Illegal Migration Bill

Lord Sandhurst Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am glad that the noble Lord, Lord Kerr, brought his copy of Hansard from Second Reading with him. My recollection of the Minister’s explanation regarding Section 19(1)(b) was that the matter had not been tested by the courts. That sticks in my mind because I thought it was curious, since the Government are rather critical of people running off to the courts for interpretations of the law.

I will say quickly, because I want to put it on the record, that I subscribe to the view that no asylum seeker can be illegal and to the comments about international law which have been made. I am afraid that I am going to retreat from the big picture and Second Reading to Amendment 1—possibly unconventionally. I am grateful to the noble and learned Lord for tabling it, because it made me start thinking about the definitions of a lot of other terms used in Clause 1. The term he has singled out—I agree with him that it needs clarity—raises a lot of issues. There is a sort of endless loop of argument about compliance by the individual and compliance by the Government in their assessment of what they are doing.

In my mind, that is not the only phrase in Clause 1(1) that needs to be clearer. The same sentence uses the wording,

“and in particular migration by unsafe and illegal routes”.

That raises a lot of issues, does it not? Unsafe, of course, is a matter of judgment. As for illegal routes, in legislative terms, how does a route become illegal? What does “and in particular” signify in this context? Does the reference to unsafe and illegal routes exclude other routes? I really do not know. It is good prose, but not in this context.

Another phrase which bothers me at a technical and, I have to say, a political and a practical level is

“in breach of immigration control”.

Superficially, one understands what that means, but I do not know and was unable to find whether this is a technical phrase and so legally clear within domestic law. Immigration control is breached by a contravention of legislation, I would think, at a given time. That is clear enough. However, in the area we are discussing, the Immigration Rules—which we know are constantly changing and which come from Ministers and do not touch the sides for parliamentary scrutiny—are part of immigration control. So, I would be interested to know what that means in this context. It seems to me that one could portray this as delegation to Ministers by another mechanism. It is not clear—this is the political point, I suppose—so it is not a deterrent. I think it is inappropriate and gives more power to the Executive, which the Constitution Committee reports are given

“an unusual degree of power”

by the Bill.

I have added my name to Amendment 84. The noble Lord, Lord Alton, is not in his place; I did not expect to find that the debate on this would come today, and possibly neither did he. I am grateful to the right reverend Prelate for highlighting compliance with the anti-trafficking conventions. I agree with the noble Baroness, Lady Chakrabarti, that we need to come together with a single list that we can gather around.

I do not want to pre-empt debates on the substantive issues regarding trafficking and slavery—I say that without intending to suggest that the conventions and directives are not significant; they are—but will simply say that I expect the term “world-leading” to be used quite a lot with reference to the Modern Slavery Act when we get to that part of the Bill. The international nature of trafficking means that the UK has to consider it internationally and comply with conventions and directives—which brings us directly back to the point that many other noble Lords have made.

[Lord Sandhurst (Con)]

My Lords, I will speak to Amendments 2, 4, 84 and 148. I shall not speak to Amendments 1, 3 and 5. As for those later amendments, I will wait to hear what the Minister has to say about their meaning and effect on the Bill.

I turn to Amendment 2. Let me begin by way of introduction by explaining what I understand to be the effect of Clause 1(5) of the Bill, which will disapply Section 3 of the Human Rights Act 1998. Importantly, it does not mean that the convention ceases to apply to matters covered by the Bill or to acts by Ministers and officials; they will still be covered by it. Section 3 provides that

“primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.

--- Later in debate ---

[Lord Hacking (Lab)]

If the noble Lord looked at the national statistics on immigration for 2022, he would see that the figure is about 47,500 immigrants coming in by boat, but of those, there was a large portion of Albanians, and none of them were permitted to stay; they were shipped back to Albania.

[Lord Sandhurst (Con)]

That may be so, but the numbers are on a rising plane, and it is not simply Albanians now, they are coming from elsewhere. All I say is this. This is a carefully interlinked package of provisions. It may not be attractive or how we have done things in the past, but we face very different circumstances, and I suggest we should not seek to unpick its structure.

[Baroness Ludford (LD)]

I just ask the noble Lord about his point on Section 3 of the HRA, which he regards as disadvantageous. He talked about courts having to make a strained interpretation. I wonder whether he would give me some idea of how many cases there have been where the courts have had to strain to make this interpretation. Presumably, if they felt they had to do that, they would have had to resort to Section 4, declaring incompatibility. The review by Sir Peter Gross did not have a major problem with Section 3—I think there was a little tweak that has escaped my memory for the moment. It was broadly satisfied with the operation of Section 3, so I wonder why it is so difficult. With Section 4 and declarations of incompatibility, there is the disadvantage of having to make remedial orders—and there is not really capacity in the Commons to do that—and/or end up in the Strasbourg court. It seems to me much better to give some leeway to the courts to interpret legislation compatibly with the convention.

