Report (2nd Day)
Borders, Citizenship and Immigration Bill [HL]
Lord Pannick (Crossbench)
My Lords, I, too, support Amendment 54. The 1969 Royal Commission on the Constitution—the Kilbrandon commission—explained at paragraph 1360 that the constitutional position of the Channel Islands and the Isle of Man is "unique"; but unique as the status of the islands undoubtedly is, general constitutional principles must apply to legislation which relates to them. It is, in my view, wrong in principle for the Government to invite this House to approve a clause that confers powers that are far wider than the Government wish to exercise, when the width of the powers that would be conferred affect fundamental and historic rights to freedom of movement. That is undoubtedly the position in relation to Clause 48.
The Government should ensure and can easily ensure with the aid of expert parliamentary draftsmen that Clause 48 expressly specifies what the Minister himself has stated unequivocally to be the intention. The intention is that the controls introduced in relation to travel to and from the Channel Islands and the Isle of Man will not require passengers to carry a passport or an identity document, and that the power to impose controls may be exercised only for the purpose of implementing risk-based intelligence. That is what the Minister told the Chief Minister of Jersey in his letter of
The Minister's letter then suggests—the noble Lord, Lord Goodlad, has dealt with this already—that the breadth of the powers to be conferred by Clause 48 need not cause concern because the Minister will work with the Crown dependencies to produce a memorandum of understanding. With respect, that is not an adequate answer. In principle, this House should not approve excessive powers for Ministers because they agree to limit their powers through a document which has no legal force, which in any event cannot bind either them or their successors, and which is not subject to any parliamentary control.
Furthermore, I hope the Minister will understand that the House may have little confidence in the value of his assurances, however well intended they are—and I am sure that they are—about discussions with Crown dependencies, in the light of the history of Clause 48. As he knows, his predecessors gave assurances to the Crown dependencies that there would be proper consultation on matters affecting their interests. His letter of
"consultation has not been ideal".
The Minister then suggested in answers to questions from the your Lordships' Constitution Committee that it would not be possible to differentiate in the Bill between the provision made in relation to Jersey, Guernsey and the Isle of Man, and the provision made in relation to the Republic of Ireland, where Ministers see a need for far more extensive powers. I do not understand why the drafting of Clause 48 cannot differentiate in that respect. There are significant distinctions. Ministers regard the concerns in relation to travel to the Republic of Ireland as far more extensive than in relation to Jersey, Guernsey and the Isle of Man. Of course our constitutional relationship with the islands is very different to our relationship with the Republic of Ireland, which is a foreign state. As the noble Lord, Lord Goodlad, pointed out, your Lordships' Constitution Committee issued a report making many of these points and concluded that it would be constitutionally inappropriate for Parliament to grant to the Government wide legal powers in excess of those properly needed to implement the Government's stated policy.
I ask the Minister to give the House an assurance that he will instruct parliamentary draftsmen now to produce a new version of Clause 48 that more specifically reflects his own, entirely valid, policy intentions to enable border controls to act on intelligence which identifies a security risk to a particular arrival or a particular passenger. If the Minister declines to give that assurance, I hope that the House will reject this clause.