not mean that it is a static, permanent document that cannot be looked at in certain areas. As I have said, work is under way on reviewing the application of Articles 3 and 8 in immigration cases.

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[Lord Murray of Blidworth (Con)]

My Lords, Amendments 203F and 203G deal with the publication of tribunal decisions. First, I thank my supporters in this amendment, the noble Lords, Lord Faulks, Lord Jackson of Peterborough and Lord Alton of Liverpool. These amendments deal with an important issue and I should outline what the current position is in relation to the publication of judgments.

In the First-tier Tribunal (Immigration and Asylum Chamber), decisions of the judges are not routinely published. In the Upper Tribunal, which hears appeals from the First-tier Tribunal (Immigration and Asylum Chamber), decisions are published, although not all decisions may be reported. Bearing that in mind, I then invite the Committee to note that the noble and learned Baroness, Lady Hale, sitting judicially in the case of Cape Intermediate Holdings v Dring, 2019, United Kingdom Supreme Court 38, found that the purpose of the open justice principle was twofold.

The first purpose is to enable public scrutiny of the way in which courts decide cases, to hold judges to account for the decisions they make and to enable the public to have confidence that judges are doing their job properly. The second is to enable the public to understand how the justice system works and why decisions are taken. The First-tier Tribunal (Immigration and Asylum Chamber) is one of the largest of the seven chambers of the First-tier Tribunal. Of the other chambers, the Tax Chamber, the Property Chamber, formerly the Lands Tribunal, and the General Regulatory Chamber, which deals with Information Commissioner matters, among other things, all routinely publish their decisions on the website. Furthermore, the Employment Tribunal, which, although not part of the First-tier Tribunal, is a tribunal of even jurisdiction, also publishes all its decisions on the website. But the First-tier Tribunal does not do that. Its decisions are made behind what is effectively a curtain of secrecy.

This is no small number of cases. In 2020-21, the First-tier Tribunal (Immigration and Asylum Chamber) disposed of 20,000 appeals. In 2021-22, it disposed of 41,000 appeals. In 2022-23, it disposed of 38,000 appeals and in the last year we have numbers for, 2023-24, it was 39,000 appeals. It will come as no surprise that it is plainly in the public interest to have openness and transparency of decision-making. There should be public scrutiny of the decision-making of the First-tier Tribunal (Immigration and Asylum Chamber). There is no basis for there not being transparency and publication of judgments of the First-tier Tribunal.

It is of course open to litigants in the First-tier Tribunal to apply to the tribunal for an order that the identity of everybody in the case be anonymised in the decision, so no risk to anyone participating in the case would be occasioned by the publication of the decision. The Supreme Court, in the case of Kambadzi in 2011, made it clear that, while anonymity needed to be justified in each case, there is now an expectation that in asylum cases there are frequently anonymity orders. So there is no argument that the non-publication of First-tier Tribunal decisions is to protect the people participating in the cases. There is, in fact, absolutely no coherent basis for not publishing these decisions, and this is made all the worse because there is very significant public interest in this decision-making.

I venture to suggest that the judges of the First-tier Tribunal would welcome the additional openness and transparency. We hear cases reported in the press: for example, the famous “Case of Theresa’s cat”, as it was called in the Daily Mail, and the “Chicken Nuggets Case”. We can all think of cases which have been reported by reason of matters which are identified as amounting to a breach of Article 8 or Article 3 of the convention. If the decisions were published in an accessible way on the internet, like all the other decisions in the other tribunals I listed, the press could immediately go to the decision and see whether that particular feature was, in fact, decisive in the decision-making.

And it cuts both ways. Not only would it be open to a journalist or researcher to analyse the methods by which decisions are taken by the judges of the First-tier Tribunal; they could analyse it by reference to the individual judge. Allegations of bias may be rebutted, or indeed it may be found that particular judges are refusing all cases. It does not favour one side of the argument or the other; it is simply fair and appropriate that these judgments be published.

The only reason which I can discern that these decisions are not published at present is that it has been the practice hitherto. Since 2007, on the formulation of the First-tier Tribunal (Immigration and Asylum) chamber, there has been a practice direction. There is nothing in statute, and the judges one speaks to can see no good reason why those decisions are not published. We know the tribunal service can manage it, because it manages it in the tax chamber, the property chamber, the general regulatory chamber and in the employment tribunal; it is the same tribunal service. Furthermore, it has all the judgments electronically in any event, so there is no cost argument and no process argument.

