The Illegal Migration Bill published on 7^th March 2023 is one of the very few Bills in over 20 years to be laid before Parliament without a positive Statement of Compatibility under section 19(1)(a) of the Human Rights Act 1998. Instead of affirming that the Bill complies with rights, the Home Secretary, Suella Braverman, availed of the power under section 19(1)(b) HRA to state that she was unable to confirm compatibility with rights.  Nonetheless, the government wished to proceed with the Bill.

This feature of the Bill has given rise to questions in the media and elsewhere about whether the Illegal Migration Bill is itself illegal.  If the HRA sets out the fundamental rights and freedoms guaranteed under the law, then is the Illegal Migration Bill illegal by its own admission?  And given that the HRA gives domestic effect to rights contained in the European Convention on Human Rights – i.e. an international treaty which is legally binding on the United Kingdom – is the Bill in violation of international as well as domestic law?

The short answer to those question is ‘not necessarily’.  In this blogpost, I provide a slightly longer answer by examining the nature and functions of section 19 HRA.  Drawing on research carried out for my forthcoming book The Collaborative Constitution, I show that the key rationale of 19(1)(b) Statements was to raise a red flag for Parliament in order to catalyse increased parliamentary and public scrutiny of its potentially rights-infringing provisions.  Whilst section 19(1)(b) allowed the government to proceed with a Bill which seemed to violate rights, this was intended to be the exception rather than the rule.  Moreover, the very fact that Ministers are obliged to make a public statement about potential rights-violation imposes a discipline on Ministers which is designed to curb and constrain the temptation to violate rights. 

Section 19 HRA 1998

Section 19 was part of a package of provisions in the HRA which were designed to shore up the principle of parliamentary sovereignty, so that Parliament would remain free to ‘make or unmake any law’. Thus, whilst section 19 requires the Minister in charge of a Bill to make a public Statement about whether the Bill is compatible with rights, it does not require the Minister to confirm that it is in fact compatible.  Section 19(1)(b) allows a Minister to ‘make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill’. 

The heavily qualified wording of this provision suggests that this ‘nevertheless statement’ was intended to be the exception not the norm.  This is borne out by the legislative history.  As the Lord Chancellor, Lord Irvine, observed when proposing the Human Rights Bill to Parliament:

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 (Hansard, HL Official Report vol 582 col 1228, 3 November 1997).

The rationale of requiring a Minister to make a public statement about a Bill’s compatibility with rights was that it would incentivise the government: 

to ensure that its legislation would not infringe guaranteed freedoms, or be prepared to justify its decision openly and in the full glare of parliamentary and public opinion. Where the Minister states that he is unable to make a positive statement about the Bill’s compatibility, that will be a very early signal to Parliament that the possible human rights implications of the Bill will need and will receive very careful consideration (Hansard, HL Official Report vol 582 col 1228, 3 November 1997).

Therefore, whilst Ministers were not legally obliged to provide a positive Statement of Compatibility, they were politically expected to do so whenever possible.  As Lord Irvine put it, section 19 would force governments to ‘stand up and be counted’ for their stance on rights.  There is an interesting parallel here between section 19 HRA and the ‘principle of legality’ as articulated by Lord Hoffmann in Simms v Secretary of State for the Home Department.  In both scenarios, the political actors are nudged into complying with rights by being forced to come clean about their intention to encroach on them.  The requirement to ‘pay the political costs’ is designed to either deter governments from supporting rights-violating measures altogether, or alternatively, to prevent them from going as far as they would like in the rights-violating direction.

When section 19 HRA was enacted, many assumed it would be a ‘parrot provision’ – a tick-box exercise where the Government would simply claim compatibility with rights as a matter of course, without engaging in serious rights-scrutiny.  But that did not occur.  Following the enactment of the HRA, the Government bedded in rigorous processes of rights-review during the Bill formation stage.  Through an iterative interaction between departmental lawyers, policy leads, Parliamentary Counsel, civil servants, government legal advisers (including the Attorney General), the Joint Committee on Human Rights, and government Ministers, there is a sustained and substantial pre-legislative scrutiny of whether Bills are compliant with rights.  As Janet Hiebert and James Kelly show in their comprehensive empirical analysis of law-making under Parliamentary Bills of Rights, section 19 catalysed enhanced pre-legislative scrutiny for rights-compliance within the Executive branch. 

