Illegal Migration Bill

Lord Kerr of Kinlochard Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

The refugee convention states that protection is not a simple concession made to the refugee: he or she is not an object of assistance, but rather the subject of rights and duties. If we move away from this indisputable legal principle, which underpins the human rights framework, not only our reputation but the spiritual health of this nation will be at stake.

[Lord Kerr of Kinlochard (CB)]

My Lords, I think the argument for Amendment 5 was won in Committee and need not be rehearsed at great length now. In my view there is no doubt that if we pass the Bill, what will follow will be a series of breaches of conventions, in particular the 1951 refugee convention. That is not just my view. It is also UNHCR’s view, formally and on the record.

When this point was put to him on our first day in Committee, the Minister said that UNHCR

“is not charged with the interpretation of the refugee convention”.—[Official Report, 24/5/23; col. 968.]

That is not true. Article 35 and the preamble to the refugee convention give UNHCR the task of supervising its implementation. We are required as convention contracted parties to submit our legislation to UNHCR. It has commented on this legislation and believes it would lead to breaches of the convention. That is why you can sum up the argument in three words: pacta sunt servanda. If we purport to believe in the rules-based international system, we cannot pass the Bill in this form. We must support Amendment 5. If the Government believe what they say, they can support Amendment 5 too.

[Lord Cormack (Con)]

My Lords, we were given an admirable example by the noble Baroness, Lady Chakrabarti, in her brevity at the beginning. I have to apologise to the House that, because I am looking after a sick wife, I will not be here as late as I would like to be. But this is a fundamental amendment in the Bill, and to violate international law is to invalidate national law. We should all bear that in mind. We often talk of China and the violation of the agreement that we made when Hong Kong was handed over. How can we continue to do that with sincerity and determination if we pass laws in this place that violate international law?

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

My Lords, as the noble Baroness, Lady Chakrabarti, has set out, Amendment 5 seeks to replace Clause 1 with a new clause that provides that nothing in this Bill requires an act or omission that conflicts with the five international agreements specified in the amendment. This includes the European Convention on Human Rights. Amendment 4, tabled by the noble and learned Lord, Lord Hope, is focused on compatibility with the ECHR. As I have repeatedly said in the debates on the Bill, and to reassure my noble friends Lady Helic and Lord Cormack, the Government take their international obligations, including under the ECHR, very seriously, and there is nothing in the Bill that requires any act or omission that conflicts with UK international obligations. Amendment 5 is therefore, on one level, unnecessary. But what might be viewed as a benign amendment takes a wrecking ball to our long-established constitutional arrangements, with uncertain consequences, as outlined by my noble friend Lord Wolfson.

Along with other countries with similar constitutional arrangements to the UK, we have a dualist approach, where international law is treated as separate to domestic law and incorporated only by domestic law passed by Parliament through legislation. We have, of a fashion, reproduced in domestic law aspects of the text of the ECHR through the Human Rights Act 1998, but that is not generally the case with other international instruments listed in the amendment.

The effect of this amendment would be to allow legal challenges based on international law in the domestic courts. As my noble friend Lord Wolfson has eloquently explained, this amendment would incorporate these instruments into our domestic law by the back door, thereby making substantive changes to the Bill. I therefore have to disagree with the noble and learned Lord, Lord Etherton, on the effect of Amendment 5. As my noble friend said, this is wrong in principle and far from being an academic point for the lawyers. There is a legitimate case to be made for incorporation but this is not the Government’s intention, and we should not make such a fundamental change to our domestic law on the basis of a two-hour debate in Committee and a rather shorter one again today.

The noble Baroness, Lady Fox of Buckley, hit the nail on the head in her insightful contribution in Committee. In the Bill we are legislating to prevent and deter the small boats by putting in place a scheme that makes it unambiguously clear that if you arrive in the UK illegally, you will not be able to stay; instead, you will be detained and returned to your home country or removed to a safe third country. That is the proposition we are seeking to put on the statute book. That is the proposition which Parliament will have endorsed and, having done so, that is the proposition that our courts should give effect to. As the noble Baroness said, we risk undermining the reputation of this place and the elected House if the clear intent of Parliament can be unravelled by this misguided amendment.

On the amendment in the name of the noble and learned Lord, Lord Hope, the Government have published two memoranda addressing issues arising under the ECHR, and I remain unpersuaded of the case for statutory guidance on how the Bill’s provisions are to be implemented compatibly with convention rights. It will undoubtedly be necessary to provide Home Office staff and others with appropriate guidance to support the implementation of the Bill. In the Government’s view, it would not be appropriate for such routine operational guidance on the implementation of a particular Act to be subject to parliamentary approval.

