7th March 2023
Today we were supposed to see the government’s new Illegal Migration Bill.
According to today’s Order Paper, the Bill was to be presented to Parliament:
A minister told peers that the Bill was to be introduced today:
And there was even a Commons statement by the Home Secretary.
But.
There is no Bill – at least by mid-afternoon today.
This is odd.
That there is a delay was indicated by part of the Home Secretary’s statement:
“Mr. Speaker, I won’t address the bill’s full legal complexities today. Some of the nation’s finest legal minds have been – and continue to be – involved in its development.”
And why would the “nation’s finest legal minds” still be “developing” something which was supposed to be published today?
The ministerial letter above provides a possible explanation:
Section 19 of the Human Rights Act 1998 provides:
Nothing much of legal significance turns on section 19 statements either way – whether a minister views a Bill’s provisions as compatible or otherwise.
The lack of a compatibility statement will not make a statutory provision breach the ECHR, and the presence of a compatibility statement will not save a statutory provision from being found incompatible.
Section 19 is an ornament not an instrument.
Lord Hope in a 2001 House of Lords case said the following about one such statement of compatibility (emphasis added):
“It may be noted in passing that a statement of compatibility was attached to the Bill before second reading that its provisions were compatible with the Human Rights Act 1998. Statements to that effect are now required by section 19 of the Act, which was brought into force on 24 November 1998. But Mr Pannick QC for the Secretary of State did not seek to rely on this statement in the course of his argument. I consider that he was right not to do so. These statements may serve a useful purpose in Parliament. They may also be seen as part of the parliamentary history, indicating that it was not Parliament’s intention to cut across a Convention right […] No doubt they are based on the best advice that is available. But they are no more than expressions of opinion by the minister. They are not binding on the court, nor do they have any persuasive authority.“
That was just after the Human Rights Act was passed – but it is pretty much the conventional wisdom of the courts and practitioners on such statements.
Of course, ministers will want to assure waverers in the Commons and the Lords that this is not yet another piece of legislation which will break international legal obligations.
More concerning will be the substance of the Bill, which may face heavy amendment in the Lords and litigation in the Courts.
But we cannot know what the Bill says, as it has not been published.
What we do know, in addition to the Home Secretary’s statement (and ignoring the media briefing) is this from the Order Paper:
And this on the Home Office website:
*
The emphasis on media briefing for this Bill indicates that these proposals are more to do with political theatre, not law-making.
For the one thing which would do the most to stem any abuses of our asylum regime would be to have an adequately resourced and competent asylum system.
And until and unless we have an adequately resourced and competent asylum system, then everything else proposed by this government on asylum is hogwash.
The impression this Bill gives is that the government is not engaged in serious policy making and legal implementation, and it wishes to use its remaining months in office to play to various galleries and to evade any blame.
And this can be done by leaks, briefings, announcements and press releases – again, political theatre – with any actual legislation an afterthought.
***
STOP PRESS
The Bill has now been published.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
Why am I not surprised? Political theatre and an almost complete lack of policy making sums up this government since the 2019 election.
I appreciate that, and thank you for the very clear analysis, but what gets me is, practicable or not, the nastiness of the thinking.
How peculiar.
I thought the Nationality And Borders Act 2022 – enacted on 28 April 2022, barely 10 months ago – was meant to “deter illegal entry into the United Kingdom, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger”.
Yet for some reason the numbers of people arriving in small boats, and the number of people in the backlogged asylum system and the length of time they spend waiting, all just keeping going up.
Almost as if parliament passing legislation is not an efficient means to “send a clear signal” to desperate people seeking asylum.
However clear the government claims to be, words spoken in parliament or written into the statute books do not seem to be connected to a mechanism that changes behaviour.
Nonetheless, the government now proposes to the same thing again, and this time to pass further legislation that it acknowledges that more likely than not breaches the European Convention on Human Rights.
The bill last year was shameful, and this one is worse. Not so much a dog whistle as a siren.
Parts of this bill are Kafkaesque.
Clause 1 sets out at great length the purpose of the bill and what it is meant to achieve. In principle, this sort of clause can be helpful to interpretation, but the prolixity here smacks of lawyers being concerned that the operative clauses might not be (ahem) clear enough to survive a court challenge, and so needed to be fortified them with lashings of “purpose”. Clause 1 also expressly switches off the interpretative provisions of the Human Rights Act – probably wise if the legislation is not expected to be compatible anyway, but a dangerous precedent to identify certain categories of people are not entitled to human rights.
Clause 2 requires the Home Secretary to make arrangements to remove certain categories of people from the UK. The practicalities of detaining and removing perhaps tens of thousands of people each years will not be not simple. Will the French accept them back? Or are they all going to Rwanda? Heaven forfend that the Home Secretary might breach a statutory duty.
And then clause 4 allows the Home Secretary to declare certain sorts of claims “inadmissible” under the immigration rules – but clause 4(4) says a declaration is not a decision that can be appealed. Presumably this is intended to oust the jurisdiction of the immigration tribunal. If this ever gets on the statute books, I foresee a lot of JR business for the High Court, and petitions to Strasbourg.