When preparing a Statement of Compatibility under section 19, the Government seeks to establish whether the Bill is ‘more likely than not’ to survive a potential legal challenge.  This is not a statutory requirement.  It is a test which has developed over time within the Executive.  Though it is sometimes described as the ‘51% test’, this is a rough guide rather than a precise algorithm.  Determining whether a particular provision is ‘more likely than not’ to pass muster in the courts will often involve a difficult risk-assessment, based on extrapolation from existing case-law and predictions about how the law might develop in future cases.  It will also include a prediction about how the ECtHR is likely to decide the issue, given that the domestic courts must mirror and replicate Strasbourg jurisprudence on Convention rights to a large extent (by virtue of section 2 HRA). 

Section 19(1)(b) and the Communications Bill 2002

During the lifespan of the HRA, a ‘nevertheless statement’ under section 19(1)(b) has only been issued on three occasions.  One was in relation to the Local Government Bill 2000 which sought to prevent local authorities from promoting the acceptability of gay relationships (the notorious section 28).  That provision was subsequently repealed three years later.  Another concerned the (subsequently abandoned) House of Lords Reform Bill in 2012, which sought to make provision for the franchise for House of Lords elections, but barred prisoners from voting.

But the most significant and politically salient instance of its use related to the Communications Bill 2002, which contained a ban on paid political advertising across all broadcast media.  Given that the ECtHR had recently decided that such a ‘blanket ban’ violated freedom of expression under Article 10 ECHR, it seemed more likely than not that the domestic and Strasbourg courts would declare the law to be incompatible with rights.  Therefore, the Government made a statement under section 19(1)(b) that it was unable to claim compatibility for the Communications Bill. However, it nonetheless believed that the ban was compatible with Article 10, because it was ‘necessary in a democratic society’.  When introducing the Bill to Parliament without providing a Statement of Compatibility, Tessa Jowell MP affirmed that the government had not taken this route lightly.  Making a section 19(1)(b) statement was an ‘obviously exceptional course’ only taken ‘after careful deliberation and full examination of both the legal arguments and the policy alternatives’.  

The Communications Bill was subjected to intensive pre-legislative and legislative scrutiny, including by the Joint Committee on the Draft Communications Bill and the Joint Committee on Human Rights (JCHR).  In an iterative engagement between the government and the JCHR, the JCHR ultimately accepted the Government’s claim that a partial ban on paid political advertising – i.e. a ‘less restrictive measure’ – was unworkable.  

In the end, both the UK House of Lords and the ECtHR in Strasbourg accepted that the blanket ban on paid political advertising contained in the Communications Act 2003 was compatible with Article 10 in litigation brought by Animal Defenders International.  In making their decisions, both the domestic and the Strasbourg courts gave weight to the sustained and substantial bona fide engagement with rights, both at the pre-legislative and legislative stages.  

For many commentators, this episode showcases the HRA’s emphasis on a shared responsibility for rights between the three branches of government, where each branch has a distinct but complementary role, whilst treating each other with comity and respect.  In my forthcoming book – The Collaborative Constitution – I present it as a case-study of collaborative constitutionalism in action.  

Though the government was unable to make a positive Statement of Compatibility under section 19(1)(a) in relation to the Communications Bill, it nonetheless had a plausible and principled argument that the Bill was compatible with rights – an argument which was ultimately persuasive in court.  It also clarified that proceeding without a positive Statement of Compatibility was an exceptional course of action which the government had not taken lightly.  Throughout the process, the government behaved in a way which evinced respect for rights and respect for the courts.  When introducing the Bill to the House of Commons, Tessa Jowell MP affirmed that if either the domestic or the Strasbourg courts found against the Bill, the government would nonetheless comply with that ruling.

Implications for the Illegal Migration Bill

So what are the implications for the Illegal Migration Bill?  First, the decision to proceed with the Illegal Migration Bill without being able to make a positive Statement of Compatibility under section 19(1)(a) does not mean that the Bill is itself illegal.  The HRA explicitly provides for this option in Section 19(1)(b) as a legally valid way of proposing legislation to Parliament.  

Second, although section 19(1)(b) is a legally valid option, this does not licence regular, routine or limitless reliance on this section in order to flagrantly violate rights whenever or however the government sees fit.  The ‘nevertheless statement’ under section 19(1)(b) was intended to be an exceptional rather than a routine occurrence, subject to stringent parliamentary and public scrutiny.  In the ECHR Memorandum accompanying the Illegal Migration Bill, the government seems to acknowledge this point, stating that 

The Government has concluded that radical solutions are required to put a stop to the small boats crossing the Channel and the approach adopted in these provisions is therefore new and ambitious [47] (emphasis added). 

