Illegal Migration Bill

Baroness Chakrabarti Excerpts

2nd reading
Wednesday 10th May 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, a refugee convention refugee can never—I repeat, never—be illegal. I have the unhappy duty of speaking as both the child of migrants and as a human rights lawyer. While the latter may be a cause for derision among senior members of the Government, I fail to see that it is any less noble than being a lawyer to the wealthy or an investment banker.

None of our political traditions commands a historical monopoly of virtue when it comes to the treatment of immigrants in general, or refugees and asylum seekers in particular. Low points have included: Home Office obstruction of safe passage for so many fleeing the Nazis; the racist treatment of the east African Asians in 1968; virginity testing of Hindu brides at Heathrow Airport in 1979; and, of course, the still unresolved Windrush scandal of more recent times. This is not to deny prouder moments, but to acknowledge our mixed record and the importance of legal protections for the most vulnerable people—or at least of not baking vulnerability and discrimination into our statutes for the sake of cheap headlines that tickle the base.

The politics of the Bill are a populist, divisive distraction from economic turmoil caused by mismanagement and greed. Increasingly, this is a desperate electoral strategy of culture war. Notwithstanding the inevitable cruelties that would be caused to even the most genuine refugees, this will not stop the boats. However, it is as a believer in the international rules-based order and the domestic rule of law that I have the gravest concerns. In its current form, the Illegal Migration Bill would live up to its name—assuming that the adjective describes the second noun. It would put this country, a country that was at the heart of negotiating the post-World War II international settlement, in violation of the ECHR of 1950, the 1961 Convention on the Reduction of Statelessness, the 1989 UN Convention on the Rights of the Child, the 2005 anti-trafficking convention and, perhaps most shamefully of all, given the events that led to its creation, the 1951 refugee convention and its protocol.

I do not criticise the Minister—an alternative “activist lawyer”—for making a Section 19(1)(b) statement that he cannot confirm ECHR compatibility. Such an honest position was always envisaged by the scheme of the Human Rights Act so as to facilitate parliamentary debate over whether, for example, in a state of emergency Parliament should be prepared to legislate contrary even to lawful derogation from the convention. However, I note that both the drafters of the human rights memorandum to the Bill and the Home Secretary, in the other place, adopted cake eating in the extreme with their confident assertions about the compatibility of the Bill while simultaneously ousting various aspects of the jurisdiction of both the Strasbourg and domestic courts.

The domestic duty to read legislation compatibly with rights is replaced with a duty to do the Government’s bidding, in a grotesque parody of the separation of powers. Interim relief, which is so vital in expulsion cases, will no longer bind the Government’s hands, even where either the European Court of Human Rights or UK courts believe that a person might be trafficked, tortured or killed pending a full and final hearing of their case. The provisions narrowing suspensive claims would appear to allow removal in potential breaches of rights to life and of protections against inhuman and degrading treatment in a number of cases.

There will be no bail for those caught in the wide net of this Bill for 28 days. There will be no judicial review of immigration detention decisions. All of this is in breach of the right against arbitrary detention so embedded in our common-law traditions. Further, in the absence of viable deals with safe third countries, people may be interned in legal limbo indefinitely. In addition, the Bill would apply retrospectively to people already here who have made a claim for asylum in good faith.

The core of the evil—that is not a word I use lightly —of this measure is the notion of punishing some of the most genuine refugees on account of the necessarily clandestine nature of their escape. This was not lost on the former Prime Minister and right honourable Member for Maidenhead in the other place, who was with us this morning. It was not lost on the UN High Commissioner for Refugees. It is not lost on me. Still, I cannot quite believe that our values have sunk to this.