[Lord Sandhurst (Con)]

, I looked at Sir Peter Gross’s report yesterday and the night before to remind myself of what it said. Two points are important. One is that it was not unanimous on that point, unlike on everything else. We are not told where the disagreement was, but at least one member did not agree that nothing should be done. Secondly, it lamented the fact that there had been no statistics kept of the cases in which the court has gone down the route of Section 3, so we do not actually know when there has been what might be called a strained interpretation or when it has been a perfectly natural interpretation. You can read it if you look at individual judgments. The one in which Lord Steyn spoke is the case of Ghaidan—I cannot remember the other name in the case—

[Baroness Chakrabarti (Lab)]

Godin-Mendoza.

[Lord Sandhurst (Con)]

I am obliged. So there we are.

[Lord Etherton (CB)]

I have a very short point to make. I was delighted to hear the noble Lord, Lord Hodgson of Astley Abbotts, say that he was a great fan of the rule of law, but he, like the noble Baroness, Lady Fox, seems to think that it is something that can be moulded in accordance with political desire in Parliament. We should be quite clear about this, and the point is not a difficult one.

The rule of law is made up of various ingredients. One of those ingredients is compliance with international obligations. If you do not like the obligations and wish to comply with the rule of law, you either secede from the convention or international obligation or you change it. So long as it is there, you have to comply with it if you want to say that you are a country that observes the rule of law. We are a leading world democracy. If we do not abide by the rule of law, we place ourselves in the company of numerous rogue nations. This country deserves better than that.

Illegal Migration Bill

Lord Sandhurst Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I shall speak to Amendment 119 and to the overall challenge to Clause 53. To be absolutely clear, there is no reason why the Government should not ignore and override an interim measure by the Strasbourg court. The requirement that Amendment 119 seeks to impose is also neither necessary nor appropriate. I regret to say that I disagree with the conclusion of the Joint Committee: what is proposed does not breach Article 34 of the convention.

Neither is Clause 53 a circuitous route to block interim measures. It permits Ministers to disapply the duty to remove a person to whom interim measures under Rule 39 have been asserted by the European court. Equally, the Minister will retain the power to ignore the interim measure if he or she so wishes. There are a number of reasons for this. First, as has been explained by my noble friend Lord Wolfson on previous occasions—I think he will add more later this evening—our treaty obligations have force in our domestic law only when Parliament enacts legislation to this effect, hence the Human Rights Act direct effect. Secondly, and of importance to others in this House who, like me, value this country’s good name and reputation, the interpretation which is now used to found this interim measure was placed only in 2005 on Rule 39 by the Strasbourg court. That decision was contrary to previous decisions of that court: in other words, it did not follow what we would call precedent. Indeed, it was contrary to the express intentions of those who drafted the convention, as a study of the travaux préparatoires would make plain.

Time does not permit tonight a lengthy exegesis, but for those who would benefit from further learning on this topic, I recommend the recent policy exchange paper, Rule 39 and the Rule of Law, by Richard Ekins KC (Hon), professor of law and constitutional government at the University of Oxford, with a preface by Lord Hoffmann, formerly a judge of the House of Lords, and a foreword by Lord Sumption, a former Supreme Court justice. It is important for us all to understand that Rule 39(1) states:

“The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings”.


That is just an indication of view or, as Lord Hoffmann says, a shot across the bows. It is not a power to make an order or direction against a contracting party. The court has not been given power under the convention to make an interim order binding on a party to the convention. The convention does not, in terms, as it would have to, confer a power to grant binding interim relief. The member states, including this country, made a deliberate decision in 1949, and subsequently, not to empower the court in this way.

I have already referred to Lord Sumption. He described Professor Ekins’s arguments as timely and powerful. In the preface to the paper, Lord Hoffmann explains that a ruling of a court such as the Strasbourg court is binding upon parties only if the court had jurisdiction to make it, and that not only is there nothing in the language of the convention which expressly confers such a power but that the usual aids to the construction of a treaty—the travaux préparatoires and the subsequent practice of the court—reflect a clear understanding that no such power exists. The court does not have jurisdiction.

What has happened in the court’s recent jurisprudence is that this advisory power—a sensible advisory power—has been assumed to be a power to grant legally binding interlocutory relief. In short, there is no breach of treaty obligations by the United Kingdom if it does not comply with an interim direction, so Clause 53 should remain and Amendment 119 is inappropriate.