Making bad law, badly is bound to have bad consequences – but what is to be done?
The Government’s Illegal Migration Bill will soon complete its passage through the House of Lords.
If peers give it its third reading on Monday, all that will remain is for the Lords and the Commons to reach agreement on the particular issues on which peers have amended the Bill.
At report, over three days, the Lords defeated the Government on 20 votes to change the Bill. The Government has also amended the Bill in various ways during its time in the upper House.
So, the Commons will almost certainly be getting the Bill back soon… even possibly early next week.
What to expect when Members of Parliament consider peers’ amendments
It seems highly unlikely that Ministers will accept any of the amendments the Lords are sending back – particularly after Suella Braverman had sought to pressure peers before they made their changes by claiming her Bill was “the will of the people”.
Presumably, the Home Secretary will suggest the same to MPs and ask them to overturn what the Lords have done.
But how can MPs even be confident they know what the Bill is and what it will do – still less that it is what anyone truly wants – given how little time and opportunity they took or were given to consider it when it was last in their House?
Making a sham of making laws
The Government chose to rush this Bill through the Commons; and MPs – particularly those on its back benches – allowed that.
Instead of the Bill being considered by a public bill committee, taking evidence and the committee scrutinising each of the Bill’s 60-odd clauses line-by-line over several days, the Bill received two days of chaotic debate. That allowed ministers to avoid ever being put on the spot to explain what they believe the Bill to do and how it will work.
And after those two days of mess, the Home Secretary gave the Commons barely a day’s notice of over 100 hundred changes to what had just been debated and only one more day to discuss all of this. Again, with no real opportunity to put her or her ministers to the task of explaining any of it.
All this took place before any of the impact assessments ultimately produced by the Government were ever published.
Which begs the question how MPs can truly say they know what this Bill is or what it will do.
Then again, do Ministers know what they have created?
On its first introduction in the Commons, the Bill came with a statement from the Home Secretary which said:
“I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill.”
‘The Convention rights’ is shorthand for the European Convention on Human Rights – particularly the rights from this Convention that have been made part of UK law by the Human Rights Act 1998.
On bringing the Bill to the Lords, Lord Murray, Home Office Minister, made exactly the same statement as had the Home Secretary.
When pressed about this statement, ministers have consistently disavowed any notion that their Bill will violate human rights.
Their explanation for stating that they cannot formally declare that it will not do so is that the Bill is “novel” and “untested” – in other words, they don’t really know what it will do and how it will work.
But does it matter if Ministers say they don’t know this, and MPs have barely tried or had opportunity to find out?
Making law badly is one thing, this is something else…
It should go without saying that it is wholly irresponsible to make law in such a careless fashion.
However, to understand just how utterly reckless the Government is being – and any and every MP who may enable them – it is necessary to reflect a little more on what is the core of this Bill. And on current asylum policy.
That core is an overriding and inflexible requirement in law that the Home Secretary must remove from the UK anyone, who arrives without any permission that her rules require the person is to have. And a bar to that person ever having their claim for asylum considered in the UK or ever being permitted to come or stay here.
This is secured by several provisions designed to prevent any other UK law or UK courts from providing any constraint or mitigation to what the Bill requires the Home Secretary to do and not do.
There is some remaining obligation to avoid expelling someone to torture, persecution or similarly grave harm. And a severely limited process is created by which to hold the Home Office to that.
But no change of course is permitted.
No matter how strong the person’s connection to the UK may be, how involuntary their journey to the UK was, how clear is their entitlement to asylum or how impractical or even impossible it may be to send them somewhere else.
The Home Secretary’s existing asylum policy
The asylum system has been rapidly collapsing ever since Suella Braverman’s predecessor, Priti Patel, introduced a new policy to refuse to consider the asylum claims of people arriving here.
The UK still receives significantly fewer people seeking asylum than its EU neighbours. Yet its backlog of asylum claims and the huge cost of this – particularly the costs of accommodation and detention – has ballooned far out of control.
And the response by this Bill… Make this policy law. Turn what the Home Secretary is currently allowed to do into something she must do.
Remember the words ‘novel’ and ‘untested’
Refusing to consider people’s asylum claims is not at all new – the Government have had much practice and done much harm by it.
So, what is novel and untested?
Removing the Home Secretary’s power to do anything differently is what is new, as is removing any effective legal and judicial oversight.
In other words, what is being done by this Bill is to take an enormous gamble that there some different result from the same policy can be achieved by making that policy impossible for the Home Secretary to reverse.
A more irresponsible law and more irresponsible way of making it are hard to imagine. But MPs are now stuck with merely reviewing the limited changes that peers have made.
Most of those changes have no real impact on the core of this Bill. There are, however, three Lords’ amendments that modestly temper this. MPs should do the bare minimum and keep all the changes that have been made – but especially these three, which:
- stipulate that the Home Secretary is not required to violate human rights law by anything in the Bill;
- provide an end to the limbo the Bill can inflict upon a refugee if the Home Secretary has failed to find some safe place to remove such a person within six months of their claiming asylum; and
- retain the power of UK courts to defer anyone’s expulsion while the legality of that is under consideration.