We want the Bill to succeed. We want it to work and to do what our voters want, but at present it does not. Clause 2, as it stands, does not work, which is why I shall press my amendment 10 to a vote, supported as it is by well over 60 Members of Parliament. Clause 2 needs to be amended with clear and unambiguous words, and with a full “notwithstanding” formula, not the one currently on offer. This formula
has been used throughout our legislative history, for hundreds of years, but most recently it has been enacted in our most important domestic constitutional legislation, without opposition—namely, in section 38 of the European Union (Withdrawal Agreement) Act 2020.
The sovereignty of the Crown in Parliament is democracy, and it is described in a leading case by the great Lord Bingham, our greatest modern jurist, as the “bedrock of our constitution”. Democracy delivers the wishes of the voters who elect us through the legislation that we pass as Acts of Parliament, and it is this democracy for which people fought and died. Nothing can be more important to their daily lives, including illegal immigration, and that is why this issue is so important.
However, it is also important to stress that genuine refugees are fairly protected—this country has always done that—as in the case of Afghanistan, Hong Kong and so forth. Yesterday’s YouGov poll makes it clear how strongly people feel about all this. It is a legal and constitutional, and therefore also essentially political, problem.
The reason why sovereignty is so fundamental is that the courts recognise that they have a duty to interpret, adjudicate on and obey the laws made under that parliamentary sovereignty, where legislative words are clear, express, explicit and unambiguous. Therefore, the use of a comprehensive “notwithstanding” formula, as in my amendment, would ensure that we make the Bill work in line with its intended purposes, and that it would not be frustrated by claims of international law or other contrary law.
The Bill in its current form will not prevent, as everyone knows, further ingenious individual claims, followed by further Supreme Court decisions. The recent Supreme Court judgment on 15 November 2023, as I pointed out in an intervention, makes my very point. It shows that the words in the immigration and asylum Acts at that point in time were not clear and unambiguous. However, and this is vital, it seems to have escaped many people’s notice that one of the claimants—ASM, an Iraqi—had his claim dismissed in that very judgment because, in the words of Lord Reed, the President of the Supreme Court himself,
“in any event, the principle of legality does not permit a court to disregard an unambiguous expression of Parliament’s intention such as that”—
I say this to the hon. Member for Aberavon (Stephen Kinnock) on the Opposition Front Bench—
“with which we are concerned in the present case.”
This was emphatically because the Retained EU Law (Revocation and Reform) Act 2023 and related immigration legislation was so clear and unambiguous in that case as to require the Court to dismiss the claim of the Iraqi precisely as a matter of parliamentary sovereignty.