Amendment 66

Illegal Migration Bill - Report (2nd Day) – in the House of Lords at 4:35 pm on 3 July 2023.

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Lord Carlile of Berriew:

Moved by Lord Carlile of Berriew

66: Clause 11, page 18, line 2, at beginning insert— “17A(A1) This paragraph is subject to section 11(7) of the Illegal Migration Act 2023.”Member’s explanatory statementThis relates to the amendment in the name of Lord Carlile of Berriew to Clause 11, page 21, line 15.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

My Lords, I rise to speak to Amendments 66 to 76, which stand in my name, and in support of Amendments 77 to 79. The substance of my amendments is in Amendment 76. What I apprehend will happen, if the matter is brought to the opinion of the House, is that we will vote on Amendment 66 and, if it is carried, Amendments 67 to 76 will be moved formally. That seems the correct procedure to me; I have not been contradicted in that.

The amendments I have tabled are designed to confirm that the lawfulness of immigration detention is not simply put in the hands of Ministers but remains subject to the principles established in common law. All the amendments in this group would reinstate the existing Hardial Singh principles and be consistent with the conclusion and recommendation of the Joint Committee on Human Rights at paragraph 202 of its report. What did it say? It said:

“The common law approach to immigration detention, established in the case of Hardial Singh, currently operates to ensure that immigration detention complies with Article 5 ECHR”.

Before we possibly hear criticism from some quarters of the House about the use of the European Convention on Human Rights, I remind your Lordships, as a parenthesis, that it has recently been cited by the Government in support of their case in the High Court. They cannot have it both ways; they have had it the way of wanting to support the convention in court. The Joint Committee goes on:

“This recognises that it must be for the courts to determine the legal boundaries of administrative detention … We are extremely concerned that this change would result in an immigration detention system that is not consistent with Article 5 ECHR. The Bill should be amended to ensure that there is independent, judicial oversight of individual liberty and compliance with Article 5”.

What are the Hardial Singh principles? Before I come to them, I will cite a dictum from my noble friend Lord Brown of Eaton-under-Heywood, who—very sadly for the rest of us on this side of the House—retired recently. In 2012, in the case of Lumba v Secretary of State for the Home Department in what was then the House of Lords, rather than the Supreme Court, he stated:

“Freedom from executive detention is arguably the most fundamental right of all”.

That has been adopted, repeated and uncontradicted.

The four limbs of Hardial Singh, which were created by my noble and learned friend Lord Woolf in his judgment in that case, have been identified and described in more detail by Lord Dyson as four propositions governing the legality of Immigration Act detention emerging from Hardial Singh:

“i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) The deportee may only be detained for a period that is reasonable in all the circumstances; iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; iv) The Secretary of State should act with … reasonable diligence and expedition”.

Those are magnificent principles, created after repeated cases following our common-law tradition of creating sound precedent when there is not statutory law in place that is lawful.

The court makes its own judgment when applying the Hardial Singh principles and is not limited to reviewing the jurisdiction that has been exercised by a Secretary of State. It can examine “incidental questions of fact”, some of which

“the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary’s views as may seem proper”.

Those are the words of Lord Justice Toulson in R v Secretary of State for the Home Department in 2007.

That is the legal basis for these amendments. I will now leave the world of reality and the law and take a short trip into cloud-cuckoo-land. If any of your Lordships wishes to have a quick cup of tea, they can hear a shorter version of this by simply going into iPlayer and listening to last weekend’s edition of “Dead Ringers” on Radio 4, which tore this Bill to pieces in about 35 seconds. We keep hearing from the Minister something that is not based on reality. He seems to have forgotten that the Government lost a case in the Court of Appeal last week. We hear their plea in mitigation that it was a 2:1 decision, but every day in this House we have majority and minority votes. Verdicts of juries by 11 to one or 10 to two are no less verdicts of juries than verdicts by 12 to zero, so that argument has no power whatever.

