Illegal Migration Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

Moved by

[Lord Hope of Craighead]

1: Clause 1, page 1, line 7, at end insert—
“(za) defines “illegal” and “unlawful” migration for the purpose of this Act;”Member’s explanatory statement
This amendment, and another to Clause 2 in the name of Lord Hope of Craighead, seek, in the interests of legal certainty, to provide a definition of what amounts to illegal migration at the outset of this Bill.

[Lord Hope of Craighead (CB)]

My Lords, I will speak to Amendments 1, 3 and 5. It is a privilege to open the Committee stage of this important Bill. Before I come to the amendments themselves, there is one thing I wish to point out. Nothing that I may say in support of my important but relatively minor amendments is intended to undermine, or detract in any way from, the much more important and fundamental points raised by the other amendments in this group, in particular Amendments 2 and 4. I seek to reassure those in whose names those amendments stand. I am seeking to draw the Government’s attention to points raised by the Constitution Committee, of which I am a member, in its examination of the Bill.

Nobody can predict what shape the Bill will be in once it reaches its Third Reading, so it is as well for your Lordships to put all the cards on the table in Committee. Some will be more important than others, but one has to grasp the opportunity to put them on the table now. That is all that lies behind these amendments, and I hope that will be understood.

Amendments 1 and 5 deal with the use of words and the need for a definition. In its Short Title, the Bill refers to what it calls illegal migration, and so do the Explanatory Notes in their overview of the Bill on page 3:

“The purpose of the Bill is to create a scheme whereby anyone arriving illegally in the United Kingdom … will be promptly removed to their home country or to a safe third country to have any asylum claim processed. The Bill will build on the Nationality and Borders Act 2022 … as part of a wider strategy to tackle illegal migration”.


It says that the purpose of the Bill, among other things, is to

“deter illegal entry into the UK”.

But when it comes to the Bill itself, the language changes. The purpose of the Bill, it says, is

“to prevent and deter unlawful migration”.

The question is: does this mean the same thing as illegal migration?

The committee noted on page 1 of its report that the Bill does not define “illegal” anywhere. On the other hand, the Secretary of State’s duty to remove a person is triggered when the four conditions in Clause 2 are met. This suggests that the right way to define the expression “unlawful” for the purposes of this Bill, and what “illegal” migration for this purpose means as well, is to refer to these four conditions, which is what my Amendment 5 does. The fact is that Bills come and go, and expressions of this kind can be and are defined in different ways. Indeed, the words are interchangeable, as the language of the Explanatory Notes and the Bill itself has demonstrated.

The purpose of Amendment 5 is to make it clear that, whatever might be said in any other Bill or in any other circumstances, all one needs to know as to what makes a migration unlawful or illegal in the case of this Bill is what is in Clause 2. This is all about legal certainty and the accuracy and use of the words, which is an important constitutional principle. That is why the committee has made this important point.

Before I move Amendment 1, I will also speak to Amendment 3 in my name. It would require the Secretary of State to provide guidance as to how the provisions of the Bill are to be read and given effect. This follows another recommendation by the Constitution Committee in its report on the Bill, which was prompted by what we see in Clause 1(3) and (5). Clause 1(3) says that,

“so far as it is possible to do so … this Act must be read and given effect so as to achieve the purpose mentioned in subsection (1)”.

There is an echo here, which all lawyers will recognise, of the wording of the direction about interpretation given to the courts by Section 3 of the Human Rights Act 1998, but Clause 1(5) says that Section 3 of that Act

“does not apply in relation to provision made”

by the Bill. As the committee said, these are novel provisions and it is difficult to predict how they will be interpreted by the courts.

The Bill has been accompanied by a statement that the Minister is unable to say that the provisions of the Bill

“are compatible with the Convention rights”.

However, the Government’s ECHR memorandum on the Bill appears to be more confident that the clauses it identifies as engaging with convention rights, taken one by one,

“are capable of being applied compatibly”

with the relevant ECHR articles. As for Clause 1(5), all that the memorandum says about it is that the disapplication of Section 3 of the Human Rights Act

“does not affect the Government’s assessment of compatibility of the Bill with the Convention rights as set out”

in the memorandum. The Constitution Committee says that the Government’s position on this “requires further explanation”. I am sure that will be explored much further in the other amendments in this group.

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[Baroness Meacher (CB)]

My Lords, with some trepidation, I want to comment on Amendments 1 and 5, tabled by my noble and learned friend Lord Hope. Under the refugee convention, anyone approved as a refugee has never been an illegal or unlawful immigrant, however they came to the UK. To define anyone as an illegal immigrant who may subsequently be deemed a refugee surely flies in the face of the refugee convention—or that is how I read it. I am sure that my noble and learned friend has a very good riposte to what I am saying, but if by any chance he does not feel he has, he may want not to press those two amendments.

