Amendment 152

Illegal Migration Bill - Report (2nd Day) (Continued) – in the House of Lords at 8:27 pm on 3 July 2023.

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Baroness Chakrabarti:

Moved by Baroness Chakrabarti

152: Leave out Clause 53

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, the rule of law requires that Ministers are subject to the same rules as everyone else. This includes the possibility of discretionary interim relief in circumstances where courts believe that irreparable harm to one side in any litigation needs to be prevented while both parties await the final determination of an issue. Some noble Lords, including businesspeople and their lawyers, are perhaps more familiar with commercial than human rights litigation. However, the same principle applies. If I propose to dump or destroy the precious cargo entrusted to me because of alleged breaches by my customer, a court must obviously have the power to delay such drastic action pending crucial determinations of fact and law.

However, Clauses 53 and 54 would, first, completely oust the ability of UK courts to issue interim injunctions temporarily preventing a person’s expulsion to potential peril. Secondly, they would allow Ministers to ignore interim measures of the European Court of Human Rights, of the kind issued in the Rwanda case and those currently in place to prevent Russia executing Ukrainian prisoners of war. My Amendments 152 and 153 would remove these clauses, so as to respect domestic courts and the Strasbourg court. They are in no way wrecking amendments, as these courts only very rarely issue such measures against trustworthy, law-respecting jurisdictions such as we have been historically.

Once more, Amendment 152 is essential to most other protections which your Lordships propose. As for Amendment 153, I believe Clause 54 to be a negotiating position on the part of the Government, who are trying to negotiate with the Strasbourg court to improve the fairness of the Rule 39 jurisdiction. This speech was two and a half minutes long, and I beg to move.

Photo of Baroness Hamwee Baroness Hamwee Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee 8:30, 3 July 2023

My Lords, my noble friend Lady Ludford, who is unable to be here today, has her name to these amendments so I am speaking on her behalf, as it were, and on behalf of these Benches.

I make the general point that interim relief is an intrinsic and sensible part of our law. Injunctions are generally to prevent something happening, to maintain the status quo until there can be thorough consideration of a case. It is that way round because the person who wants to prevent that something happening is at risk of an action which would have a major effect on him—the other way round does not work in the same way. In this case, the action—removal from the UK —would effectively be the end of the story for the claimant and, if not that, it would at least make pursuit of claim from outside the UK very difficult indeed. That is quite different from the depiction we heard last week of a witness on a video link from another room or another building with all the normal support and access to his representatives.

This afternoon, I received an email from the Bingham Centre for the Rule of Law—I stress “Bingham” and “rule of law”; noble Lords will note that title—with quite a long summary of a report on this subject which I understand is to be published tomorrow. It concludes that although improvements could be made to the process in the European Court of Human Rights, they do not affect the court’s jurisdiction to indicate binding interim measures. It makes the point that, when states signed up to the European convention, they expressly accepted that:

“In the event of dispute as to whether the Court has jurisdiction, the Court shall decide”.

So as not to detain your Lordships from making another trip to increase your steps through the Lobbies this evening, I will not read the whole of the summary. However, I make the point that the UK Government have proactively promoted the binding force of interim measures, advocating that other states, such as Russia, treat them as binding and comply with them. Given the provenance of that advice, I take it—and I hope your Lordships take it—very seriously.

Photo of Lord Green of Deddington Lord Green of Deddington Crossbench

My Lords, I hope that the Minister when he speaks in a moment will explain what this is intended to deal with. It is only specific to these circumstances; is it that a certain number of lawyers are making a certain amount of money and he thinks that that is not helpful to the policy that the Government intend to put forward?

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

My Lords, we support my noble friend Lady Chakrabarti in her defence of the rule of law and interim relief in cases involving the alleged expulsion of people to unsafe places. The Government were happy to support the court’s decision not to grant such relief in the current Rwanda cases, but now they want to take away this jurisdiction, forcing more applicants to Strasbourg pending a final UK judicial determination. If the Government are right that Strasbourg interim measures are not binding, Clause 54 is unnecessary. If the European Court of Human Rights is correct that they are binding, our amended Clause 1 should be enough to safeguard international law. With respect to those comments, I urge my noble friend if she is so minded to test the opinion of the House on her Amendment 152, which we would support rather than Amendment 153.

