Illegal Migration Bill

Baroness Chakrabarti Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

Moved by

[Baroness Chakrabarti]

152: Leave out Clause 53

[Baroness Chakrabarti (Lab)]

My Lords, the rule of law requires that Ministers are subject to the same rules as everyone else. This includes the possibility of discretionary interim relief in circumstances where courts believe that irreparable harm to one side in any litigation needs to be prevented while both parties await the final determination of an issue. Some noble Lords, including businesspeople and their lawyers, are perhaps more familiar with commercial than human rights litigation. However, the same principle applies. If I propose to dump or destroy the precious cargo entrusted to me because of alleged breaches by my customer, a court must obviously have the power to delay such drastic action pending crucial determinations of fact and law.

However, Clauses 53 and 54 would, first, completely oust the ability of UK courts to issue interim injunctions temporarily preventing a person’s expulsion to potential peril. Secondly, they would allow Ministers to ignore interim measures of the European Court of Human Rights, of the kind issued in the Rwanda case and those currently in place to prevent Russia executing Ukrainian prisoners of war. My Amendments 152 and 153 would remove these clauses, so as to respect domestic courts and the Strasbourg court. They are in no way wrecking amendments, as these courts only very rarely issue such measures against trustworthy, law-respecting jurisdictions such as we have been historically.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, the Bill establishes a bespoke claims and appeals process which provides for a person subject to the duty to remove to challenge their removal to a safe third country. The duty to remove will be temporarily suspended while consideration is given to any suspensive claim or appeal resulting from the refusal of that suspensive claim. That is of itself an effective remedy for those subject to the duty to remove, and these measures will ensure that all suspensive claims raised in response to a removal notice under the Bill will receive full judicial scrutiny.

Clause 53 is critical to the success of the Bill in preventing the United Kingdom’s domestic courts from granting interim remedies in relation to legal challenges which would prevent or delay the removal of a person who meets the removal conditions under Clause 2. Were other human rights claims and legal challenges to be made, they would be considered after a person has been removed. Clause 53 provides a necessary and effective safeguard against the endless merry-go-round of legal challenges that those with no right to be here use to thwart their removal.

Amendment 152 tabled by the noble Baroness, Lady Chakrabarti, would incentivise people to obtain injunctions or submit judicial reviews to delay or prevent removal, negating the carefully crafted and balanced provisions we have set out in the Bill, which I have just described. We cannot allow that to happen. The amendment would substantially undermine the Government’s ability promptly to remove those who enter the UK illegally, and our overall objective of stopping the dangerous small-boat crossings.

Amendment 153 similarly seeks to weaken the Bill by striking out Clause 54, which relates to interim measures of the European Court of Human Rights. Let me be clear: it is not the Government’s intention to ignore a Rule 39 interim measure. Indeed, Clause 54 provides a clear framework for a Minister to exercise discretion where a Rule 39 interim measure is indicated. That will mean that a Minister may suspend removal in response to a Rule 39 interim measure but, crucially, is not bound by UK law so to do. This will be dependent on the facts of each case.

As I have said before, the Government take their international obligations very seriously. Nothing in the clause requires the Government to act in breach of international law. I reassure the noble Baroness that reflections within the Strasbourg court are ongoing, and we are closely following the process. We are confident that they will lead to meaningful change.

The inclusion of Clause 54 in the Bill reflects our concerns about the interim measures process. We believe that there needs to be greater transparency and fairness in the process to ensure the proper administration of justice. We cannot allow our ability to control our borders to be undermined by an opaque process which does not give the United Kingdom Government a formal opportunity to make representations or appeal the decision. This process risks derailing our efforts to tackle the people smugglers and stop people from making the dangerous, illegal and unnecessary journeys across the channel.

For the reasons I have set out, I therefore invite the noble Baroness to withdraw her amendment and, if she is minded to test the opinion of the House on Amendment 152 or 153, I strongly urge noble Lords to reject the amendment.

[Baroness Chakrabarti (Lab)]

My Lords, I am so grateful to all noble Lords who have stayed. I say to all noble Lords that the length of debate does not indicate its importance. I am particularly grateful to the Minister for his indication that productive discussions are still in train between His Majesty’s Government and the Strasbourg jurisdiction; I take from that a suggestion to reinforce my suspicion that Clause 54 was always a negotiating position to attempt to improve the due process position in relation to interim measures in the Strasbourg court. On that basis, I want to allow the Government more time to proceed with those negotiations before Third Reading.

However, in relation to Clause 53 and my Amendment 152, on depriving His Majesty’s domestic judges of the inherent jurisdiction to grant interim relief, that jurisdiction does not come from any government or party statute; it comes from the common law. To deprive His Majesty’s judges of the ability to grant interim relief is anathema to our common-law system. With gratitude, again, to all noble Lords who stayed—perhaps even more to those who did not speak than to those who did—I would like to test the opinion of the House.