Illegal Migration Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

[Lord German (LD)]

My Lords, in the absence of my noble friend Lady Ludford, who cannot be in her place today, I will speak to Amendments 77, 78 and 79, which are in her name and that of the noble Lord, Lord Anderson of Ipswich. Those three amendments are intended to tackle the same issues as those tackled by the noble Lord, Lord Carlile, albeit with a different approach. If the noble Lord wishes to press his Amendment 66 to a vote, we will support him.

It is critical that the decision about the reasonableness—we have just heard that word from the noble Viscount, Lord Hailsham—of the length of immigration detention remains a matter for judges, not for the Secretary of State. Incidentally, those who read the judgment of the Appeal Court last week will have noted subsection (5) of paragraph 264, in which the Appeal Court questions

“whether the culture of the Rwandan judiciary will mean that judges are reluctant to reverse the decisions of the Minister”.

This very much puts the separation of powers between the courts and the Executive in Rwanda under question. Here we have virtually the same process, in which the courts of this country are being denied the principles on which they have operated. Set against that is a decision that is down to the reasonableness of the Secretary of State.

It is critical to preserve the Hardial Singh principles to ensure that the most vulnerable people do not have their freedoms curtailed unjustifiably. When the Secretary of State deprives someone of their liberty, there must be a clear avenue for the person to seek independent review of the legality and necessity of their detention. Detention should be for only a short period pending removal. We know now from the judgment that that will be much more unlikely. With no viable agreements in place, save with individual countries for individual persons who belong to those countries, it is highly likely that the 28 days that people will be detained on arrival in the UK will not be pending removal but will be purposely and purely to deter others.

We will be building up more and more people in detention or in some form of curtailed liberties. That is wrong, and it is why the judiciary needs to maintain oversight. This is critical, given that the Bill intends to detain everyone, regardless of age, ill health, disability and trauma. I am pleased to speak to these amendments and, as I say, these Benches will support the noble Lord, Lord Carlile, if he wishes to press his amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we will support the noble Lord, Lord Carlile, when he presses Amendment 66, and we would expect the subsequent amendments he mentioned to be consequential to that. He clearly and helpfully set out the four Hardial Singh principles and gave their legal basis and history, and I thank him for doing so. As he pointed out, the Government themselves recently cited those principles in a High Court case. I also thank the noble Viscount, Lord Hailsham, who succinctly summed up the Opposition’s view on the Bill. He said that there is little prospect of unilateral action succeeding, and we agree. He deplored the Secretary of State’s using the power of detention to reinforce the message of deterrence, rather than speaking of the need to implement the Bill, and we agree with that as well. He said that the power should not go to the Secretary of State rather than the courts, and he cited the Explanatory Memorandum. We agree with that too, so I thank the noble Viscount for summarising our view of the Bill.

The noble Lord, Lord Green, said that what the Government have done so far has not had much had effect. The Government are asking us again to support them to do more, yet they have been unsuccessful in the various Bills they have introduced in recent years to try to address this problem. It is a real problem, and there needs to be a different approach to reduce the numbers. Of course, I agree with the noble Lord, Lord German, as well. For all those reasons, we will be happy to support the noble Lord, Lord Carlile.

[Lord Murray of Blidworth (Con)]

My Lords, as we have just heard, Clause 11 clarifies the time period for which the Secretary of State may detain individuals by placing two of the common law Hardial Singh principles on to a statutory footing. As we have also heard, the principles provide that a person may be detained only for a period that is reasonable in all the circumstances, and if it becomes apparent before the expiry of the reasonable period that the Home Secretary will not be able to examine, effect removal or grant leave within a reasonable period, the Home Secretary should not seek to continue the detention.

As my noble friend Lord Hailsham noted, the Explanatory Notes published with the Bill make it clear that it is the Bill’s intention expressly to overturn the common law principle established in R on the application of A v the Secretary of State for the Home Department, 2007, and that henceforth it will be for the Secretary of the State rather than the courts to determine what constitutes a reasonable time period to detain an individual for the specific statutory purpose. In this regard, these amendments seek to preserve the status quo and leave it to the courts to determine the reasonableness of the period of detention. I put it to your Lordships that it is properly a matter for the Home Secretary rather than the courts to decide such matters, as the Home Office will be in full possession of all the relevant facts and best placed to decide whether continued detention is reasonable in the circumstances.