1) On 7 March 2023, the U.K. Government introduced a bill into the U.K. Parliament to curb (what the Government sees as) unacceptable numbers of refugees arriving by small boats on the south coast of the U.K.
2) Some EU states are similarly seeking to find ways to deter economic migration, while honouring commitments to refugees, properly so called.
3) There is plainly a serious problem with people traffickers. But the U.K. Government has chosen to penalise the people who are claiming refugee status because they have arrived unlawfully. Instead , the Government asserts, they should have used lawful corridors of entry .
A) What does the U.K. propose to do ?
4) In her speech to the House of Commons, the Home Secretary, the responsible Cabinet minister, said:
“ …the [Illegal Migration Bill] enables detention of illegal arrivals , without bail or judicial review within the first 28 days of detention, until they can be removed.
It puts a duty on the Home Secretary to remove illegal entrants and will radically narrow the number of [ legal] challenges and appeals …
Only those under 18, medically unfit to fly or at real risk of serious and irreversible harm….in the country we are removing them to , will be able to delay their removal. Any other claim will be heard remotely, after removal”.
It follows that the U.K. will need to have made inter state memoranda of understanding with other countries if people are to be sent to other countries. There are very few such arrangements in place.
B) Ministerial statement of compatibility with the ECHR
5) In introducing any bill into the U.K. Parliament, the responsible minister must make a statement that the bill is compatible with the UK’s obligations under the European Convention on Human Rights ( section 19(1)(a) of the Human Rights Act 1998). But the responsible minister can also make a statement (section 19(1)(b)(ibid)) to Parliament that he or she is unable to make a statement of compatibility with the ECHR , but nonetheless wishes to go ahead with the bill.
6) The responsible minister has made a statement that he/she is unable to make a statement of compatibility in respect of the Illegal Migration Bill. In other words, there are serious questions about whether the bill is compatible with rights under the ECHR. For example, an obvious line of attack in the U.K. courts would be to argue that the bill, if enacted, would not comply with the right to a fair trial under Article 6 of the ECHR.
7) The Home Secretary has argued in the House of Commons that , because the Government’s approach is “robust and novel”, it cannot state that the bill is compatible with the Human Rights Act. Nevertheless they wish to go ahead
8) Since there is power in the Human Rights Act to proceed with a bill even where a statement of compatibility cannot be made, it is open to the Government to use the power.
9) But the Government’s reasoning is questionable. In fact , Governments frequently propose legislation which is novel and robust. Yet it is usual UK Government practice to develop “novel and robust” legislation in accordance with the UK’s international obligations.
10) If the Government had been advised by their principal legal advisers that, on balance, they would win a legal challenge, they would have made a statement of compatibility. Therefore it is reasonable to assume that the Government has been advised that, if challenged, it will very probably lose the legal challenge.
11) In addition to the assumed views of the Government’s own legal advisers, the EU Home Affairs Commissioner has apparently said that she believes that the U.K. bill is going to violate International Law. The significance of that intervention is that, if the U.K. seeks to make arrangements with EU states to send asylum seekers to those countries, the U.K. may find it very difficult to persuade those countries to enter into arrangements if they are based on an Act of the U.K. Parliament which is in breach of the ECHR (and other international treaties). When Prime Minister Sunak meets President Macron on 10 March , will the Government of France support the U.K. approach?
12) The U.K. Government is of course entitled to fight a losing battle in the courts so long as their arguments are not laughable. Much depends on the Government’s attitude to risk. But if the Government loses a case which its own legal advisers have said will probably be lost, the stakes are much higher.
13) The U.K. has a populist government which is content to lose legal challenges and then to blame the judges. The conclusions of the recent FIDE Congress on nationalism provide some relevant background on the attitude of populist governments to the judiciary.
C) The rule of law
14) The Government says that it believes in the rule of law. Depressingly, however, twice in the last few years it has been prepared expressly to breach its international obligations under the Northern Ireland Protocol ( part of the Brexit deal). As a result, the reputation of the U.K. among EU states has fallen.
15) The U.K. government was at the forefront of the post war work which resulted in adoption of the ECHR. But now the U.K. Government’s commitment to the rule of law looks increasingly threadbare.
Christopher Muttukumaru CB DL
Member of the International Academic Council of FIDE. Formerly General Counsel, U.K. Department for Transport and a Bencher of Gray’s Inn.