There is a long list of countries in the schedule which are considered to be safe enough to require automatic mandatory removal, including for example India and Rwanda. I’d like to know what happens to a person – an Indian sikh or muslim, say, or a journalist from Rwanda – who manages to get to the UK with a legitimate claim to asylum. Where are they sent? Perhaps the Indians can be sent to Rwanda, and the Rwandans to India, if they would let them in.
Another point that has come to my attention.
In addition to certain other clauses turning off some rights of appeal, clause 13(4) and clause 48 would make certain decisions – some decisions over detention, and some decisions of the upper tribunal – “final” and “not liable to be questioned or set aside in any court”.
That includes where the decision maker may have exceeded its powers by reason of any error, and explicitly “no application or petition for judicial review may be made or brought”, with narrow exceptions for “bad faith” or where a procedural defect “amounts to a fundamental breach of the principles of natural justice”.
Finality is important, but error correction is also important, and this seems a pretty extraordinary shortcut when we are considering the liberty of thousands of individuals who have taken a perilous irregular route to arrive in to the UK, been detained, may be deported, and can never return to the UK, without a potentially legitimate claim to asylum here being considered.
It will be interesting to see how the High Court approaches these attempts at ousting its jurisdiction, if we even get that far.
The government’s approach may be new and innovative, but judges have often found ways around ouster clauses when they needed to.
A point of logic about the ministerial letter: it is utterly irrational to believe that something is true whole conceding that it’s more likely than not to be false.
We’ve had fake news, now we’re having fake legislation. Or indeed deepfake legislation.
All this is nonsense based on an illogical proposition that the border between France and the UK is materially different, as far as crossing it is concerned, to the border between France and Germany. It is not. It is probably easier to police the Rhine than the Channel, but not much. It is most certainly more dangerous to cross the Channel than the Rhine, but if you are fleeing oppression and you are reasonably equipped with boat and lifejacket, on a still day it is not so bad I expect.
Logically therefore, the UK Border is equivalent to any other country’s border and, if you want to manage the population in the UK, that is what you have to do; just attempting to halt the flow of people across the border does not do the job.
So to manage this issue we need, without limitation, new housing policy, new labour market policy including working whilst seeking asylum, individual documentation including identity, rights and visa management, and practical means for introducing people into the asylum system before they reach the UK border.
So surely the questions have to be asked: Why the political theatre? Why the procession of nasty but ineffective bills? When it would be so much quicker, easier, cheaper and more effective to develop an adequately resourced and competent asylum system.
The only answer I can think of is that the government wants to keep xenophobia in the headlines. The photogenic small boats serve as a symbol to achieve the same thing, and that’s why the government sets out to be ineffective at stopping them.
Why? Because their polling tells them that xenophobes, particularly where they teeter towards fascism, will never vote Labour no matter how cold and hungry they are left by their fossil fuel bills. Instead they’ll blame Johnny Foreigner and lefty lawyers who stymie the inhumane measures.
I’d like to think better of my government. What other plausible explanations are there, please?
And if there are no other plausible explanations, then this needs stating plainly and loudly:
Our government is spending our money to foment xenophobia and fascism.
If they want political theatre they could sit down the
Chancellor of the Exchequer on a beach on the Channel
coast and have him say “Go back, go back” to the incoming
waves of asylum seekers.
With apologies to James Naughtie.
A vacuous government with vacuous legislation. They have nothing cogent, coherent or competent to offer us., just culture war. Begone you imbeciles.
Should be the Matt cartoon of Border Force visiting elderly man at home, “We gather you arrived from Dunkirk in a small boat in 1940”.
The Government is playing to the “we are a small country and have no room, and we give tons of benefits to anyone arriving ‘illegally’ brigade”. Nowhere do I see publicised the ONS figures showing that last year 45,000 arrived by boat but nearly 300,000 arrived from non-EU countries for work etc. Why not knock that figure back to accommodate those that have a genuine asylum claim and provide a safe means to put that claim? The answer, of course, is that those facts won’t win the next election.
“…yet another piece of legislation which will break international legal obligations.”
“Illegal Migration Bill” starting to seem like an appropriate name
Unless I am missing something, it is my understanding that under the Human Rights Act 1998 even if an act is found to be incompatible with the European Convention on Human Rights then the Act is still valid in UK law. Even if the ECHR rules that the Act is in breach of Human Rights the Act is still valid in UK law.
Therefore I don’t understand, how if this Act is passed as primary legislation the Courts can stop it being enforced. Yes there may be international political consequences such as the UK’s expulsion from the Council of Europe, but those are political, not legal consequences.
Is it perplexing that ministers can be “confident” that the Bill is consistent with international law while at the same time believing that there is a greater than 50% chance that it is not?
“Is it perplexing that …”
I suspect that your expectations of the quality of policy-making and the legislative process in the UK are *very* much higher than mine!
I’m afraid it’s the hope that kills you…
The quote from Lord Hope says:
“They may also be seen as part of the parliamentary history, indicating that it was not Parliament’s intention to cut across a Convention right”
Could the opposite also be true? Could they be used to indicate that parliament *did* intend to cut across a convention right? And could this affect interpretation of an act?
Most interestingly of all, I notice that the Home Office web page you linked to has been up for 48 hours now, and the spelling of “habeas corpus” has still not been corrected.