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.