The gist of the argument seems to be: desperate times, desperate measures.  

Third, when the government says that it is unable to make a Statement of Compatibility under section 19(1)(a), this does not necessarily mean that the Bill violates Convention rights.  Instead, it means that following legal advice, the Government has concluded that it is ‘more likely than not’ that the courts may find a rights-violation if the matter is subsequently litigated.  In circumstances where the law on the issue is unclear and the legal arguments are roughly 50-50, the government may decide that it is willing to take that chance.  That is what it has done on the Illegal Migration Bill.

Fourth, although Suella Braverman was ‘unable’ to make a positive Statement of Compatibility under section 19(1)(a), both she and Rishi Sunak maintain that the Bill is compatible with rights and that they are confident it will survive a challenge in the courts.  This has caused some confusion.  How can they say on the face of the Bill that it may be incompatible with rights, whilst simultaneously claiming in the ECHR Memorandum that it is in fact compatible? 

The answer is that a negative Statement under section 19(1)(b) embodies a conclusion that the courts are more likely than not to find a violation with rights, but that the government nevertheless wishes to proceed with the Bill.  It is not a firm statement that the proposed Bill violates rights, but rather than the government is unable to make a firm commitment about compatibility as judged by the courts.  By contrast, the statement in the ECHR Memorandum reflects the government’s own assessment about the Bill’s compatibility with rights – an assessment informed by their legal advice combined with a political belief that their policy goals are legitimate and necessary in a democratic society.  When Sunak and Braverman say they are ‘confident’ that the Bill will survive legal challenge, they mean that they believe they have a strong legal case which justifies a limitation on rights.  Whether this claimed confidence is partly a matter of political bravado remains to be seen.  Either way, when the Illegal Migration Bill is litigated – and it inevitably will be – the government’s main argument will be that they are pursuing a legitimate aim of the utmost priority, and that the appropriate means of achieving that aim lies squarely within executive and legislative expertise.  As such, they will be asking the courts to give them a huge dose of deference. 

Finally, one of the most unusual aspects of the Illegal Migration Bill is the fact that it disapplies the operation of section 3 HRA in section 1(5) of the Bill.  When section 3 HRA was enacted, it was intended to apply ‘to all primary and secondary legislation whenever enacted’.  It was not envisaged that subsequent governments could adopt a ‘pick and choose’ approach.  The disapplication of section 3 HRA to the terms of this Bill is unprecedented.  Its exclusion is doubly emphasised by the fact that section 1(3) of the Illegal Migration Bill echoes the language of section 3 HRA, but redirects its interpretive focus away from achieving rights-compatibility towards fulfilling the legislative purpose directed by Parliament.  Section 1(3) provides that

so far as it is possible to do so, provision made by or by virtue of this Act must be read and given effect so as to achieve the purpose [of the Bill, namely, to prevent and deter unlawful migration].

Instead of ‘scrapping’ the HRA altogether, here we see the government sidelining its application in the immigration context.  However, whilst the Bill closes off the interpretive avenue under section 3 HRA, it leaves in place the possibility of a declaration of incompatibility under section 4 HRA.  Given how many rights are engaged by this problematic Bill, a declaration of incompatibility is highly likely.  It is also likely – though not inevitable given the margin of appreciation doctrine – that an adverse ruling from the Strasbourg court will follow suit. 

On a cynical view, the government is being disingenuous with its claims of robust rights-compatibility.  Given the backlog of cases before the Strasbourg court, it will take about 5 years for that court to hand down a judgment against the United Kingdom.  By then, the policy will have been in place for a number of years and the rights of vulnerable people may already have been violated.  

Many thanks to Mike Gordon and Paul Scott for swift and incisive comments.

Aileen Kavanagh is Professor of Constitutional Governance at Trinity College Dublin and Director of TriCON – the Trinity Centre for Constitutional Governance.

(Suggested citation: A. Kavanagh, ‘Is the Illegal Migration Act itself illegal? The Meaning and Methods of Section 19 HRA’, U.K. Const. L. Blog (10th March 2023) (available at https://ukconstitutionallaw.org/))