Illegal Migration Bill

David Davis Excerpts

Committee stage
Monday 27th March 2023 Commons Chamber

[Sir William Cash]

I voted for the Bill on Second Reading because it was most emphatically going in the right direction, but I emphasised that we wanted to be sure that it would actually work in the national interest by preventing illegal immigration. The Bill is getting better with the amendments proposed by the Government today, for which all credit to the Home Secretary, the Immigration Minister and the Prime Minister. The number of Back Benchers who are supporting our constructive amendments, including mine, is growing.

This Bill to stop the boats is both legally and politically necessary, because illegal migration is out of control, partly because of a failure to distinguish between genuine refugees and others who are illegal and economic migrants. This is not only a real problem in the UK; increasingly, it is a real global and European problem as well, as can be seen from the dreadful tragedies in the Mediterranean in the last few weeks and months.

This legislation sets out a fair regime for dealing with people who have arrived here illegally. It gives them a reasonable but limited ability to raise any exceptional reasons as to why it is unsafe for them to be sent to Rwanda or another safe country. These are known as suspensive claims, and they are clearly defined in clause 37. Those claims ensure that we are compliant with our international obligations and that we would not send somebody overseas if they were not medically fit to fly or if they would face persecution in the destination country.

The success of this scheme depends on it working predictably and quickly. Those who come over on small boats need to know that they will not be able to stay here and that the vast majority of them will be removed to Rwanda or elsewhere. If courts intervene in unexpected ways, it removes the deterrence and the whole scheme breaks down, along with our ability to control our own borders.

However, this is also a procedural, legal and judicial issue, because under the Human Rights Act 1998, the UK courts have not been given suitable guidance by Parliament via statute to draw the appropriate boundaries that are needed in the national interest. As I pointed out on Second Reading, for example, the international refugee convention does not apply between the UK and France, because France is not a country where asylum seekers fear persecution, yet the European Commission is by all accounts refusing to make legal changes to EU law to allow returns of illegal asylum seekers from the UK to France. There are also provisions setting out other named safe countries. I ought to remind House what happened when the Dublin regulation was torn up by Angela Merkel and 600,000 or so refugees were allowed to pour into Europe.

When the Human Rights Act was passed in 1998, I was in the House of Commons. Human rights lawyers and activists claimed that the Act was a “constitutional Rubicon” enabling the courts to override parliamentary sovereignty. This was a massively overstated and exaggerated claim that is refuted by clear statements, which I hope those on the Labour Front Bench will take on board, made by the then Lord Chancellor, Lord Irvine of Lairg, in the House of Lords on its Second Reading on 3 November 1997. He said of the legislation:

“It maximises the protection of human rights without trespassing on parliamentary sovereignty.”

He also stated that

“the remedial action will not retrospectively make unlawful an act which was a lawful act—lawful since sanctioned by statute.”—[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1229.]

But the question remained: what does statute provide?

[Mr David Davis (Haltemprice and Howden) (Con)]

I agree with my hon. Friend. In fact, that was demonstrated when we had the case of prisoner votes and Jack Straw, who took through the Human Rights Act, supported my motion to give instruction to the Government to get by exactly that issue.

[Sir William Cash]

I could not agree more with my right hon. Friend. In that context, “takes into account” is what the courts have to do with respect to the convention, but not necessarily to obey the Court. That is precisely what happened there.

In the House of Commons during the passage of the Human Rights Act, the Home Secretary Jack Straw made similar observations. The Government rejected giving the courts the power to set aside an Act of Parliament, which was being considered. This was a Labour Government rejecting giving the courts the power to set aside an Act of Parliament. He stated that this was because of

“the importance which the Government attaches to Parliamentary sovereignty”.

The White Paper at the time made that abundantly clear, even in respect of declarations of incompatibility by the courts, and furthermore made it clear that declarations of incompatibility would not necessarily lead to legislation.

I was glad to note, in principle, clause 1(5) regarding the application of section 3 of the Human Rights Act. In the context of parliamentary sovereignty, it is clear from the pre-eminent authorities that, in respect of section 3 of the Human Rights Act, any suggestion of a limitation of Parliament’s sovereign will would be permissible only to the extent that in doing so the courts give effect to the intention

“reasonably to be attributed to Parliament”

in enacting section 3. It must surely be clear to all of us, in the case of illegal immigration, that Parliament would never intend to condone illegality or criminality.

This analysis that I have put forward as to the interpretation of the Human Rights Act clearly requires further discussion with the Government. Furthermore, the pre-eminent authority also states that

“the Courts are thus not empowered to construe legislation compatibly with the convention at all costs”

and must not cross the constitutional boundaries, which would include not endorsing illegality.