Above all, we in this House are entitled to expect the Government to obey the law. They cannot send anyone to Rwanda; it is unlawful. The Court of Appeal found that the risk of unlawful refoulement from Rwanda meant that the Rwanda scheme was unsustainable. Furthermore, when the statistics for June—which I mentioned in the House last week—were recalculated yesterday, they showed that the number of people coming on small boats has reached record levels. So it is not exactly the deterrent that the Minister has been calling for repeatedly, unless they are going to change their approach and say, “Come to Britain in your small boats; it’s the quickest way of getting to Rwanda and to the two-star hotel accommodation that is being supplied there”.

We are not in a realistic situation, because they can send nobody to Rwanda at the moment. The appeal to the Supreme Court will not be heard and adjudged upon before October at the earliest. We will probably be into the next Session of Parliament. It is a little bit of an insult to this Parliament that the Government have not obeyed the law as found in that case, withdrawn this Bill and said, “We’ll start again when we have a decision from the Supreme Court”.

We have to be careful that we are the antidote to oblique motives. There are oblique motives based on the assumption, and not on any good grounds, that the Government will be able to send people to Rwanda—maybe they will, maybe they will not, but at the moment they have lost. My request and submission to your Lordships is that the only decent thing this House can do—Members on all sides, and I hope that the lawyers will not contradict this—is support the Hardial Singh principles and back Amendments 66 to 79.

Photo of Viscount Hailsham Viscount Hailsham Conservative 4:45, 3 July 2023

My Lords, I speak to Amendment 76 which, in my view, sets out in the clearest possible terms the principles that should be applied to the power of detention presently under discussion. Indeed, if I have correctly understood the law—of which the noble Lord, Lord Carlile, reminded us—Amendment 76’s principles are principles that are currently being applied by the courts, and will be applied unless this Bill is enacted in its present form.

It is perhaps worth reminding the House of the strategic purpose of the Bill: to deter would-be migrants by the prospect of deportation to their country of origin or to a safe country. In my view, that is a perfectly legitimate objective; nation states are entitled to regulate the flow of migration. However, I also think that, in the modern world, that can be done only by the collective action of countries working together. That may require—I think it probably will—the substantive amendment of existing international agreements and conventions. I think there is very little prospect of unilateral action succeeding, save on the margins of the problem. The policy that underpins this Bill will fail because it will not be possible to deport migrants in sufficient numbers to constitute an effective deterrent.

Given that, I am extremely concerned about the ability of a Secretary of State to use a power of detention to reinforce, rather than to implement, the policy of deterrence. That would be an improper use of the power of detention. I am also deeply concerned that the power of detention as contemplated by the Bill will be used as an administrative convenience: detention without obvious limits of time in the hope that some possible prospect of deportation in respect of an individual will turn up. In my view, that would be highly objectionable.

I come to the four detailed provisions in Amendment 76. They should be considered individually. I will not repeat each one, because the noble Lord, Lord Carlile, has read them out, but just take the first and ask a sensible question:

“the Secretary of State must intend to remove the person being detained and can only use the power to detain for that purpose”.

That seems to be a very fair statement of the law, and we are entitled to know from my noble friend the Minister what the principled objection to such a statement is. The same question applies to each of the remaining three provisions. I will not read them out because the noble Lord already has. Each one of them seems to me to be wholly right as a statement of principle, and this House is entitled to know the principled objection to them if there is one.

As it happens, I think I know the principled objections—at least I know the objections—because they are set out in paragraph 95 of the Explanatory Notes. The Government wish to give the Secretary of State, rather than the courts, the right to determine the length of time deemed to be reasonable for a period of detention. Moreover, when early deportation is not practicable, the Bill will give the Secretary of State the power to detain for such a period that the Secretary of State deems reasonable. That is a huge enlargement in the discretionary powers of a Secretary of State, and I do not want to give any Secretary of State, least of all the present Home Secretary or her immediate predecessor, such additional powers. In my view, the judgment of the legality of detention should be left to the judges and the courts, in applying the principles that are so well set out in Amendment 76.

Photo of Lord Hacking Lord Hacking Labour

My Lords, I have been asked by my Front Bench not to speak at all and, if I break that, to speak in the shortest possible terms. I can do that, because I completely support the noble Lord, Lord Carlile, in the speech that he just gave and most particularly in his admonishing the Government for not withdrawing this Bill. I have read the two court judgments and can say only that, until or unless the Supreme Court takes a different view, Clause 2 is a nullity, and that is the heart of the Bill.