[Lord Hope of Craighead (CB)]

My Lords, in fact, the noble Baroness makes my point. What I am really saying is that those who are affected by the Bill want to know what it means by “unlawful”. We may not agree with it, but the Bill has a formula which is to be used and we need to know what it is. That is the purpose of a definition. I absolutely understand what the noble Baroness says about the convention, but it is about the need to understand the Bill’s use of the word “unlawful”.

[Baroness Meacher (CB)]

Is it not our job to ensure that the Bill does not come up against the convention?

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[Lord Wolfson of Tredegar (Con)]

My Lords, like my noble friend Lord Patten, I have sat through all of this debate. I rise because my name—or, at least, a name close to mine—was mentioned by the noble Lord, Lord Hacking, at one point. The reason I rise with a little diffidence is that I have to catch a flight later this evening. I anticipate that I will be able to stay to the end of this debate and still make the plane, but if that turns out not to be right, I hope noble Lords will forgive me and not think that I mean any discourtesy to this Committee or those sitting in it today. I hope everybody will appreciate that is the last thing I would want.

Unlike other speakers, I cannot disavow being a lawyer. For better or worse, I am a lawyer. Therefore, let me make two short points at the outset. First, international law obligations are important. We ought to abide by them, as the noble and learned Lord, Lord Etherton, said. I would expect Parliament not to legislate contrary to a treaty obligation unless there were absolutely compelling reasons to do so and, in those circumstances, to make that very clear. Otherwise, we should always be legislating consistently with our international law obligations.

Secondly, as I made clear from the Front Bench on a number of occasions, I support our membership of the European Convention on Human Rights. I do not always agree with the decisions of the court—I do not always agree with the decisions of our domestic courts either—but that is a separate matter. I support us being in the convention.

I will not refer to all these amendments. I start with Amendments 3 and 148, which go together. Essentially, they refer to the statement that the Secretary of State must set out as to whether the Bill is compatible with the convention rights. Section 19(1)(a) and Section 19(1)(b) were put into the Human Rights Act as a political point. The noble and learned Lord, Lord Irvine of Lairg, made this absolutely clear when the Bill was going through this House. It was to keep people’s minds focused on whether the Government could say at that time that the Bill was compliant. It was never intended to be a legal bar. There is precedent in this House. The Communications Bill is a precedent for the Government being unable to state that the Bill was compatible with convention rights. When they were challenged, the challenges failed.

One cannot draw a line between being unable to make a Section 19(1)(a) statement and the Bill being in breach of convention rights. Section 19(1)(b) is very carefully drafted, and I listened carefully to the noble Lord, Lord Carlile of Berriew, who asked what it means. That statement is in the form that it is in the Bill because those are the words in Section 19(1)(b). That is what Parliament told the Minister to say. The structure is that if the Minister cannot make a Section 19(1)(a) statement, he or she makes a Section 19(1)(b) statement. Rather oddly, all that Section 19(1)(b) says is, “I can’t make Section 19(1)(a)”. Is that sensible? With respect, I do not think it is. If it were up to me, I would take out Section 19(1)(a) and Section 19(1)(b), which add more distraction than assistance. They were put in for political rather than legal reasons, and that is why the Section 19(1)(b) statement is in the form that it is in.

[Lord Hope of Craighead (CB)]

I recall saying once in the Appellate Committee that the courts were not bound by the statement—it has no legal effect.

[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.

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[Lord Murray of Blidworth (Con)]

Clearly, as I have already said, it is the Government’s view that nothing in the Bill requires the UK to breach its international obligations, whether in relation to the UN Convention on the Rights of the Child or any of the other listed international instruments. Of course, the United Kingdom takes compliance with its international obligations very seriously.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to all noble Lords who have taken part in this very interesting and far-ranging debate. I am conscious of the time, and I am sure the Committee would not wish me to go over the ground in any detail, and I am not going to do that.

The Minister, with great respect, has not really answered many of the questions that have been raised. We will come back to this, I am sure, possibly in the next group, but certainly these questions will come back on Report and will need to be answered in much more detail. So far as my own amendments are concerned—the definition point—the Minister has pointed out that nothing hangs on these words because they do not reappear elsewhere in the Bill. I was well aware of that when I tabled the amendment, but that raises the question: why brand the actions of these people coming here as unlawful or illegal, unless, of course, they are in breach of specific legislation, which is not always the case? That illustrates the unfortunate wording of Clause 1, which we will come back to.

As far as Amendment 3 is concerned, which deals with the question of guidance, I do not think, with great respect, that the ECHR memoranda amount to the kind of guidance that is needed in a situation where access to the courts is being denied. Something more specific is needed, and that is what the amendment is driving at. Perhaps we will come back to that at some later stage. For the time being, I think the simplest thing I should do, so that we can move on, is beg leave to withdraw Amendment 1.

Amendment 1 withdrawn.