Illegal Migration Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, we have had a very interesting, long and good debate, which has had perhaps more than a hint of a Second Reading debate—but, of course, that is unsurprising, given that Clause 1 sets out the purpose of the Bill. We will of course be able to revisit this debate in the second group when we have the “clause stand part” Question.

We have heard thoughtful speeches from many noble Lords, but I particularly valued the insights from the noble Baroness, Lady Fox, my noble friends Lord Hodgson, Lord Horam, Lord Sandhurst and Lady Lawlor, and my noble and learned friend Lord Wolfson.

For now, let me respond to the amendments directly. First, Amendments 1 and 5, tabled by the noble and learned Lord, Lord Hope of Craighead, seek to add into the Bill definitions of “illegal migration” and “unlawful migration”. The noble and learned Lord has suggested that this would be helpful in the interests of legal certainty. As a lawyer myself, I am all in favour of legal certainty but, in this instance, I am not persuaded that adding these definitions helps in this regard.

It is important to incorporate Bill-wide definitions in a Bill where terms are used across the Bill. We have done that in this Bill and, as noble Lords will have noticed, Clause 64 includes an index of defined expressions. But I put it to the noble and learned Lord that nothing hangs off the terms “unlawful migration” or “illegal migration” and, consequently, there is no need to define them. The term “unlawful migration” is used only once in the Bill, in Clause 1(1), while the term “illegal migration” is used only in the Short Title, as the noble Baroness, Lady Chakrabarti, observed. Moreover, it is clear from Clause 2 that the duty to make arrangements for removal applies to persons who meet the four conditions in that clause. It does not apply to other persons who may be in the country unlawfully—for example, because they have overstayed their limited leave to enter or remain. In short, the Bill is clear without these two terms being defined.

As regards the early intervention in the debate from the noble Baroness, Lady Meacher, a point repeated by both the noble Baronesses, Lady Chakrabarti and Lady Hamwee, as well as my noble friend Lord Kirkhope and the right reverend Prelate the Bishop of Chelmsford, I remind your Lordships that the Immigration Act 1971 was recently amended by the Nationality and Borders Act 2022 with regard to the criminal offences relating to illegal entry and arrival. This includes people who enter the UK without leave or arrive in the UK without permission: for example, without a visa where that is required under the Immigration Rules. This means that such persons are illegal migrants whether or not they go on to claim asylum. This, if I may say, answers the question from the noble Baroness, Lady Hamwee, of what makes a route illegal. The answer is: legislation, passed in the normal way, and scrutinised and passed by this House.

The suggestion by the noble Baroness, Lady Chakrabarti, that anyone making claims under the refugee convention can never be illegal, represents, with respect, a muddled reading of the convention. The convention is clear that states can still operate controls on illegal migration and, under Article 31, it is expressly permitted to disadvantage those who have arrived illegally from safe countries—which is true of all who come from France. This embodies the first safe country principle in the sense that Article 31 protections apply only to those who have come directly from unsafe countries—a point made by my noble friend Lady Lawlor.

The first safe country principle is also widely recognised internationally, including in the Common European Asylum System, a framework of rules and procedures operated by EU countries together, based on the refugee convention. I would add that the noble Baroness, Lady Chakrabarti, may have overlooked the fact that, under Clause 2(4) of this Bill, the “duty to remove” does not apply to those who have come directly from unsafe countries, in line with the refugee convention.

The refugee convention seems to be raised to support statements that are not all borne out by its terms. We must interpret the convention as it is written, not as others would wish it to be written.

[Lord Hannay of Chiswick (CB)]

I thank the Minister for giving way. I merely want to ask whether you are recommending that all of the 46,000 who arrived last year should be sent back to France. If so, has the Prime Minister had any discussions with President Macron about that?

