Illegal Migration Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord German. In arguing for Amendment 4, I have already suggested why I think Clause 1 should be replaced by a clear commitment to key international obligations and a requirement that the Bill be read accordingly by officials, Ministers and the courts. However, whether or not noble Lords eventually agree with Amendment 4 down the road, Clause 1 in its current form must not stand part.

The noble Viscount, Lord Hailsham, who is no longer in his place, rather smelled the rat earlier. Clause 1 is not some innocuous attempt to repeat the Long Title and extrapolate it into the body of the Bill. Instead, it is a direction to the courts to ignore international obligations in favour of the Executive’s purposes—they are executive purposes because we are part of Parliament and we have not finished with the Bill yet. Ignoring international obligations was the subject of so much of the earlier proceedings of the Committee and I do not think anybody put the problem with that better than the noble Lord, Lord Patten, with his peanut analogy, to which I am sure many people will return for a very long time.

The noble and learned Lord, Lord Hope of Craighead, rather nailed it, if I may say so, by pointing to the particularly perverse nature of subsection (3). Language once crafted by the great Sir Edward Caldwell, the former First Parliamentary Counsel, for the purpose of ensuring human rights compatible interpretation via Section 3 of the Human Rights Act is now being appropriated—or, to use the eloquent language of the noble Baroness, Lady Lawlor, subverted—for the purposes of ensuring that human rights are violated. For those reasons alone, Clause 1 should not stand part.

[Lord Hope of Craighead (CB)]

My Lords, I would like to come back to the points I raised in the first group, because they are the basis for my support for the argument presented by the noble Lord, Lord German. I agree with very much of what he said.

I have two points. The first is why we have to have Clause 1(1) in the Bill at all. As the Minister explained, nothing hangs on “unlawful” or “illegal”. They are tendentious words and I find it uneasy to know what they mean unless they are properly defined. The Minister was not prepared to give me a definition which tied them down to what is in the Bill. I do not see why he is not prepared to do that. His answer was one which I think any parliamentary draftsman would give him, which is that nothing hangs on them because the words do not reappear elsewhere—but that does not remove the need for a definition.

The other point comes back to what the noble Baroness, Lady Chakrabarti, has been saying about the combination of subsections (3) and (5). I find them really quite sinister. During the passage of the REUL Bill, we debated the need for parliamentary scrutiny in the face of an aggression by the Executive to reform the whole body of retained EU law without parliamentary scrutiny. Here we are again: the Executive assuming to themselves control over the convention without recourse to the courts. Indeed, there are other provisions in the Bill which exclude any kind of judicial scrutiny at all. That is taking matters a very long way and setting an uneasy precedent.

I would much rather this whole clause was taken out for these reasons. They give rise to real concerns about where this country is going, and indeed where legislation of this kind is going, in the future.

[Lord Hannay of Chiswick (CB)]

My Lords, I wonder whether I could come back to some of the questions the noble Lord failed to answer after the first debate, perhaps understandably in the desire to have a dinner break. Perhaps now he could apply himself to some of those questions.

First, could he please tell me which part of the refugee convention explicitly authorises a country to refuse to even hear the asylum request of a person who arrives on its shore? I would like to hear which bit of the convention says that that is a legitimate thing to do. The answer is not, I am afraid, to go into this rigamarole about returning to the first country they were in.

Secondly, the noble Lord said that nothing in the Bill requires the Government to take action contrary to our international legal obligations, but does he not agree that large parts of the Bill empower the Government, without further recourse to Parliament, to act contrary to our legal obligations? I would be grateful for an answer on that point too.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

That is consistent with the normal practice in statute.

[Lord Hope of Craighead (CB)]

My Lords, perhaps I might come back to the question asked by the noble and learned Baroness, Lady Butler-Sloss. I think the Minister said that he would write to her with examples of strained interpretation. I sat for many years on the Appellate Committee in the Supreme Court dealing with cases under the Human Rights Act, and I am not aware of any particular case where I was straining the language. I do not think I went very far beyond the ordinary meaning of the words.

I remember we were faced with a very difficult case involving two men who wanted to marry. In those days, the Marriage Act was very specific that marriage was between a man and a woman. We could have strained the language, but we did not do that; we said the provision was incompatible, which I think the Minister would recognise as a perfectly orthodox way to proceed. I think we were quite careful not to stray beyond the bounds of reasonable interpretation. I would be very interested to know whether he has examples of where we really did go beyond the bounds of reasonable interpretation.

[Lord Murray of Blidworth (Con)]

As I said, I will be writing to the noble and learned Baroness, but the House will recall that the noble Lord, Lord Wolfson, set out various examples, including Ullah and Al-Skeini, and there are others. This has been a matter of jurisprudential development since the commencement of the Human Rights Act. It is a well-known evolution in interpretive principle, and it is that which is addressed by the provisions in this Bill.

--- Later in debate ---

[Lord Etherton (CB)]

My Lords, I have co-signed the amendment in the name of the noble Lord, Lord Carlile or Berriew, and that in the name of the noble Lord, Lord Cashman. I will make some very brief comments on both.

The principle against retrospection in statutory provisions is very long-standing and well-established because it upsets settled status and settled rights. It follows that it can, save in exceptional circumstances, operate both unfairly and so as to create legal uncertainty in the way that people conduct their affairs.

The best example of where retrospection would be appropriate is in relation to a finance Bill and Act giving effect to a Budget, with the time lapse between the two enabling people to enter into tax avoidance arrangements. But here it would be utterly impossible—certainly without any credibility—to suggest that those who are either crossing the channel or promoting that crossing unlawfully or illegally have organised their affairs, or were ever likely to organise them, on the basis of the complex provisions of this statute. I have never heard anybody suggest to the contrary. For my part, I can see absolutely no sound reason why the normal rule—which is one of fairness and certainty, as I said—should be upset in this case.

I support the amendment in the name of the noble Lord, Lord Cashman, because extending the definition of the third condition to include gender identity and sexual orientation brings to the forefront something which has plainly been ignored in the drafting of the Bill. There is absolutely nothing in Schedule 1 which excludes from the places to which people can be removed those LGBT people who would undoubtedly face extreme persecution, varying from sentence of imprisonment to death and assault. Raising this issue here will, I hope, direct the Government and the Bill team to a serious lacuna in the legislation.

[Lord Hope of Craighead (CB)]

My Lords, I can be very brief. I have one amendment in this group, Amendment 39, which raises the same point as Amendment 6 in the name of the noble Lord, Lord Carlile of Berriew, on retrospectivity. I support all the amendments in his name to that effect. The only point I would have added would have been to read out my explanatory statement, which my noble friend Lord Kerr of Kinlochard has already done, placing particular stress on “for good reason”. If the Minister is not going to accept these amendments, I hope he can give the good reason in each case.

[Baroness Lawlor (Con)]

My Lords, I am puzzled by Amendment 6 and the reasons given by some of your Lordships for opposing the start date of 7 March 2023—a criticism made on grounds of retrospection. There is nothing unclear about the start date, and nothing hidden: 7 March is published as the start date for the Bill itself. It is the date of the Bill’s First Reading. I am also slightly puzzled by the desire to omit from subsections (4) and (5) of Clause 2 people who enter this country in breach of our Immigration Rules and do not come from a country in which their life and liberty are threatened.