Parliamentary select committees can, on occasion, be wise, impartial and dispassionate. Unfortunately they are also vulnerable to being taken over by an unholy combination of those with an axe to grind, and members of the great and the good unwilling to rock the liberal boat. This is essentially what has happened to the Joint Committee on Human Rights (or JCHR). Its report on the Illegal Migration Bill, published over the weekend, is a case in point.
The ‘Stop the Boats Bill’ aims to make it more difficult for irregular migrants to cross the Channel and then use judicial review and human rights laws as a means of presenting the UK with a fait accompli. It has passed the Commons but faces a rough passage in the Lords, particularly since Suella Braverman admits to a substantial chance that parts of it may be held non-compliant with the ECHR.
The report from the JCHR – chaired by SNP stalwart Joanna Cherry KC – is unlikely to help matters. It is not so much a balanced appreciation of the Bill as a nod and a wink to the Lords to neutralise it, coupled with detailed instructions to any peer who cares to read it about the necessary wrecking amendments.
The government needs to take courage and ignore this document
Take out the duty it puts on the Home Secretary’s duty to make arrangements for the removal of irregular migrants, it says. Excise any power to remove an unaccompanied child migrant (or alternatively allow it only when in the child’s best interests, which it never will be). Emasculate the Home Secretary’s right to designate safe countries by requiring that any such country be signed up to a whole raft of intrusive UN conventions and think like us on human rights. Severely limit powers to detain soi-disant unaccompanied children, and remove all restrictions on judicial review of detention. Get rid of the provision allowing the UK to ignore interim orders of the European Court of Human Rights of the kind that caused the Rwanda debacle last year. And so on.
There is also a defiant attack on the government’s determination to fix immigration policy firmly in the hands of UK ministers rather than that of outside bodies. The Refugee Convention 1951’s requirement to give protection to anyone arriving ‘directly’ from a dangerous place is read by our government narrowly. Contrast the wide reading by the UN and human rights establishments, which gives broad scope to those wanting to game the UK system, despite having spent considerable time in safety in France or Belgium, Unsurprisingly, the report demands that the Bill be altered to import the wide interpretation. The Bill negates any obligation to construe it in accordance with the ECHR: the Committee demands such a requirement.
The government needs to take courage, ignore this document, press on with the Bill and if necessary face down the Lords.
Why? First, the report is pretty openly partisan. As such, it is fair game for politically partisan treatment. It could have been, and to some extent probably was, inspired by the views of the opposition. Much of the evidence taken by the committee that wrote it came from bodies hostile to the extension of immigration control. It was in addition a majority report, split on absolute party lines. All four Tories on the committee opposed it; it passed by the votes of the six non-Tories. It remains to be seen whether the House of Lords, with its substantial de facto anti-government majority, splits similarly. If it does, this is of course its right: but equally it is hard to see that it deserves any more respect from the government than that paid by Lloyd George to the die-hard Tory House that stonewalled his People’s Budget in 1909.
Secondly, it is important for an elected government to make clear that, whatever its view of the European Convention on Human Rights in principle, its respect for it is not unconditional. It must be clear that it will not be frightened off a reform it has decided to back by an incantation of the words ‘human rights.’ A government’s primary responsibility is owed to the voters who elected it. It is not owed to any abstract supranational instrument or to the deliberately unaccountable judges who decide how it is to be interpreted, especially when the latter overtly admit they see it as a ‘living instrument’ and themselves as entitled to extend its reach they think fit. If this means a government saying that, when push comes to shove, its voters are more important than international judges, so be it.
Thirdly, the government needs to resist firmly any attempt to subject our domestic law any further to the details of treaties like the UN Refugee Convention and the UN Convention on the Rights of the Child (one of the report’s themes). One of the things that makes such conventions palatable to states is the lack, in most cases, of any external body able to give absolutely binding interpretations, and the corresponding ability of governments, within reason, to take a flexible attitude to what they mean. Currently the UK government has this flexibility as regards most of the human rights treaties it has signed. It would be leaving a serious hostage to fortune if, in the area of immigration law, it enabled them to be directly justiciable in the UK courts, which would almost certainly interpret them in a much more restrictive and legalistic way.
It is time now for Suella Braverman and Rishi Sunak to make common cause on the Illegal Migration Bill. They must show the Human Rights Committee, and more importantly the British people, that they mean what they say. They must nail their colours to the mast and make it clear that they will not be diverted by well-meaning demands from the great and the good to turn aside; and they must add that, if people don’t like it, the remedy is to vote in another government.
Comments