I certainly believe that, vitally, we will only have democratic consent for legal migration if it is clear that that happens at the behest of and with the consent of this House and, critically, that we do not have an illegal immigration situation that is beyond this House’s control.
The reality is that if we are to effectively deter the evil trade of people smuggling, we need to tackle the incentives. That means making it crystal clear that coming here illegally will lead to swift detention and removal. It is neither compassionate nor sustainable to allow what is an abuse of our immigration system to continue. I can testify that, having sat in meeting after meeting with the Home Office as the Chief Secretary to the Treasury, the cost to the Exchequer of millions of pounds each day for hotels to house asylum seekers is not something that we should take lightly. That is, in part, why I tabled my amendments.
Bitter experience teaches us that Tony Blair’s Human Rights Act will otherwise act to frustrate the will of Parliament. The Government have therefore rightly drafted the Bill to disapply section 3 of the Act. However, I believe that other sections of the Act will be engaged too, and they should also be disapplied for the express purpose of this legislation. I say that not on my own authority but on that of Professor Richard Ekins of Oxford University and Sir Stephen Laws KC, the former First Parliamentary Counsel. As they argue in their February Policy Exchange paper:
“New legislation should expressly disapply the operative provisions of the 1998 Act, specifying...section 3 (interpretation of legislation), section 4 (declaration of incompatibility), section 6 (acts of public authorities) and section 10 (power to take remedial action)”.
They go on to say:
“Without legislative provision to this effect, it is inevitable that claimants will challenge the Home Secretary’s understanding of the legislation, inviting the courts either to interpret the legislation to read down her duty to remove persons from the UK (or reading in new procedural requirements) or to declare the legislation incompatible with Convention rights and thus authorising ministers to change it by executive order and ensuring that political pressure would be brought to bear to that end.”
Having disapplied section 3 on the basis that it leaves open the possibility of systemic legal challenge, I can see no legal, philosophical or practical argument against doing the same where a similar risk exists.
Ultimately, we know that our best—and probably only—chance to avoid this legislation being entangled in human rights law is for this place to be absolutely clear and unambiguous about our intentions. My amendment flows in that spirit. We should show the determination now—not after the fact, if and when the fears of many of us in this House have been realised—to make our intentions clear in the Bill.
I wish to speak briefly in favour of amendment 131, tabled by my hon. Friend the Member for Devizes (Danny Kruger), which has a comparable aim to my amendment in respect of the ECHR. I do so for the reasons set out by the Lord Chancellor at the time that the United Kingdom entered into the convention. He said:
“The real vice of the document, therefore consists in its lack of precision. I should be unable to advise with any certainty as to what result would be arrived at in any given case, even if the judges were applying the principles of English law. It completely passes the wit of man to guess what results would be arrived at by a tribunal composed of elected persons who need not even be lawyers, drawn from various European states possessing completely different systems of law, and whose deliberations take place behind closed doors.”
In a nutshell, that is the risk to which we expose the legislation if we proceed without that protection.
I very much hope that my right hon. Friend the Minister will take these amendments seriously and work with us, over the course of the crucial weeks ahead, to ensure the legislation respects the will of the House and, I believe, the will of the British people.