An illegal bill?
Not quite: there’s always habeas corpus
Is the government’s new Illegal Migration Bill a bill to deal with illegal migration? Or is it a migration bill that we should regard as illegal? The lawyers who draft bills for government departments are bound by strict naming constraints, but I wouldn’t put it past them to have slipped an arcane joke into the short title.
In what sense could the bill be illegal? Suella Braverman was unable to make the usual declaration under section 19(1)(a) of the Human Rights Act 1998 that the bill’s provisions were compatible with the human rights convention. But section 19(1)(b) allowed her to say she wanted parliament to proceed with it anyway.
Of course, a bill is not illegal simply because it does not comply with the human rights convention. Whatever parliament enacts is law. But Braverman’s inability to make the normal human rights statement is an acknowledgment that the European Court of Human Rights may rule against the UK on a future challenge.
Having made her statement in the bill published yesterday, the home secretary then tried to push back on it. She told Conservative MPs it “does not mean the provisions in the bill are incompatible with convention rights, only that there is a more than 50 per cent chance that they may not be” compatible. Perhaps she means that her bill, like the cartoon curate’s uneatable egg, is good in parts.
Curiously, the government’s human rights memorandum, published alongside the bill, does not identify any specific incompatibilities. Each apparent breach is justified by a “however” argument.
The closest it gets to acknowledging a breach is in relation to slavery and servitude, prohibited by article 4. The government is satisfied that safeguards in the bill “are capable of being applied compatibility with article 4”. But it adds:
The government has concluded that radical solutions are required to put a stop to the small boats crossing the Channel and the approach adopted in these provisions is therefore new and ambitious but taking such an approach means that the home secretary is unable to make a statement under section 19(1)(a) of the 1998 act.
Clause 1(5) of the bill says that: “Section 3 of the Human Rights Act 1998 (interpretation of legislation) does not apply in relation to provision made by or by virtue of this Act.”. This is the provision that requires courts to “read down” — effectively to reinterpret — legislation where it can be made to comply with the human rights convention.
But, as the government says, this clause does not make the bill incompatible with the convention. It just means defeats are more likely when cases get to the human rights court.
What happens if the Strasbourg court indicates what it calls interim measures — the equivalent of an injunction? Braverman told MPs the government had “initiated discussions in Strasbourg to ensure that its blocking orders meet a basic natural justice standard”. That, in itself, is not unreasonable: there should be an opportunity for the government to be heard before — or, at the very least, soon after — an injunction is issued under the court’s rule 39.
But look at clause 49 of the bill:
(1) The Secretary of State may by regulations make provision about interim measures indicated by the European Court of Human Rights as they relate to the removal of persons from the United Kingdom under this Act.
This clause is described in Home Office explanatory notes as a “placeholder” — which I think means a threat. The government seems to be saying that if Strasbourg does not change rule 39, the home secretary will take powers to ignore that rule.
But the human rights court has decided that a failure to comply with interim measures indicated under rule 39 amounts to a breach of article 34 of the human rights convention, which permits individual applications to the court. Article 34 is a treaty obligation and parliament cannot relieve the government of its duties to comply with international agreements.
So clause 49 envisages a future breach of international law. Maybe that explains the bill’s title. But the prime minister was right to tell his backbenchers that there was no need for the UK to pull out of the convention. That’s because the bill includes a number of deliberate exceptions and concessions.
Clause 1 of the bill is described as an introduction. This is how it begins:
(1) The purpose of this Act is to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes, by requiring the removal
from the United Kingdom of certain persons who enter or arrive in the United 5 Kingdom in breach of immigration control.
We are becoming used to introductory provisions such as these. But this one is not purely decorative. Other provisions in the bill must be interpreted to achieve the purpose set out in subsection (1).
Clause 2 requires the home secretary to make arrangements for the removal of a person from the United Kingdom if the person meets four conditions. The third is perhaps the most important — that the person did not come directly to the United Kingdom from a country where the person’s life and liberty were threatened. So any genuine refugee who managed to get a direct flight to the UK could be able to stay.
That must be unlikely. But even if a person is to be removed to one of the 57 safe countries referred to in clause 5, the person may make a “serious harm suspensive claim” under clauses 37 to 48. The government accepts that some of the 57 countries, listed in the bill’s schedule, are not safe for male refugees.
Clause 3 says the home secretary is not required to remove unaccompanied children — but may do so.
These powers of removal apply regardless of whether the person
makes a protection claim
makes a human rights claim
claims to be a victim of slavery or human trafficking
makes an application for judicial review
But something is missing from that list.
Braverman told MPs yesterday:
This bill enables the detention of illegal arrivals, without bail or judicial review within the first 28 days of detention, until they can be removed.
However, the bill does not attempt to exclude the power of the court to grant the common-law remedy of habeas corpus, which can lead to the release of a detainee. This loophole had already been spotted by a leading immigration solicitor whom I spoke to last night. But it is no mere ideological commitment to the common law or accidental oversight.
The government’s human rights memorandum says:
Clause 13 provides that for the first 28 days of detention the First-tier Tribunal will not be able to grant bail and there will be no ability to challenge a decision to detain, by way of judicial review. There will be no restriction on the ability to apply for a writ of habeas corpus (or the equivalent procedure in Scotland) during this 28-day period.
Individuals will also be able to apply to the secretary of state for bail under schedule 10 to the Immigration Act 2016, although it will not be possible to challenge a decision by the secretary of state to refuse bail by way of judicial review. There will be no restriction on an individual’s ability to access damages in respect of unlawful detention in relation to the 28-day period.
Given that individuals will be able to challenge their detention through the courts from the outset of their detention via habeas corpus, and the courts will ensure compliance with article 5 [of the human rights convention which deals with the right to liberty] when determining applications for a writ of habeas corpus, the government considers that these provisions are compatible with article 5(4).
Given that there will be no restriction on an individual’s ability to secure damages in relation to any period of unlawful detention, the government is satisfied in terms of article 5(5) compliance.
If the government wants this bill to deter illegal migrants, it must hope they won’t read the small print.
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Brilliant and necessary analysis. Finally persuaded me, though I have no specific interest in legal matters, to subscribe.
(Haven't seen you since Latymer 6L2, Joshua, but I've followed your career with admiration. This kind of clear, informed writing is just what the world needs with this government in power.)
Enver Solomon of the Refugee Council has it right: performative cruelty, of which Sue-Ellen Braverman and her supporters ought to be thoroughly ashamed, though little chance of that.