Illegal Migration Bill in the House of Lords: 10-05-23
On Wednesday 10th May, the House of Lords gave the Illegal Migration Bill (better known as the Refugee Ban Bill) its Second Reading. This is the first chance the Lords get to debate a Bill. Find out more about how laws are made in our explainer.
The Lords echoed many of the concerns with the Bill that have been raised by charities and community groups, including that it undermines human rights; puts people already in vulnerable situations at particular risk; and hands unchecked powers to the UK Government. We’ve summarised some of the key points related to human rights and our international obligations.
Rejecting the Bill
The Liberal Democrats tabled a motion to decline to give the Bill a Second Reading. This would mean the Bill would be rejected by the House of Lords and would stop progressing through the law-making process. Lord Paddick said they should reject the Bill because it undermines the rule of law and international law commitments; removes the ability of refugees to exercise their legal right to claim asylum; removes protections for survivors of modern slavery; increases the number of people kept in indefinite detention; fails to provide safe, legal routes for refugees; fails to eliminate the backlog of asylum cases; and fails to include measures to tackle people-smuggling gangs.
However, Labour said they would not support the motion, even though they disagree with the Bill, because they were worried the Government would then try to use the Parliament Acts to force the Bill through. This would allow the House of Commons to pass a law without agreement from the House of Lords and would mean the Lords would not have any chance to make changes to the Bill. Some, like Baroness Hamwee (Liberal Democrat), disagreed with this concern because the Lords can delay a Bill for up to a year before it can be forced through with the Parliament Acts and “even if there were time to ram the same Bill through—it is not that straight- forward—there would be no time for implementation before the next election.”
In the end, the motion to decline to give the Bill a Second Reading failed meaning the Bill continues its journey through Parliament.
Disapplying the Human Rights Act
Lord Paddick (Liberal Democrat) said “this is the first, but not the only, Bill that explicitly states that it does not have to be compatible with the European Convention on Human Rights. The Human Rights Act is being revoked, one law at a time.”
We at BIHR, recently raised concerns about several proposed laws, including the Refugee Ban Bill, that say they don’t have to be read compatibly with human rights. This emerging pattern of laws chipping away at human rights protections is deeply concerning – both because of its immediate impact on the people targeted and because of the precedent it sets that all our human rights are at the whim of the government of the day.
Ignoring interim measures
Lord Coaker (Labour) then discussed Clause 53, by which the Government “seek unilaterally to undermine the European Convention on Human Rights, even while they negotiate, by giving the Home Secretary what is effectively an opt-out from any interim measure granted under Rule 39.” Interim measures are rare orders issued by the European Court of Human Rights requiring states to take (or not take) action where there is “an imminent risk of irreparable damage” to someone’s human rights. The Government has already tried to opt out of interim measures through its Rights Removal Bill.
Lord Coaker went on to reference Joanna Cherry MP, Chair of the Joint Committee of Human Rights (JCHR), as saying, “between 2019 and 2021, interim measures under Rule 39 were applied for in 880 cases against the UK but granted in just seven. How does that justify driving a coach and horses through international treaties that we signed and, indeed, helped to set up?”
How interim measures have protected rights
Lord Browne (Crossbench) shared concerns about Clause 53, giving examples of ways interim measures have been vital in protecting human rights. “Last summer, the European Court of Human Rights, in an interim measure, spared two British citizens from being executed by Russia. In the case of Ukraine versus Russia, President Zelensky holds several interim measures against Russia to constrain the use of military force against civilians. They hold vital symbolic and practical weight, and this attempt to dilute their power for domestic political purposes is extraordinarily short-sighted.”
The importance of international conventions
The Archbishop of Canterbury thought there was a need to update existing agreements in light of recent crises but said “what those Conventions offer is a baseline from which to build a globally shared understanding of what protection must be given to refugees; they are not inconvenient obstructions to get round by any legislative means necessary.”
It is important to remember that the European Convention on Human Rights and the Human Rights Act are designed to be “living instruments” – the way they are interpreted and the protections they offer needs to adapt and develop in line with our society’s progress. They have been built this way exactly for the situations like the one the Archbishop of Canterbury described, where policies need to keep pace with the reality of the day.
The UK’s international reputation
Lord Dubs (Labour) talked about his experience visiting the European Court of Human Rights as a member of the JCHR. He said, “it was said to us in Strasbourg that Britain has a reputation for adhering to decisions made by the European Court and has stuck by the European Convention. If we did not, the notorious abusers of human rights would simply say, “If the United Kingdom doesn’t do it, why should we?”. That is already beginning to be the case—we are beginning to hear that.”
Applying laws retrospectively
Baroness Lister (Labour) pointed out a number of problems with the Bill, including that it will have retrospective application, “which is just one example of how the Bill undermines the rule of law.” Clause 2(3) says the Bill applies to people who entered or arrived in the United Kingdom on or after 07 March 2023 – despite the Bill not being law yet and not even being published until late in the day on 07 March 2023.
We talked about this clause and potential issues under Article 7 of the Human Rights Act (the right to no punishment without law) in our human rights guide to the Bill.
Admitting the Bill doesn’t comply with human rights
Since the introduction of the Human Rights Act, UK Government Ministers who want to make a new law have to tell Parliament whether or not it complies with human rights (known as a Section 19 statement). The Home Secretary wants to pass the Refugee Ban Bill with a statement that she cannot say it complies with human rights – something that has only been done once before with the Communications Act 2003. Read more about this in our human rights guide to the Bill.
