Borders, Citizenship and Immigration Bill [HL]

My Lords, I support Amendment 54. In its report on Part 3 of the Bill, published on 12 March, your Lordships’ Select Committee on the Constitution examined the effect of the Bill’s proposals to introduce changes to the common travel area, which, as the noble Lord, Lord Smith of Clifton, has told us, has existed since the 1920s, enabling people to move freely between the United Kingdom, the Republic of Ireland and the Crown dependencies—Guernsey, Jersey and the Isle of Man—without being subject to immigration control, as set out in Section 1(3) of the Immigration Act 1971. The citizens of the Crown dependencies are of course not represented here at Westminster. That Select Committee sought to draw the attention of the House to our view that there does not appear to have been open, effective and meaningful intergovernmental consultation by the United Kingdom Government with the insular authorities in advance of the introduction of the Bill. We found that such consultation as did take place gave the impression of being muddled and tardy, showing little appreciation of the constitutional relationship between the United Kingdom and the Crown dependencies. The Chief Minister of Jersey told your Lordships’ Select Committee that there is a mismatch between the policy intent and the possible effects of the legislative change. This, he said, "““opens the way, at any time of the UK Government's choosing, for the significant change of practice that they say they do not presently envisage””." The Chief Minister added: "““There are absolutely no safeguards to prevent such controls being implemented or to protect the long-standing rights of Channel Islanders to travel freely to the United Kingdom, in accordance with their constitutional relationship as set out in numerous Royal Charters””." The Chief Minister agreed, "““with the view that the proposed powers are excessive in comparison with the policy intent and are therefore inappropriate””." Your Lordships’ Select Committee found that it was, "““difficult to reconcile the modest policy aims stated by the Government (of occasionally, on the basis of intelligence, stopping and questioning people arriving from or departing to the Crown dependencies) with the far-reaching legal powers claimed by the proposed amendment to section 1 of the Immigration Act 1971 (which would enable fixed and routine border controls). This mismatch is in and of itself constitutionally inappropriate: Parliament should not grant to Government wide legal authority in excess of the powers properly needed to implement a proposed policy””." Your Lordships’ committee concluded that, "““the policy-making process that has led to … clause 48 has not been informed by any real appreciation of the constitutional status of the Crown dependencies or the rights of free movement of Islanders””." I am extremely grateful to the noble Lords, Lord West and Lord Brett, for discussing these matters with me yesterday. I understand that they were at that time unsighted, through no fault of their own, as to the attitude of all the insular authorities following the belated consultation on the proposal of a Memorandum of Understanding, to which the Isle of Man and the Guernsey authorities are agreeable but Jersey is not. Senator Le Sueur, the Chief Minister of the States of Jersey, wrote to the noble Lord, Lord West, on 27 March. They are not represented at Westminster so I crave your Lordships’ indulgence in quoting one or two paragraphs from it. The letter states: "““In principle, we … support the need for increased supervision of the routes within the British Islands and the need for authorised persons to act on specific intelligence. Our Customs and Immigration service and Police actively cooperate with UK officers to share information for this purpose and to take action when appropriate. We welcome further initiatives, such as e-borders, which will strengthen our mutual cooperation.""However, the government of Jersey cannot accede to a position in which British citizens resident in one part of the British islands could be treated as if they were nationals of a foreign state such as the Republic of Ireland. If the text of the proposed Bill is adopted, it sets out such a distinction in substantive legislation to which we are strongly opposed””.""You maintain the UK government has no intention of changing the constitutional relationship with the Crown Dependencies but clause 48 does precisely that. The unwritten constitutional relationship is founded upon Charters which have been renewed on many occasions by successive sovereigns until 1688 when they (and many other charter rights of English citizens) were definitively affirmed. I cannot imagine that the UK government would ever contemplate peremptorily withdrawing the constitutional rights of citizens of the United Kingdom. … It is also unclear to me how the proposed legislative change is consistent with the United Kingdom’s obligations under Article 13 of the Universal Declaration of Human Rights, Article 12 of the International Covenant on Civil and Political Rights and, although the Protocol is only signed and not yet ratified, Articles 2 and 3 of Protocol 4 of the European Convention on Human Rights. I would value your response on those points.""Whilst the government of Jersey fully understands the current policy intention not to introduce fixed or routine border controls, the substance of the legislation would provide for such controls””." He continues that he would respectfully suggest that, "““the opportunity might be taken to reconsider this matter and to include alternative legislative provisions””." Hear, hear, to that. He concludes: "““We understand the need to ensure that the UK’s security is protected and are pleased that you are equally willing to protect Jersey’s rights. However I am not convinced that the proposal to develop a Memorandum of Understanding which ‘affirms [the UK] policy intentions in this area and sets out how [the UK] will manage the necessary processes’ will meet all of our needs. While we are naturally comforted by the policy intention upon which the proposal for an MoU is based, the essential problem with an MoU is that such a document in itself confirms by necessary implication that the existing Charters and constitutional relationship will have been overridden as the MoU only comes into existence at all because the Bill contains a clause which is inconsistent with them. It is also not clear how much comfort could be derived from a Memorandum of Understanding, which may be withdrawn unilaterally at any future date””." Ipsissima verba. Parliament does not like memoranda of understanding, which can be ignored or repudiated by Governments, present or future, at any time of their choosing and, in the present case, will not have been subject to any parliamentary scrutiny of any sort whatever. It must surely be right for the Government to come forward with amendments in place of Clause 48 that give effect to its policies, with parliamentary approval.