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

My Lords, the Bill establishes a bespoke claims and appeals process which provides for a person subject to the duty to remove to challenge their removal to a safe third country. The duty to remove will be temporarily suspended while consideration is given to any suspensive claim or appeal resulting from the refusal of that suspensive claim. That is of itself an effective remedy for those subject to the duty to remove, and these measures will ensure that all suspensive claims raised in response to a removal notice under the Bill will receive full judicial scrutiny.

Clause 53 is critical to the success of the Bill in preventing the United Kingdom’s domestic courts from granting interim remedies in relation to legal challenges which would prevent or delay the removal of a person who meets the removal conditions under Clause 2. Were other human rights claims and legal challenges to be made, they would be considered after a person has been removed. Clause 53 provides a necessary and effective safeguard against the endless merry-go-round of legal challenges that those with no right to be here use to thwart their removal.

Amendment 152 tabled by the noble Baroness, Lady Chakrabarti, would incentivise people to obtain injunctions or submit judicial reviews to delay or prevent removal, negating the carefully crafted and balanced provisions we have set out in the Bill, which I have just described. We cannot allow that to happen. The amendment would substantially undermine the Government’s ability promptly to remove those who enter the UK illegally, and our overall objective of stopping the dangerous small-boat crossings.

Amendment 153 similarly seeks to weaken the Bill by striking out Clause 54, which relates to interim measures of the European Court of Human Rights. Let me be clear: it is not the Government’s intention to ignore a Rule 39 interim measure. Indeed, Clause 54 provides a clear framework for a Minister to exercise discretion where a Rule 39 interim measure is indicated. That will mean that a Minister may suspend removal in response to a Rule 39 interim measure but, crucially, is not bound by UK law so to do. This will be dependent on the facts of each case.

As I have said before, the Government take their international obligations very seriously. Nothing in the clause requires the Government to act in breach of international law. I reassure the noble Baroness that reflections within the Strasbourg court are ongoing, and we are closely following the process. We are confident that they will lead to meaningful change.

The inclusion of Clause 54 in the Bill reflects our concerns about the interim measures process. We believe that there needs to be greater transparency and fairness in the process to ensure the proper administration of justice. We cannot allow our ability to control our borders to be undermined by an opaque process which does not give the United Kingdom Government a formal opportunity to make representations or appeal the decision. This process risks derailing our efforts to tackle the people smugglers and stop people from making the dangerous, illegal and unnecessary journeys across the channel.

For the reasons I have set out, I therefore invite the noble Baroness to withdraw her amendment and, if she is minded to test the opinion of the House on Amendment 152 or 153, I strongly urge noble Lords to reject the amendment.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, I am so grateful to all noble Lords who have stayed. I say to all noble Lords that the length of debate does not indicate its importance. I am particularly grateful to the Minister for his indication that productive discussions are still in train between His Majesty’s Government and the Strasbourg jurisdiction; I take from that a suggestion to reinforce my suspicion that Clause 54 was always a negotiating position to attempt to improve the due process position in relation to interim measures in the Strasbourg court. On that basis, I want to allow the Government more time to proceed with those negotiations before Third Reading.

However, in relation to Clause 53 and my Amendment 152, on depriving His Majesty’s domestic judges of the inherent jurisdiction to grant interim relief, that jurisdiction does not come from any government or party statute; it comes from the common law. To deprive His Majesty’s judges of the ability to grant interim relief is anathema to our common-law system. With gratitude, again, to all noble Lords who stayed—perhaps even more to those who did not speak than to those who did—I would like to test the opinion of the House.

Ayes 153, Noes 128.

Division number 11 Illegal Migration Bill - Report (2nd Day) (Continued) — Amendment 152

Aye: 151 Members of the House of Lords

No: 126 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Amendment 152 agreed.

Clause 54: Interim measures of the European Court of Human Rights

Amendment 153 not moved.

Clause 55: Legal aid