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Lord Carlisle of Bucklow: My Lords, in a Bill of this nature, normally the department is good enough to supply explanatory notes. It would be helpful if an explanatory note on the effect of the clause could be provided in the mean time.
Lord Filkin: My Lords, that is a further good suggestion. We shall do that. It will enable us to amplify any points which are not covered by what I am now reading into the record. It may also pick up some of the other questions raised. I hope that that is acceptable.
Lord Renton of Mount Harry: My Lords, other noble colleagues may wish to ask further questions—that I well understand—but any approval of this clause should be suspended until Third Reading. There should be an explanatory note so that we can all
understand what the Government are intending to cover in the new clause, which is not at all clear at the moment. That would be a very satisfactory solution.
Lord Filkin: My Lords, that is what we shall do. Perhaps I may continue. It will, I am afraid, be tedious, but it is essential that I continue the exposition in order to have on the record the finality of it.
Subsection (3) has the effect of giving the clause retrospective effect. This means that an argument by persons who, in the light of the judgment of Mr Justice Crane, might seek to say that the restrictions which had been imposed on them under paragraph 21 of Schedule 2 or paragraph 2(5) of Schedule 3 to the Immigration Act 1971 were or had become invalid, would fail. Subsection (3) has the effect of validating the authorisation of temporary admission and restrictions imposed.
The reason for the retrospective effect of the clause is that it is simply not possible for the Immigration Service to identify all of those persons who, in the light of Mr Justice Crane's judgment, may not be subject to any valid restrictions, and to re-authorise temporary admission to such persons, and re-impose fresh restrictions on them on commencement of this clause on Royal Assent. The retrospective effect of the clause avoids the need for the immigration authorities to do this.
There may be some concern about the retrospective nature of this clause given that it is a criminal offence under Section 24(1)(e) of the Immigration Act 1971 to breach restrictions imposed under Schedules 2 or 3 to the 1971 Act without reasonable excuse. As the law stands at the moment in the light of Mr Justice Crane's judgment, and should Mr Justice Crane's judgment be upheld on appeal, there may well be people who can say that in the light of that interpretation of the power to authorise temporary admission and impose restrictions on them, the restrictions imposed on them had not been validly imposed and therefore they had no reason to comply with them whether or not they had a reasonable excuse.
As I have explained, the effect of subsection (3) of the clause will be to validate those restrictions. I have explained the reasons for needing to validate those restrictions, but I must make it very clear that it is the Government's intention that the retrospective effect of the provision will not operate so as to create any criminal liability under Section 24(1)(e) of the Immigration Act 1971 for breach of restrictions validated by it in respect of the period prior to its enactment. The intention is that subsection (3) would not operate so as to impose criminal liability on persons who had breached restrictions imposed on them under paragraph 21 of Schedule 2 or paragraph 2(5) of Schedule 3 to the 1971 Act before this clause comes into effect to the extent that the courts find that those restrictions, but for the retrospective effect of this clause, had not been validly imposed at the time when the restrictions were breached.
Criminal liability would, however, arise if a person whose restrictions had been validated by this clause failed to comply with such restrictions without a reasonable excuse after the clause comes into force.
And, of course, where restrictions have been validly imposed before this provision comes into force and no question as to their validity is raised as a result of Mr Justice Crane's judgment, or any future judgment on appeal of that decision, then a person may face prosecution now and after commencement of this provision, as before, if they have breached those restrictions without reasonable excuse. Nothing in this clause affects the position of such persons.
I am conscious of how highly technical this is. I repeat the assurance that I gave to the House: we do not intend to move the amendment. That will give the House an opportunity to consider the proposed new clause and its explanatory note. I hope that that will expedite business, both today and at Third Reading.
Lord Mayhew of Twysden: My Lords, I am afraid that I shall not be as kind about this proposed new clause as my noble friend Lord Renton of Mount Harry.
I wish to begin my short contribution by a word of kindness, or at least consideration, towards the parliamentary draftsman. It is unduly harsh to refer to this as lazy draftmanship. When I had some responsibility for the parliamentary draftsmen, the very last quality I would associate with any one of them was that of laziness. The fault with this clause—and it is an enormous fault—lies not with the draftsman, whom I am sure was told to construct a scattergun or blunderbuss clause—which is exactly what has been constructed—but with those who gave the instructions.
The new clause deals with the power of the state to detain people—that is to say, to deprive them of their liberty. As we all know, in the context of immigration law, this power has been dealt with by successive immigration Acts. Those Acts have imposed, very properly, at the instance of Parliament, strict limitations on the powers they confer to detain, to deprive people of their liberty. In the new clause, those provisions apply to people "who are liable to detention". Very properly, those powers are limited. In other words, it is only in very carefully defined and strictly limited circumstances that a person may be liable to have his liberty curtailed. That is absolutely right and four-square with our traditions in this country.
Now, as we have heard from the Minister—for whom I feel I must express deep sympathy at being handed such a brief—the Government are faced with the judgment of which we have heard. He will forgive me if I do not follow him in the technical explanation that he has given, which extended over four or five closely typed pages. The Government have responded to the judgment about which we have been informed by blandly referring to obligations, entered into freely by this country, in international law as an impediment to the removal of a person.
It is an impediment indeed. I have always understood that this Government took great credit for upholding international law, but in recognising that there are circumstances where international law imposes an impediment on removal, they recognise, as I understand it, that the person concerned can no longer be regarded as liable to detention. So what do the Government do? They introduce, by a blunderbuss clause, provisions which make people who are no longer liable to detention, liable to detention. That is the effect of the clause. It is intended to be the effect of the clause.
Whether or not it is intended to have that effect, that is the effect that it has. I respectfully suggest that when the Minister began his explanation, he was not justified in saying that the clause does not authorise detention. It does. It authorises detention where continued detention has been found to be unlawful by reason of an impediment imposed by international law.
And it does so by the use of language which should find no place whatever in our statute book, at least in the context of deprivation of liberty—that is, the extraordinary provision that,
- "This section shall be treated as always having had effect".
Perhaps the Minister will take instructions as to whether such a provision has ever found place in the statute book, certainly in connection with the deprivation of liberty. I regard it as almost literally breathtaking.
We now find the Minister saying that, although punitive penal provisions in the legislation would technically be engaged, it is not the Government's intention that the new clause should operate to impose criminal sanctions. But that is exactly what the new clause does. One could continue to an extent that would weary the heavens, let alone this House, about the iniquities of this new clause. It really must not happen.
Yesterday, much concern was expressed and we heard reassurances from the Government that children, for example, would not remain in detention for long, and therefore the concerns expressed by the right reverend Prelate the Bishop of Portsmouth would not be met with in fact. Now, apparently, they are to be capable of being detained for an indefinite period, even though the Government say that that is not the intention.
Retrospective legislation is anathema to the rule of law. If there are specific cases which the Government feel must be dealt with, that must be done by specifically targeted legislation and not by this iniquitous blunderbuss.
6.30 p.m.
Baroness Carnegy of Lour: My Lords, to my simple mind, not understanding all the issues involved, it seems to me that what the Government are trying to do is to frustrate the immediate effect of a recent court
decision, and to do it by retrospective legislation. Am I correct; and if so, do the Government really think that that is the correct thing to do?
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