This is an amendment whose time has come. The Government should accept it at this stage and appreciate that this is something that warrants careful consideration. I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, it is not obvious how there could be any sensible objection to this group of amendments. They are all concerned with open justice. There are many well-known judicial utterances about the importance of this, as we have heard from the noble Lord, Lord Murray, quoting the noble and learned Baroness, Lady Hale. I like a recent one from a Scottish judge, Lord Carloway, who said this:

“Open justice has two key elements. The first is that proceedings are heard and determined in public. The second is that the public should have access to judicial decisions, including any reasons given for them and the identity of the parties. As a proxy for the wider public, the media have an important role. Reporting on court and tribunal cases is vital to ensuring public confidence in the justice system and the rule of law. The public would lose confidence in the courts if they could not understand what decision had been reached and why it had been reached”.


The 188-page report from the noble Lord, Lord Wolfson, has already been mentioned on more than one occasion. Referring to these decisions, in paragraph 48 he said this:

“A further difficulty in this area is that many of these decisions are not reported, making accountability difficult, and often these only come to light on appeal to the Upper Tribunal”.


There, he is referring to the First-tier Tribunal. In paragraph 50 of the same report, he said

“there may well be low-quality decision making going on in the initial stages, much of which is never corrected”.

In whose interests can it be to keep these decisions out of the public domain? For those who defend the decisions, they can illustrate the point; for those who attack them, they will have much better evidence. It cannot seriously be doubted that the decisions at the moment are of particular importance. Please can the public know what is being decided and why?

[Baroness Lawlor (Con)]

My Lords, I have a short intervention. If the First-tier Tribunal is open, as I understand from my noble friend Lord Murray it is, I see no reason for not allowing publication in the interests of confidence in our tribunal system.

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[Lord Katz (Lab)]

I remind noble Lords that, in April 2022, the National Archives and the Ministry of Justice launched Find Case Law, which is an online service allowing everybody to access freely accessible court judgments and tribunal decisions.

It remains the case—I suppose it ill behoves me to point this out, but this is something that the Opposition Front Bench is a sudden convert to—that, in various passages of immigration law that the previous Government put through your Lordships’ House, Members opposite could have made this proposal. It is convenient that they have now decided that this is a worthy thing to do.

I do not think it is unfair to suggest that people with an interest in accessing judgments can make the application. Those persons are most likely to be interested journalists or other legal practitioners. I am sure that it is the case that, despite some of the other tribunals that the noble Lord, Lord Murray, enumerated for us, such as the land tribunal, just because it is openly accessible that does not mean that everybody is regularly searching through it.

We see no reason to change the status quo; it is for the judiciary for decide whether to publish decisions. This suited the previous Government, and this suits us as well. That is why I ask the noble Lord, Lord Murray, to withdraw his amendment.

[Lord Faulks (Non-Afl)]

The noble Lord said that it “suits us”. What does that mean? Is he happy with a situation where the general public do not know, because the previous Government apparently did not make much of a fuss about this? Is that what he is saying?

[Lord Katz (Lab)]

No, I am simply saying that cases in the Upper Tribunal are regularly published, which are the cases that present the most case law which is actually of use to legal practitioners and of interest to the media and the public. We should protect the independence of the judiciary in being able to make its own decisions about it.

[Lord Faulks (Non-Afl)]

I have one further question, if I may. We understand from the Minister’s colleague that there is likely to be legislation coming telling tribunals how they should make these decisions and how, in particular, they should perhaps be changing their approach to Article 8 and Article 3. In order to inform themselves as to how this is going, in terms of the First-tier Tribunal, would it not be rather useful if the Government at least knew what they were deciding on a regular basis?

[Lord Katz (Lab)]

It would probably ill behove me to predicate my answer on legislation that I have yet to see. As and when we get to the passage of that legislation, we can perhaps revisit this conversation, and he might want to bring back my words to haunt me, but as it currently stands, I cannot talk about legislation that, frankly, I have not seen.