Photo of Lord Green of Deddington Lord Green of Deddington Crossbench

My Lords, I shall be even briefer. I listened with great interest to our two lawyers. They spoke with the fluency and knowledge that one simply has to respect. However, I point out that we face a very difficult policy problem, with serious effects on public opinion towards immigrants and arrivals in Britain. We face a situation in which, so far, what the Government have done has had no or very little effect. If this continues for some months or longer, there will be a serious impact on the authority of this Government and, possibly, the successor Government. I ask the lawyers and other Members of the House to bear those aspects in mind.

Photo of Lord German Lord German Liberal Democrat

My Lords, in the absence of my noble friend Lady Ludford, who cannot be in her place today, I will speak to Amendments 77, 78 and 79, which are in her name and that of the noble Lord, Lord Anderson of Ipswich. Those three amendments are intended to tackle the same issues as those tackled by the noble Lord, Lord Carlile, albeit with a different approach. If the noble Lord wishes to press his Amendment 66 to a vote, we will support him.

It is critical that the decision about the reasonableness—we have just heard that word from the noble Viscount, Lord Hailsham—of the length of immigration detention remains a matter for judges, not for the Secretary of State. Incidentally, those who read the judgment of the Appeal Court last week will have noted subsection (5) of paragraph 264, in which the Appeal Court questions

“whether the culture of the Rwandan judiciary will mean that judges are reluctant to reverse the decisions of the Minister”.

This very much puts the separation of powers between the courts and the Executive in Rwanda under question. Here we have virtually the same process, in which the courts of this country are being denied the principles on which they have operated. Set against that is a decision that is down to the reasonableness of the Secretary of State.

It is critical to preserve the Hardial Singh principles to ensure that the most vulnerable people do not have their freedoms curtailed unjustifiably. When the Secretary of State deprives someone of their liberty, there must be a clear avenue for the person to seek independent review of the legality and necessity of their detention. Detention should be for only a short period pending removal. We know now from the judgment that that will be much more unlikely. With no viable agreements in place, save with individual countries for individual persons who belong to those countries, it is highly likely that the 28 days that people will be detained on arrival in the UK will not be pending removal but will be purposely and purely to deter others.

We will be building up more and more people in detention or in some form of curtailed liberties. That is wrong, and it is why the judiciary needs to maintain oversight. This is critical, given that the Bill intends to detain everyone, regardless of age, ill health, disability and trauma. I am pleased to speak to these amendments and, as I say, these Benches will support the noble Lord, Lord Carlile, if he wishes to press his amendment.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, we will support the noble Lord, Lord Carlile, when he presses Amendment 66, and we would expect the subsequent amendments he mentioned to be consequential to that. He clearly and helpfully set out the four Hardial Singh principles and gave their legal basis and history, and I thank him for doing so. As he pointed out, the Government themselves recently cited those principles in a High Court case. I also thank the noble Viscount, Lord Hailsham, who succinctly summed up the Opposition’s view on the Bill. He said that there is little prospect of unilateral action succeeding, and we agree. He deplored the Secretary of State’s using the power of detention to reinforce the message of deterrence, rather than speaking of the need to implement the Bill, and we agree with that as well. He said that the power should not go to the Secretary of State rather than the courts, and he cited the Explanatory Memorandum. We agree with that too, so I thank the noble Viscount for summarising our view of the Bill.

The noble Lord, Lord Green, said that what the Government have done so far has not had much had effect. The Government are asking us again to support them to do more, yet they have been unsuccessful in the various Bills they have introduced in recent years to try to address this problem. It is a real problem, and there needs to be a different approach to reduce the numbers. Of course, I agree with the noble Lord, Lord German, as well. For all those reasons, we will be happy to support the noble Lord, Lord Carlile.

Photo of Lord Murray of Blidworth Lord Murray of Blidworth The Parliamentary Under-Secretary of State for the Home Department

My Lords, as we have just heard, Clause 11 clarifies the time period for which the Secretary of State may detain individuals by placing two of the common law Hardial Singh principles on to a statutory footing. As we have also heard, the principles provide that a person may be detained only for a period that is reasonable in all the circumstances, and if it becomes apparent before the expiry of the reasonable period that the Home Secretary will not be able to examine, effect removal or grant leave within a reasonable period, the Home Secretary should not seek to continue the detention.

