How the Illegal Migration Bill threatens our core constitutional principles – joint briefing to the Lords

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The Illegal Migration Bill is an extremely damaging Bill which presents significant problems to the constitution.

As the Bill passes through committee stage we urge the House of Lords to ensure the constitution is protected, in this joint briefing with the Bonavero Institute of Human Rights, Amnesty International, Liberty, and the Immigration Law Practitioners’ Association (ILPA).

In particular, we are concerned by the constitutional threat posed to the following five areas:

1. Undermining Parliamentary Sovereignty

The Government rushed the Illegal Migration Bill through the House of Commons in a manner which undermined Parliament’s sovereign role, which requires that it is able to conduct meaningful scrutiny on legislation proposed by the UK Government.

The Bill itself grants the Government expansive powers to make important – and for the people concerned, often life-changing – decisions through secondary legislation.

2. Undermining the Rule of Law

The Bill’s numerous Ouster Clauses, the retrospective nature of the Bill, and its likely repeated breaches of International Human Rights Law undermine the Rule of Law in the UK and on the international stage.

Compliance with international legal obligations is a fundamental requirement of any state seeking to uphold the Rule of Law. Yet, the powers in the Illegal Migration Bill will breach many of the UK’s obligations under international law, including those deriving from the Refugee Convention, the European Convention on Human Rights (ECHR), Convention on Action against Trafficking in Human Beings (ECAT), the United Nations Convention on the Rights of the Child (CRC), and more.

3. Weakening the protection of human rights

The Illegal Migration Bill narrows the scope of domestic human rights protections so as to remove such protections entirely in some cases, and puts the UK further in breach of its obligations under the ECHR.

Clause 1(5) of the Bill disapplies Section 3 of the Human Rights Act 1998 to any provision made by the Act or any subordinate legislation made under it. The purpose of Section 3 was to secure Parliament’s intention in passing the Human Rights Act, that legislation be interpreted and applied in ways that accord with the UK’s international obligations under the European Convention.

Suspending a key element of the country’s domestic human rights protection system is an attack on the basic principle of equality before the law and the universality of human rights.

4. Undermining the devolution settlement in the UK

The Illegal Migration Bill risks undermining the constitutional distributions of power in the UK as established by the UK’s devolution arrangements.

The Bill prevents the devolved governments from complying with international human rights obligations and with duties imposed on them by the devolution settlements, which has a fundamental constitutional impact.

5. Undermining the separation of powers

The cumulative effect of the changes proposed by the Bill are likely to put significant strain on the Separation of Powers, both due to the substance of the Bill and the way the UK Government is attempting to pass it.

While UK democracy depends on there being a clear Separation of Powers, the Illegal Migration Bill represents an attempt at a power shift which enables the UK Government to play the roles of all three branches of state – as lawmaker, adjudicator and administrator. In undermining the Separation of Powers in this way, both the UK’s constitution and democracy are diminished.

Read the full briefing

Read the executive summary