.
On 20 July 2023, the Illegal Migration Act 2023 (IMA) received royal assent. Once fully in force, the Act will make it impossible for almost all refugees to seek asylum in the UK. Despite its massive risks for human rights, at every stage the government undermined parliament’s capacity to hold it accountable. This included the unsatisfactory timetable for the bill, the inadequate information given to parliamentarians during its passage (leaving major decisions to ministers through delegated powers), and even arrangements with Rwanda prior to the bill.
Scheduling
In the Commons, there were only a few days between the presentation and second reading of the Illegal Migration Bill, only 12 hours of debate at committee stage (which was on the floor of the house, so missed the opportunity to gather evidence), and 145 amendments tabled by government at late notice before report stage, some of them making significant changes. In the Lords, the government refused to schedule an appropriate time for the bill, meaning that proceedings ran into the night, on some occasions past 4 am. Lord Scriven said:
What we are trying to do is our job of sensibly and calmly dealing with a bill that has huge potential for the liberty and lives of some of the most vulnerable people in the world … we have to stay here until goodness knows what time to do our job because the government benches wish to rush this through at any cost …1Hansard HL Debates vol 830 col 1499, 7 June 2023. Lack of information
Important decisions left to delegated legislation
The IMA left many provisions – some of them particularly significant for those who will be affected by them – to be made by delegated legislation. At the end of September, the first tranche of powers to make these decisions were brought into force,
5Illegal Migration Act 2023 (Commencement No 1) Regulations 2023 SI No 989. See here for more detail. including the power to set the number of refugees who can come to the UK via safe routes, and the power to add countries to a list of ‘safe countries’ where citizens of those nations can be returned.
6‘Home secretary signs new Immigration Act provisions into effect: what do they mean?’, Public Law Project, 14 September 2023. These powers and others will be subject to very limited parliamentary scrutiny – the House of Commons last successfully blocked delegated legislation in 1978. This approach has given the executive huge control over life-changing decisions that should be subject to stronger parliamentary scrutiny.
Memoranda of understanding
The memorandum of understanding with Rwanda came into effect on the day it was signed and published, without any requirement or opportunity for parliamentary scrutiny. As Baroness Hayter of Kentish Town said:
[The arrangement] has significant consequences for individuals and their rights; it involves public expenditure; and it is a major new policy, with far-reaching implications … It is unacceptable that a government should use prerogative powers to agree important arrangements with serious human rights implications without scrutiny by parliament.8Hansard HL Debates vol 827 cols 1037–1038, 6 February 2023. Even if the courts block the Rwanda scheme,
9See Jed Pennington, ‘The Rwanda litigation: who is arguing what in the Supreme Court?’, Free Movement, 12 September 2023. the government may try to make similar agreements with other nations in the same manner; indeed, according to the press, it is in negotiations with at least five other African countries.
10Adam Forrest and Maanya Sachdeva, ‘Tories consider sending migrants 4,000 miles to Ascension Island if Rwanda plan fails’, Independent, 7 August 2023. Such an agreement could once again be set out in a memorandum of understanding, and the government could then add to the list of safe third countries to which asylum-seekers could be removed under the IMA by delegated legislation – little parliamentary involvement would be needed.
Conclusion
In pursuing its immigration plans, the government has shown disregard for the constitutional role of parliament. The courts – perhaps inevitably – must now shoulder the responsibility of checking the executive. The irony, of course, is that the courts themselves have been stripped of power to hold the executive to account and to safeguard rights under the IMA. This all begs the question: does this executive want to be held to account?