As my noble friend Lord Hailsham noted, the Explanatory Notes published with the Bill make it clear that it is the Bill’s intention expressly to overturn the common law principle established in R on the application of A v the Secretary of State for the Home Department, 2007, and that henceforth it will be for the Secretary of the State rather than the courts to determine what constitutes a reasonable time period to detain an individual for the specific statutory purpose. In this regard, these amendments seek to preserve the status quo and leave it to the courts to determine the reasonableness of the period of detention. I put it to your Lordships that it is properly a matter for the Home Secretary rather than the courts to decide such matters, as the Home Office will be in full possession of all the relevant facts and best placed to decide whether continued detention is reasonable in the circumstances.

A person’s detention will continue to be subject to judicial oversight. We are not removing the involvement of the courts, as some in the House may have suggested. That oversight will continue by way of a writ of habeas corpus in the first 28 days, via an application for bail to the First-tier Tribunal, or a judicial review after that initial 28-day period. In any such judicial review proceedings, the Secretary of State’s assessment as to whether a period of detention is reasonable can be challenged on conventional public law grounds, including whether the decision is Wednesbury unreasonable. To be clear, the Bill explicitly does not, as has previously been suggested, provide for indefinite detention. The Government’s aim is to ensure that people are not held in detention for any longer than is absolutely necessary, as I have already said.

Photo of Viscount Hailsham Viscount Hailsham Conservative 5:00, 3 July 2023

If my noble friend is right, he is effectively saying that people who are detained will be released if there is no prospect of deportation. If that is right, the policy of deterrence is entirely without merit.

Photo of Lord Murray of Blidworth Lord Murray of Blidworth The Parliamentary Under-Secretary of State for the Home Department

My noble friend is right, in that it is one of the Hardial Singh principles that, if there is no reasonable prospect of removal, that person should not be detained. But I cannot agree with him that the policy of deterrence is not right, because it is clearly the Government’s intention to remove any illegal entrants to a safe third country. In answer to the noble Lord, Lord Carlile, I add that the Court of Appeal unanimously agreed with that being lawful as a matter of principle.

We recognise that circumstances can change. Where that is the case, detention must be reviewed. If it is considered that the anticipated period of detention is not reasonably necessary, the individual will be bailed. This reflects the existing legal and policy position on the use of detention.

It remains the Government’s view that the provisions in Clause 11 provide an appropriate balance between the respective roles of the Home Secretary and the courts. Accordingly, I ask the noble Lord to withdraw his amendment.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

My Lords, I express my gratitude to the noble Viscount and others who have spoken on the Bill, including the noble Lord, Lord German. I now come to this place for my daily dose of disappointment. It seems to me that the Minister is deliberately missing the point. He cannot be failing to see it, and I very much regret having to say that.

Who do noble Lords trust to make these decisions: a Minister or the courts? I will tell them something about the latter, in case they have never seen any of these cases in court. Judges sit day after day in the Administrative Court, hearing case after case involving asylum and refugees, and they make decision after decision about whether a period of detention is too long, too robust or unreasonable in some other way. They have built up a corpus of law which has become reliable and admired not just in this place but throughout our jurisdiction and the common law world.

Make your choice. I am going to test the opinion of the House.

Photo of Lord Lilley Lord Lilley Conservative

My Lords, can the noble Lord explain why our courts, and our officials acting under their duties, reach such different decisions from the courts and officials on the continent? Why do we reject only 25% of claims for asylum, whereas France rejects 75%?

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, this is Report and that intervention is not appropriate, I am afraid.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

Whether it is appropriate or not—and I tend to agree with the noble Lord, Lord Paddick, on that subject—it seems to me that the noble Lord who just intervened has made a very selective judgment without analysing the continental cases that have taken place. I have given a fair description of what happens in our jurisdiction; it is the one that I regard well, and I hope that your Lordships will too.

Ayes 216, Noes 163.

Division number 6 Illegal Migration Bill - Report (2nd Day) — Amendment 66

Aye: 214 Members of the House of Lords

No: 161 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Amendment 66 agreed.