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A Summary of the Public Law Project’s Report
The Illegal Migration Act 2023 represents a dangerous step in the Government’s treatment of human rights both domestically and on an international scale. The Public Law Project, in collaboration with other human rights organisations such as the Bonavero Institute of Human Rights, released a report on the constitutional dangers of the Act. We have provided a summary, please read the full report here: https://www.libertyhumanrights.org.uk/wp-content/uploads/2023/03/The-Illegal-Migration-Bill-Constitutional-Implications.pdf.
The authors outline five key areas that the Act undermines:
1. Parliamentary sovereignty
2. The rule of law
3. Pre-existing international human rights obligations
5. The separation of powers
These are essential elements to our constitution and the Government’s disregard of them represents a growing threat to the balance struck between our institutions that is held together by conventions; conventions which this Government increasingly seems to have no respect for.
Sovereignty is the concept that Parliament is the ultimate lawmaker in the country and has supreme authority. As a result, it is the legislature, not the executive, which should have the final say on any and all legislation in this country.
One way in which the Act undermines the concept of sovereignty is its process through Parliament. The Government has rushed the Act through its Parliament in a way that obstructed its ability to conduct meaningful and effective scrutiny. Not only was its Second Reading expedited against convention, but it was also only given 12 hours of debate and had over 100 significant amendments published at late notice. The Home Secretary did not appear before the Joint Parliamentary Committee on Human Rights to address concerns they had about the implications of the Act, and the Home Office did not publish a full impact assessment. It also obfuscated the ability of Parliament to receive specialist independent advice from the Independent Anti-Slavery Commissioner as the position has been left vacant for over two years. The Home Secretary also issued a statement saying the House of Lords ‘must not frustrate the will of the British people’, using their unelected status to undermine their authority and dilute the effect their vote would have if they had made significant opposition.
Another way in which the Act has undermined the concept of sovereignty is its authorisation of expansive delegated powers, there being over 20. Delegated powers mean that authority is vested in Ministers to make secondary legislation that is not subject to the scrutiny of Parliament before it becomes law.
Therefore, the actions of the executive have rushed through this piece of concerning legislation with little to no parliamentary scrutiny. This heavily undermines the concept of sovereignty as it means the executive is attempting to assume the role of supreme lawmaker, acting as though Parliamentary approval is no more than a ‘rubber stamp’ exercise.
The Rule of Law
The Government has included several ouster clauses within the Act which attempt to remove the ability of the judiciary to review the legislation. It has legislated that decisions of the Upper Tribunal will not be subject to review, including for errors. The authors of the report have warned that “these ouster clauses come gravely close to being blanket bans on reviews of judicial scrutiny.” What is worse is that the Act imposes tight time restrictions on the tribunals to deliver judgements, which greatly increases the margin for error. Therefore, at the same time, the Act has widely increased the number of unlawful decisions to remove migrants, and simultaneously removed their route to recourse. Additionally, the Government has disapplied Section 3 of the Human Rights Act, which enables the courts to interpret and apply legislation in a way that will mean the UK remains compliant with its obligations. Its disapplication represents the fact that the government wants UK legislation to be interpreted in line with the executive’s immigration policy, ignoring its overarching legal obligations.
There is also a breach of the rule of law in regard to the retrospective nature of the Act. A significant number of provisions apply to persons who entered or arrived on or after the 7th March 2023, before the Act had become law. This sets a dangerous precedent that the Government can fail to abide by primary legislation enacted by Parliament and then retrospectively legitimise its conduct. This also abrogates another fundamental principle that laws are publicly promulgated and available to all, enabling them to abide by them. One of the key issues with retrospectivity is that it criminalises the actions of people who, at the time of their act, would have been unpunished. Joseph Raz formulated that avoiding retrospectivity was a fundamental aspect of the rule of law and should not be breached.
Therefore, the actions of the executive by trying to oust any review of the legislation’s lawfulness, as well as criminalising people retrospectively, undermine the rule of law in a significant way.
Human Rights Obligations
The Illegal Migration Act poses a threat to the UK’s pre-existing obligations by imposing a duty upon Government officials and Ministers to perform acts which are contrary to previous treaties and agreements the UK is a signatory to. Indeed, when the Act was introduced to Parliament, the Government stated it could not guarantee that its provisions are compatible with the UK’s obligations, suggesting the government is happy to push forwards anyway and risk their commitments in pursuit of its aims.
The Illegal Migration Act breaches the Refugee Convention in a few significant ways. Firstly, it rejects the underlying principle that responsibility for refugees should be shared among states by insisting that they stay in the first ‘safe’ country they reach. This also imposes a disproportionate responsibility on those first countries, threatening their capacity and willingness to provide protection and long-term solutions. Secondly, it does not protect the principle of non-refoulement, which prevents governments from returning refugees to countries where their life or freedom would be threatened. The Secretary of State when removing individuals to a ‘safe third country’ is not required to assess whether the country is safe for the particular individual or whether they will be able to claim asylum there. Therefore, this creates a real and foreseeable risk of refoulement.
The Illegal Migration Act also poses breaches to the European Convention on Human Rights. It carries provisions allowing Ministers to disregard interim measures from the European Court of Human Rights, which were used last year to prevent the deportation of refugees to Rwanda. Its policies of removal also pose a serious violation to Article 3 rights, which means that people’s right to humane and non-degrading treatment (such as torture) could be violated by being removed.
The Act also represents certain groups of people being subject to lesser protections on a discriminatory basis. Lord Scarman’s famous statement that, “Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection” will cease to be the case.
Not only is this a danger to human rights protections in the UK, it also has wider ramifications for the protection of human rights on a global scale, as the UK is setting an example that states can ignore their obligations. Lord Bingham has warned against this, saying “[h]owever attractive it might be for a single state to be free of legal constraints that bind all other states, those states are unlikely to tolerate such a situation for very long and in the meantime the solo state would lose the benefits and protections that international agreement can confer”. Therefore, the Act is a danger to human rights and the treatment of migrants, asylum seekers and refugees on an international scale.
By convention, the Government must seek the consent of the devolved nations when legislating on certain matters, such as immigration and nationality. However, there was no consent sought by the Home Office when passing the Act, which threatens to undermine the fragile balance of devolution settlements across the UK. For example, in Scotland, “this is a constitutional quagmire for the Scottish Government, because the Scotland Act 1998 prevents the Scottish ministers from acting in contravention of the European Convention on Human Rights, but the Illegal Migration Bill would compel them to do so.”
The Separation of Powers
Lastly, the separation of powers doctrine states that the three organs of the state (the executive, the legislature and the judiciary) must not encroach upon the function of the others. However, by undermining the sovereignty of Parliament as well as the power of the devolved nations, the executive is encroaching upon the legislature. Similarly, by drafting such strict ouster clauses and legislating out of the Human Rights Act, it is taking away power from the judiciary. Therefore, the executive can be seen as attempting to assert not just influence but authority over all three branches of the state. This should be avoided as much as possible given the delicate structure of the constitution, that is upheld through balancing and mutual respect and deference on the parts of each branch, whilst also recognising Parliament’s supreme authority. Here, it can be seen that the executive is trying to usurp this authority, representing a highly dangerous constitutional conflict.
Author: Nina Sherwood
Public Law Project. (2023, May 2023). The Illegal Migration Bill: Constitutional Implications. Retrieved from Liberty Human Rights: https://www.libertyhumanrights.org.uk/wp-content/uploads/2023/03/The-Illegal-Migration-Bill-Constitutional-Implications.pdf