My Lords, I shall speak to Amendment 4 in this group, in my name and those of the noble Lords, Lord Paddick and Lord Kirkhope of Harrogate, and the noble and learned Lord, Lord Etherton. I have also added my name to Amendment 2 in the name of the noble Baroness, Lady Ludford, and I have some thoughts on Amendments 1, 3 and 5 in the name of the noble and learned Lord, Lord Hope of Craighead. Amendment 84, in the name of the noble Lord, Lord Alton of Liverpool, is partly duplicative of mine, but focuses specifically on international anti-trafficking provisions. In as far as it adds the EU anti-trafficking directive to the Council of Europe Convention on Action against Trafficking in Human Beings, I support it; however, I think we should settle on a single, holistic list of obligations that, crucially, includes the precious refugee convention and its principles of non-penalisation, non-discrimination and non-refoulement, which the Government seem so intent on violating by this obscenity of a Bill.
I turn briefly to the amendments in the name of the noble and learned Lord, Lord Hope. I thank him for his explanation earlier. Contrary to the explanatory statement for Amendment 1, I cannot quite agree that this does anything for so-called legal certainty. To the contrary, it seems a rather circular amendment, in defining “illegal migration” according to the conditions for removal in the Government’s own Clause 2. As the noble Baroness, Lady Meacher, suggested in her very pithy intervention, as a matter of international law, someone who qualifies for protection under the 1951 convention can never have been illegal.
Noble Lords who have come to the Committee sensibly armed with copies of the Bill might care to compare its Short and Long Titles. It has become quite fashionable in recent years for Short Titles to become creatures of political spin, but parliamentary counsel guard the Long Titles—so crucial for scope, for example
—rather more jealously. While the Short Title is the Illegal Migration Bill, and our graveyard humour alights on the adjective accurately describing the second noun, the Long Title refers instead to
“persons who have entered or arrived in breach of immigration control”.
As the refugee convention was effectively the world’s apology for the Holocaust and the insufficient and inconsistent protection given to those attempting to escape the Nazis, the convention always contemplated some genuine refugees having to escape persecution and enter places of safety by clandestine means and in breach of ordinary controls.
That is why
“in breach of immigration control”
is accurate and appropriate for the Long Title and “Illegal Migration” is not appropriate in the context of refugees, who, as a matter of declaratory law, will always have been refugees, even before they were given their status—hence the excellent point made by the noble Baroness, Lady Meacher.
The probing Amendment 3 from the noble and learned Lord, Lord Hope, helps to draw attention to contradictions in the Government’s public positions around the ECHR compatibility of the Bill. As the noble Baroness, Lady Ludford, pointed out, the Section 19(1)(b) statement on the tin indicates one thing—that no statement that the Bill is compatible can be made—but aspects of the ECHR memorandum of ingredients suggest another. However, the medicine prescribed by the noble and learned Lord and the noble Lord, Lord Anderson of Ipswich, is far too weak a remedy. When a Government are so intent on violating rights to protection from torture, slavery and death, allowing the same Government to issue guidance on interpreting their offending legislation is like handing burglars the keys to the house. Therefore, the noble Baroness, Lady Ludford, is right to seek to remove Clause 1(5), which seeks to disapply Section 3 of the Human Rights Act, which, as we have heard, requires that legislation be interpreted compatibly with the European convention so far as possible. That is why I added my name to her Amendment 2.
Amendment 4 in the names of the quartet of the noble Lords, Lord Paddick and Lord Kirkhope of Harrogate, the noble and learned Lord, Lord Etherton, and myself goes further. It does not just remove subsection (5); it replaces the whole of Clause 1 with the requirement that this legislation shall not require violation of any of the key international legal obligations that we fear would otherwise be violated by it, namely the 1950 European Convention on Human Rights, the 1951 UN refugee convention, the 1961 UN Convention on the Reduction of Statelessness, the 1989 UN Convention on the Rights of the Child and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings. I am very proud to stand with noble Lords from four corners of the Committee whose experience includes high-level legal adjudication, law enforcement, and Home Office ministerial duty. What brings the senior judge, police officer, Conservative former Immigration Minister, and human rights lawyer together around the amendment is our desire that the United Kingdom remains committed to the international rule of law.
As we heard, last week, alongside other European leaders, the Prime Minister signed the Reykjavík declaration. It begins:
“We, Heads of State and Government, have gathered in Reykjavík on 16 and 17 May 2023 to stand united against Russia’s war of aggression against Ukraine and to give further priority and direction to the Council of Europe’s work … We reaffirm our deep and abiding commitment to the European Convention on Human Rights and the European Court of Human Rights (ECHR) as the ultimate guarantors of human rights across our continent, alongside our domestic democratic and judicial systems. We reaffirm our primary obligation under the Convention to secure to everyone within our jurisdiction the rights and freedoms defined in the Convention in accordance with the principle of subsidiarity, as well as our unconditional obligation to abide by the final judgments of the European Court of Human Rights in any case to which we are Parties”.
Mr Sunak said:
“We remain a proud European nation. And we must work together to defend the values we all hold so dear … Because we know what we can achieve together. Just look at this Council’s extraordinary legacy: protecting human rights, abolishing the death penalty in Europe, supporting media freedom and championing democracy across Central and Eastern Europe after the Cold War”.
Those fine words from the Prime Minister must not be contradicted by the Home Secretary’s illegal Bill.
Noble Lords will no doubt explore the many violations of our common and constitutional law tradition, as well as international law, via the anxious scrutiny of this Committee. At the very least, the Bill violates Articles 2, 3, 4 and 14 of the European convention in failing to protect victims of torture and trafficking and those at risk of death, and in allowing the Government to pick and choose which refugees from different countries it finds palatable from time to time. The Bill fails to protect stateless people and children in the context of its provisions on removal, detention, accommodation and age assessment. In the words of the UN High Commissioner for Refugees, it amounts to
“an asylum ban—extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how genuine and compelling their claim may be”.
This must be one of the strongest condemnations of a democratic and rights-respecting nation ever uttered by the commissioner.
If Ministers seek to argue that the Bill does not violate these various linchpin treaties, many of which the United Kingdom played a leading role in negotiating, they should have no problem with the requirement that the Bill be read in that way by Ministers, officials and the courts. If, instead, Ministers wish to argue that it is time to renegotiate these obligations, fair enough. Let them try to do so with such reserves of soft power as they think we have left. In the meantime, in contrast with Russia and other pariah states, let them respect the law.