Lord German (Liberal Democrats) said that despite this statement, the Home Secretary “stated in the Commons that she was “confident” and “certain” that the Bill’s measures are compatible with our international obligations. So, at the outset, can the Minister tell the House when he replies whether the words on the front of this Bill are as a result of legal advice to Ministers and that the certainty expressed by the Secretary of State is her view and not that of the Government’s legal advisers?”
He also said he looks forward to the report of the JCHR scrutinising the Bill.
Setting a dangerous precedent
Lord Bourne (Conservative) said his key concern is also the Section 19 statement, saying “That goes to the very centre of what makes us great as a nation: a belief in the rule of law. This is the post-war settlement coming back at us. Do we really want to ally with Trump and Putin? That is what we are doing if we turn our backs on the very fundamental problem that this is illegal.”
Refusing to appear before the JCHR
Lord Alton (Crossbench) shared concerns about the Section 19 statement and echoed the importance of scrutiny by the JCHR. He criticised the Home Secretary for refusing “to come to the Committee to defend and explain a Bill that she has been unable to sign off as human rights-compliant”. He pointed out that “the weight of evidence received by the Joint Committee on Human Rights, some of it taken on camera from victims, has been overwhelmingly clear that [removing protections from survivors of modern slavery] would be in breach of the UK’s obligations under the Council of Europe’s Convention against trafficking and Article 4 of the European Convention on Human Rights.”
Weakening the universality of human rights
Baroness Ludford (Liberal Democrat) summarised many concerns with the Bill, including “trashing the separation of powers and obstructing recourse to independent judicial scrutiny. It undermines the rule of law in various ways, not least through some provisions of retrospective effect.”
She also talked about how the Bill “undermines the universality of human rights, contravenes the Human Rights Act and risks breaching the European Convention on Human Rights.” The universality of human rights is the fundamental principle that human rights apply to us all equally and weakening them for anybody weakens them for everybody.
Disregarding the separation of powers
Baroness Chakrabarti (Labour) opened her speech by telling the House she had “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.”
Demonstrating contempt for the courts
Lord Howarth (Labour) similarly said he is “ashamed of the Government’s attitude to justice; the Bill reprises their familiar contempt for the courts and their resentment of judicial review. In this legislation, the Home Secretary is seeking to make human rights claims inadmissible, to remove the practical possibility of appeal, and to curtail the oversight of our domestic courts and the European Court of Human Rights. If we consider the brazen statement by the Home Secretary that she cannot certify that the Bill is compatible with the European Convention on Human Rights, together with the obvious breaches in the Bill of the UN Convention on Refugees and the UN Convention on the Rights of the Child, it is clear that the Government disdain the rule of law. The Bill is disgusting and demeans us all.”
The use of divisive language
Lord Garnier (Conservative) also discussed concerns about “lazy politics” that sets out to “other” people (which he describes as “labelling these people as so different from us that they are almost incomprehensible”) and portray them as “dislikeable” and “morally bankrupt”. He asked if it is “acceptable to redefine one’s relationship to the law or to a long-standing convention on refugees, or to claim that judges who apply the laws enacted by Parliament—this Parliament—are “lefty lawyers”. Is it right to argue that what you think is in your immediate political interest is what is best for democracy? If the stakes are high enough, anything goes. To see where we may be heading, one has only to look at the clauses in the Bill relating to suspensive claims and serious harm; or at Clause 1(5), relating to the disapplication of Section 3 of the Human Rights Act; or at Clause 4, on the disregarding of certain claims; or at the Section 19(1)(b) statement on the face of the Bill. I have been described, I am sure, as many things, but no one I think could describe me as a “lefty lawyer”, and government by insult is not encouraging.”
Setting the UK up for collision with the ECHR
Lord Cashman (Labour) argued that the Bill was made in bad faith, saying it “plainly risks—and, I believe, seeks—conflict over the European Convention on Human Rights and the court. The Bill is a deliberate and carefully designed vehicle to put the UK on a collision course with the European Court of Human Rights, to further the ambition of the Tufton Street mob to whip up hatred of the court in support of the withdrawal of the United Kingdom from the European Convention on Human Rights.”
Unlawful, unworkable, unnecessary and undemocratic
Baroness Jones described the Bill as “one of the worst in a constant stream, a slurry, of bad Bills”. As well as calling it “cruel, inhumane and just plain nasty”, she described “four huge problems” with the Bill: it “breaks the law”; “will not work”; “is the opposite of what the UK needs” because it’s “immigration that’s keeping the NHS just about alive”; and it “breaks our democratic system…giving power to Ministers when they should really be held accountable by Parliament”.
Lords now have the opportunity to suggest changes to the Bill and these will be voted on during Committee Stage, which starts on 24th May 2023. Many Lords have suggested getting rid of some of the most harmful clauses of the Bill. Here are some ways you can get involved:
- Keep track of the changes suggested by Lords online and write to your MP to urge them to support positive changes when the Bill eventually returns to the House of Commons.
- Stand against the UK Government’s use of divisive language by taking the Migrant Rights “Words Matter” pledge and by asking your representative to take it, too. You can even send it to friends and family or share on your social channels to help spread awareness and understanding of the situation facing people migrating to the UK and to counter false rhetoric about immigration.
- Check out JCWI’s list of organisations looking for volunteers where you can support people directly affected by the Bill.
Keep an eye on our Refugee Ban Bill hub for updates on the progress of the Bill.
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