That is certainly the case, but it is equally the case that we have 160,000 unresolved asylum cases. It is also true that there is no persecution in France on this account.
As the Government have rightly said, the Labour party voted against the Nationality and Borders Act 2022, wants to scrap the Rwanda deal and opposes the Government’s Bill to detain and remove people swiftly from the UK. This amounts to demonstrating that the Labour party is in favour of open borders and is not on the side of the British people, who want us to deal with this problem.
The current Leader of the Opposition, in an article in Counsel on 9 January 2015, wrote, contrary to what the former Lord Chancellor and Home Secretary said, that the sovereignty of Parliament has nothing at all to do with the Human Rights Act. He clearly does not understand what the sovereignty of Parliament is, or the enactments and case law involved. Quite clearly, the statute itself was not intended to lead to circumstances in which illegal migration is not prevented but almost encouraged, to the profound detriment of practical control over our borders.
I tabled an amendment to the Nationality and Borders Bill in December 2021 that had a clearly expressed “notwithstanding” formula. The amendment was strongly supported by Conservative Back Benchers and would have greatly helped to ensure the flights to Rwanda. With this new Bill, we have a further opportunity to tackle the problem of illegal migration. This Bill is necessary because of the smuggling and criminality of the unscrupulous gangs that exploit migrants and cause death.
In addition, because of the consequences of the failure to control illegal migration, we have endured monumental expenditure of up to £6 million a day,
disruption to local services, hotels, health services and social housing, and instances of criminality. It does no good to perpetuate a situation with such adverse consequences for our constituents and our voters, and the Government understand that.
Indeed, I am confident that, when the Bill is enacted, the courts will apply it and court procedures will be adapted accordingly, provided the intention of the words used in the Bill, as enacted, are clear, express and unambiguous, as I propose. It is not appropriate for the current situation to continue to the point where, as I have indicated in the past, the number of illegal migrants is growing exponentially.
My amendments, and further discussion with the Government, are conducive to resolving the issues properly, fairly and reasonably—with an appeal system and other measures, as I shall mention in a moment, and in line with domestic and international law—and to removing the unintended and unexpected legal consequences of the Human Rights Act and the courts’ rules in respect of illegal migration in small boats, which together have led to the breaching of our borders on an unprecedented scale. That is emphatically not in our national interest, and it was not anticipated when the Human Rights Act was originally passed. My amendment would ensure that what Parliament intends actually happens.
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The Illegal Migration Bill is designed to be both fair and efficient. Those who believe that there is some special, fundamental reason why they should not be sent to Rwanda or another safe country can put their case before a judge, but that should be part of a comprehensive legislative scheme that sets out permissive routes of challenge. These permissive routes of challenge—the suspensive claims—are carefully calibrated and fair. They include ample provision for late claims, new evidence and compelling circumstances. Other judicial review claims are still allowed in the usual way; it is just that they cannot prevent removal. That is the right balance between fairness and deterrence.
We do not want or need lawyers and judges to invent new blocks on removal with judicial activism. The statutory block on interim relief would prevent them from doing so. It would prevent situations similar to that last year when courts unexpectedly issued injunctions preventing the flight to Rwanda and when cases were referred back to the Home Secretary for review.
Multiple cases have made it clear that the power to grant injunctions can properly be restricted by statute. We are not in the business of shutting down access to the courts. All we want is for the regime of access to the courts, as provided by this Bill, to be properly and securely bounded. The Government have already made that clear in their legislative scheme; we just want to make sure that the decision is secure and effective in legal terms. The Human Rights Act was not intended, as I have said, to protect illegality, and in the specific context of the small boats problem, the Bill, if amended further following discussions with the Government, can be improved to achieve its ultimate objectives in that national interest.
It is important to note that there is explicit case law from the most pre-eminent jurists that although there are many reasons why Parliament would take into account our obligations in international law when it legislates,
the courts are not empowered to hold an Act of Parliament void on the grounds that it contravenes general principles in international law, as was made clear in the case of Mortensen v. Peters, and nor may a court hold an Act invalid because it conflicts with a treaty to which the UK is party, as set out in the case of Cheney v. Conn. That is what makes it vital to use express, clear and unambiguous wording in an Act of Parliament, as is intended by the amendments and by reference to what I said earlier on the question of the construction of an interpretation of provisions. Words such as “notwithstanding” were included in the European Union (Withdrawal Agreement) Act 2020 to guarantee the sovereignty of the United Kingdom.
I also refer to the magisterial words of the great Lord Bingham in chapter 12 of “The Rule of Law”, that
“the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it.”
He also quoted and endorsed the words of the celebrated Australian constitutional authority Jeffrey Goldsworthy, who is pre-eminent in this field, in chapter 10 of his book “The Sovereignty of Parliament”.
We must stop people making these hazardous and lethal journeys in small boats. We must stop the criminality and stop illegal migration, its costs and its impact on our local and national resources. With my amendments today, along with those tabled by my hon. Friend the Member for Devizes (Danny Kruger) and my right hon. Friend the Member for Middlesbrough South and East Cleveland (Mr Clarke), as well as those that will be debated tomorrow, tabled by my hon. Friend the Member for Stoke-on-Trent North (Jonathan Gullis) and my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes), I believe that the Bill can achieve that objective with good will.
The amendments are also supported more broadly, including by experts such as Professor Richard Ekins and former First Parliamentary Counsel Sir Stephen Laws in their Policy Exchange report. We have asked the Government to engage with us constructively and give us firm assurances today on the Floor of the House that they will improve the Bill in the light of our amendments. On the basis that they do give such assurances, which I understand that they will, I will not press my amendment to a vote.