Amendments 13 and 16, in the name of the noble and learned Lord, Lord Etherton, would strike out Clause 4(1)(d), which makes it clear that the duty on the Home Secretary to make arrangements for the removal of a person who meets the conditions in Clause 2 applies regardless of any judicial review challenge to their removal. The noble and learned Lord’s explanatory statement for Amendment 13 describes it as consequential on Amendment 5. It may well be the noble and learned Lord’s intention to provide for judicial review challenges to removal—whether on ECHR grounds or otherwise—to be suspensive of removal, but that is not the Government’s stance, and I do not accept that his amendment is consequential on Amendment 5. We need a scheme that will enable removals in days and weeks, not, as now, in months and years. Clause 4(1) is critical to achieving that objective and I cannot support its evisceration.

Finally, as regards Amendments 1 to 3, I simply remind the noble Baroness, Lady Chakrabarti, that it is an offence to knowingly enter the United Kingdom without the required leave or to arrive without valid entry clearance or electronic travel authorisation. That being the case, Clause 1(1) quite properly refers to “unlawful migration” and “illegal routes”.

In response to the point raised by the right reverend Prelate the Bishop of Chelmsford, I point out that the refugee convention is clear that states can still operate controls on illegal migration. Under Article 31, it is indeed expressly permitted to disadvantage those who have arrived illegally from safe countries, which is true of all who come from France. This embodies the first safe country principle, in the sense that Article 31 protections apply only to those who have come directly from unsafe countries. The first safe country principle is widely recognised internationally, including in the common European asylum system, which is a framework of rules and procedures operated by the EU countries together, based on the refugee convention.

These amendments, particularly Amendment 5 but also Amendment 13, go to the heart of the workability of the Bill. Your Lordships’ House has a choice: either we can continue to accept the status quo, which could see the £3.6 billion spent on supporting asylum seekers in 2022-23 mushroom to £11 billion a year, or £32 million a day, by 2026, or we can back the Bill, retain Clause 1 and Clause 4(1)(d), and stop the boats. The House should be in no doubt that these are wrecking amendments. I therefore invite the noble and learned Lord, Lord Hope, not to press his Amendment 4, and ask the noble Baroness, Lady Chakrabarti, not to press her amendment. However, were she to do so, I would have no hesitation in inviting your Lordships’ House to reject the amendment.

[Lord Kerr of Kinlochard (CB)]

With reference to what has just been said about the first safe country principle, I would point out to the Minister and to the House that the UNHCR is on record from last week as authoritatively, formally saying that there is no requirement in international law for an asylum seeker to seek protection in the first safe country they reach. We may not like what the umpire says, but he is the umpire.

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I urge Peers to support this amendment to introduce a framework that will provide an opportunity for the Government to control public expenditure. In so doing, it would avoid the horrible, damaging and inhumane prospect of thousands of people being incarcerated in limbo, with no route out of the situation in which they find themselves.

[Lord Kerr of Kinlochard (CB)]

My Lords, I will speak in support of the amendment of the noble Lord, Lord German, to which I have added my name, and in strong support of the amendment of the noble Lord, Lord Dubs.

The noble Lord, Lord German, spoke of limbo, which is exactly what we will create here if we do not pass Amendment 15. These people will be detained indefinitely, in the dark about when they will be sent somewhere and in the dark about where they will be sent. That simply is out of keeping with the traditions of the society in which we are proud to live.

The Government will no doubt say that the possibility that a case might be allowed to start in the asylum process would significantly weaken deterrence. That seems to be the principal argument against today’s amendments—even, astonishingly, against the modern slavery amendment a few moments ago. The Government should perhaps read their own impact assessment, in which paragraph 31 says:

“The academic consensus is that there is little to no evidence suggesting changes in a destination country’s policies have an impact on deterring people from leaving their countries of origin or travelling without valid permission, whether in search of refuge or for other reasons. Non-policy drivers of behaviour (for example diaspora, shared language or culture, and family ties) are also known to be strong factors influencing the choice of final destination”.


I believe that that is the case.

The noble Baroness, Lady Kennedy of The Shaws, spoke powerfully in reaction to the noble Lords, Lord Clarke and Lord Howard, about the importance for the rule of law domestically and respect for international law of allowing the due process of hearing an asylum claim to take place. We all know that it needs to be streamlined and to have more resources put into it, but, basically, it is a sane system. The idea of limbo is insane, immoral and illegal, and, as the noble Lord, Lord German, pointed out, would be costly. The case for Amendments 14 and 15 is rock-solid.

[Baroness Butler-Sloss (CB)]

My Lords, I have put my name to the amendment of the noble Lord, Lord Dubs, which I strongly support, as noble Lords can imagine. I agree with everything that was said in support of Amendment 14, and I will add only two short points.

The first is that, over the years that I have been in this House, the Government have spoken again and again about the welfare and best interests of children. In the Bill, it is notable how the best interests and the welfare of children are totally ignored. Secondly, I visited Calais and met a number of young people, under 18, who were determined to come to this country. There was no question of them being pushed by any adults— I never saw an adult in any of the areas of Calais that I visited. They are determined to come, and they have good reasons to have fled their country. I heard harrowing stories of why they wanted to get away. Quite simply, this amendment would put back what they are entitled to and what is in their best interests. It should be supported.