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

As the noble Lord knows, the Prime Minister and President Macron have had regular discussions and there have been regular treaties and agreements in relation to the enhancement of police powers in France, but it is not presently the position of the French Government that they are willing to accept the return of those who have entered the UK illegally. That is what drives the Government to look for other avenues to dissuade people from embarking on the dangerous journey across the channel.

Turning to Amendment 2, tabled—

[Baroness Ludford (LD)]

I am sorry to intervene on the Minister, but I wonder if he could direct my attention to where in Article 31 of the refugee convention it refers to “illegal migrants”. I can find a reference only to “illegal entry or presence” or “entry or presence without authorisation”. It is the entry or the presence that is illegal or unauthorised; it is not the person. That is the problem that many of us have with the term “illegal migrant”. I cannot find it in Article 31 of the refugee convention; perhaps I have not looked hard enough.

[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.

--- Later in debate ---

[Lord Lamont of Lerwick (Con)]

When my noble friend was replying to the noble Lord, Lord Carlile, he said that the ECHR memorandum set out precisely which articles of the convention had that effect and which clauses in the Bill were compatible or not, and, as he says, different rights are listed. But what is the status of that definitive document? He says it is the answer to the noble Lord’s question, but what is its status? Presumably it does not have legal effect in itself.

[Lord Murray of Blidworth (Con)]

That is correct: the ECHR memorandum is one of the documents prepared to support the Bill in its passage through Parliament. Obviously, if a matter of interpretation were required, it is the sort of material that those looking for an interpretation might be minded to refer to. Indeed, it is open to those in Parliament to refer to such documents. It is, of course, right to say that the ECHR memorandum is a standard part of the package in relation to public Bills—so, in that sense, it has regular status.

[Viscount Hailsham (Con)]

Before the Minister leaves this part of his address, will he tell the House whether it is the intention of the Government that the implementation of the Act should be compliant with all the conventions that are set out in Amendment 4? Do the Government intend to comply with those conventions? This House is entitled to know.

[Lord Murray of Blidworth (Con)]

As I have already outlined, it is clear that there is nothing in the Bill that would require the UK to breach its international obligations. The UK takes compliance with those obligations very seriously. As for the other international instruments referred to in these amendments, they have not, by and large, been incorporated into UK domestic law, and we should not seek to do so in this Bill through the back door.

[Lord Hannay of Chiswick (CB)]

The Minister seems to be placing a great deal of weight on there being nothing in this Bill that requires the Government to take action contrary to our international obligations. He would surely agree, however, that there is a great deal in this Bill that enables the Government to take action that would be contrary to our international obligations—and that without any recourse to Parliament.

[Lord Murray of Blidworth (Con)]

I am not sure that I agree with the noble Lord. There is no requirement that powers should conceivably be expressed on the face of every Bill in such a way that they are trammelled by international obligations. That would be contrary to the dualist system, as my noble and learned friend Lord Wolfson made abundantly clear. I am reluctant to reopen that particular exchange at this juncture, given the time that we have remaining prior to the dinner break.

States take different approaches to their international law obligations. Some states treat international law as part of their domestic law, but the UK, like other countries with similar constitutional arrangements, including many Commonwealth countries, has the dualist approach that we have discussed before. In those states, international law is treated as separate from domestic law and international law is incorporated into domestic law only by decisions of Parliaments through legislation. That is a point we have already discussed. The effect of these amendments would be to make the provisions of all the listed international agreements effectively justiciable in the UK courts. It is legitimate for noble Lords to make the case for incorporation into domestic law of one or more of these international instruments, but that is not the Government’s position, and we should not be using this Bill to secure that outcome.

I hope that, in light of my explanation, the noble and learned Lord will be content to withdraw his Amendment 1.

[Baroness Butler-Sloss (CB)]

I wonder whether the Minister could help me. He said that the Government would apply—I gather—all the conventions that are in Amendment 4. May I suggest that it would be impossible for the Government to apply the United Nations Convention on the Rights of the Child? It is perfectly obvious that the best interests of a child throughout the Bill will not be recognised.

[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.