Incompatible

The Illegal Migration Bill (now in force as the Illegal Migration Act) was debated without the usual ministerial statement that it was compatible with the European Convention on Human Rights. The ‘statement of compatibility’ is a non-compulsory feature of the legislative process introduced by the Human Rights Act from 2000. Governments have dispensed with it only three times since: in 2000, after the House of Lords voted against repealing Section 28, which banned local authorities from promoting homosexual relationships (it was eventually repealed in 2003); for the 2003 Communications Act, which banned paid political advertising in broadcast media, though the ban was later agreed to be compatible with the right to free expression, in a case that went to the human rights court in Strasbourg; and for the 2012 House of Lords Reform Bill, restricting prisoners’ voting rights, which was abandoned altogether.

Derry Irvine, lord chancellor from 1997 to 2003 and sponsor of the Human Rights Act, said at the time that

ministers will obviously want to make a positive statement whenever possible. That requirement should therefore have a significant impact on the scrutiny of draft legislation within government. Where such a statement cannot be made, parliamentary scrutiny of the bill would be intense.

The House of Lords subjected the Illegal Immigration Bill to intense scrutiny and amended out most of its most punitive provisions. But then, with minimal extra scrutiny, the whipped majority in the House of Commons struck out the amendments and tossed in some minor sweeteners (such as locking up fewer children than was first proposed).

The stakes are much higher now than on the earlier no-statement occasions. The Illegal Immigration Act prevents anyone coming to the UK without the right to enter from applying for asylum. Claims to be a victim of human trafficking are barred. This caused Theresa May to vote against the bill in the House of Commons: as home secretary she had sponsored the Modern Slavery Act, which gave protection to victims and brought the UK into line with international treaties and conventions. The Illegal Immigration Act empowers ministers to lock up more arrivals in camps and hulks, and to transport people to ‘safe third countries’ for their asylum claims – to be recognised as refugees in those countries. Even if they receive refugee status elsewhere, they will be banned from entering the UK. Rwanda has been paid to receive them, but the process awaits a final decision by the Supreme Court on whether the scheme is legal.

The failure to make the statement does not amount to an acceptance that the act breaches the Human Rights Convention, but it puts the legislation at risk of a ‘declaration of incompatibility’ by the courts. That could set up another fight between Parliament (i.e. the government) and the Supreme Court, but with no guarantee that the government would lose. Besides, the stakes are much higher now than on the earlier no-statement occasions, because of the potential response from the European Union.

On its face, and implicitly by the lack of a statement of compatibility, the act conflicts with the UK’s obligations under the European Convention on Human Rights, the UN Refugee Convention and the conventions that protect trafficking victims.

There is a real risk that the EU will terminate the mutual arrangements for exchanges of information between UK and EU law enforcement agencies. Part 3 of the Trade and Co-operation Agreement (TCA) – the Brexit agreement – entitles the EU to suspend all co-operation on matters of law enforcement between the UK and the EU on three months’ notice, ‘in the event of serious and systemic deficiencies within one party as regards the protection of fundamental rights or the principle of the rule of law’.

Part 3 of the TCA replaced the data exchange schemes that had operated before Brexit. The reinvention of those wheels was generally successful and information continued to flow. One casualty, a big one, was extradition: 13 EU states, including France, Germany and Poland, no longer extradite their citizens to the UK. The data that are still shared include passenger lists on aircraft, vehicle licence numbers and criminal records. Information is available to police forces in real time. They regard its availability as vital for the prevention and detection of many crimes, which have an increasingly international dimension – not least, the trafficking of human beings across borders.

If the EU suspends its co-operation, all the mutual agreements between law enforcement in the UK and the EU will cease. There is no ‘oven ready’ replacement.

The prospect of such a suspension may have been a reason for the abandonment of plans to repeal or dilute the Human Rights Act, the object of Dominic Raab’s desire during his hapless tenure as minister of justice. If Raab’s proposals bore down on asylum seekers, the Illegal Immigation Act does it in spades. Although many member states have their own policies that punish asylum seekers, the EU itself may well ask whether this act triggers a suspension of the TCA.

The prospect of suspension will gladden the hearts of human traffickers the world over. The French or Belgian police will no longer have the means to warn their UK colleagues that a RHIB is approaching or has sunk, overloaded, off their coast. Neither side will be able to share intelligence about an imminent operation to bring people over. Ministers will have been warned but take the risk anyway.