My Lords, I will speak to Amendments 1, 3 and 5. It is a privilege to open the Committee stage of this important Bill. Before I come to the amendments themselves, there is one thing I wish to point out. Nothing that I may say in support of my important but relatively minor amendments is intended to undermine, or detract in any way from, the much more important and fundamental points raised by the other amendments in this group, in particular Amendments 2 and 4. I seek to reassure those in whose names those amendments stand. I am seeking to draw the Government’s attention to points raised by the Constitution Committee, of which I am a member, in its examination of the Bill.
Nobody can predict what shape the Bill will be in once it reaches its Third Reading, so it is as well for your Lordships to put all the cards on the table in Committee. Some will be more important than others, but one has to grasp the opportunity to put them on the table now. That is all that lies behind these amendments, and I hope that will be understood.
Amendments 1 and 5 deal with the use of words and the need for a definition. In its Short Title, the Bill refers to what it calls illegal migration, and so do the Explanatory Notes in their overview of the Bill on page 3:
“The purpose of the Bill is to create a scheme whereby anyone arriving illegally in the United Kingdom … will be promptly removed to their home country or to a safe third country to have any asylum claim processed. The Bill will build on the Nationality and Borders Act 2022 … as part of a wider strategy to tackle illegal migration”.
It says that the purpose of the Bill, among other things, is to
“deter illegal entry into the UK”.
But when it comes to the Bill itself, the language changes. The purpose of the Bill, it says, is
“to prevent and deter unlawful migration”.
The question is: does this mean the same thing as illegal migration?
The committee noted on page 1 of its report that the Bill does not define “illegal” anywhere. On the other hand, the Secretary of State’s duty to remove a person is triggered when the four conditions in Clause 2 are met. This suggests that the right way to define the expression “unlawful” for the purposes of this Bill, and what “illegal” migration for this purpose means as well, is to refer to these four conditions, which is what my Amendment 5 does. The fact is that Bills come and
go, and expressions of this kind can be and are defined in different ways. Indeed, the words are interchangeable, as the language of the Explanatory Notes and the Bill itself has demonstrated.
The purpose of Amendment 5 is to make it clear that, whatever might be said in any other Bill or in any other circumstances, all one needs to know as to what makes a migration unlawful or illegal in the case of this Bill is what is in Clause 2. This is all about legal certainty and the accuracy and use of the words, which is an important constitutional principle. That is why the committee has made this important point.
Before I move Amendment 1, I will also speak to Amendment 3 in my name. It would require the Secretary of State to provide guidance as to how the provisions of the Bill are to be read and given effect. This follows another recommendation by the Constitution Committee in its report on the Bill, which was prompted by what we see in Clause 1(3) and (5). Clause 1(3) says that,
“so far as it is possible to do so … this Act must be read and given effect so as to achieve the purpose mentioned in subsection (1)”.
There is an echo here, which all lawyers will recognise, of the wording of the direction about interpretation given to the courts by Section 3 of the Human Rights Act 1998, but Clause 1(5) says that Section 3 of that Act
“does not apply in relation to provision made”
by the Bill. As the committee said, these are novel provisions and it is difficult to predict how they will be interpreted by the courts.
The Bill has been accompanied by a statement that the Minister is unable to say that the provisions of the Bill
“are compatible with the Convention rights”.
However, the Government’s ECHR memorandum on the Bill appears to be more confident that the clauses it identifies as engaging with convention rights, taken one by one,
“are capable of being applied compatibly”
with the relevant ECHR articles. As for Clause 1(5), all that the memorandum says about it is that the disapplication of Section 3 of the Human Rights Act
“does not affect the Government’s assessment of compatibility of the Bill with the Convention rights as set out”
in the memorandum. The Constitution Committee says that the Government’s position on this “requires further explanation”. I am sure that will be explored much further in the other amendments in this group.
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The fact is that the potential impact of Clause 1(5), which is a major incursion into the rights guaranteed by the convention, has not been adequately addressed. It seems that the persons affected by the Bill, many of whom are extremely vulnerable to government action that undermines or deprives some of their convention rights, are being sent into a desperate kind of no man’s land where they cannot have any access to the courts of this country for a ruling on what their rights are. The Government are reserving to themselves the right to say what is and is not compatible, which until now has been the province of the courts. That is a serious change in our situation.
Recourse to the European Court in Strasbourg, which remains, is such a remote remedy in most cases that it would be no help to these disadvantaged people. The committee therefore recommends that the Bill should be amended to require the Government
“to provide for guidance, subject to parliamentary scrutiny”—
which is crucial to this point—
“on how the Bill is to be implemented compatibly with Convention rights”.
That is what Amendment 1 seeks to do. I beg to move.