Safety of Rwanda (Asylum and Immigration) Bill

Debate between Baroness Chakrabarti and Baroness Hoey

Report stage
Monday 4th March 2024 Lords Chamber

[Baroness Hoey (Non-Afl)]

My Lords, I will briefly support Amendment 17 in the name of the noble Baroness, Lady Lawlor. I will say a few words about the Northern Ireland perspective on this, because whether this will really apply to Northern Ireland has been discussed at various stages, as have the effects if it does not.

A number of things in the Safeguarding the Union Command Paper have already been exposed as not correct. I would have liked more specific language in proposed new subsection (5)(c) in the amendment and more specific mention of Section 7A of the European Union (Withdrawal) Act when we talk about international law. The noble Lord, Lord Frost, is absolutely right: this will not go away and, sooner or later, we will have a legal challenge, probably first in Northern Ireland, on Section 7A and whether this applies.

Last week, we saw that the effect of the protocol framework is to give EU law supremacy in Northern Ireland, even to the point whereby the legacy Act that was passed—whether you agreed with it or not—could be struck down due to inconsistency with EU law applying because of the protocol. The Government and the Minister need to clarify because there is a lot of confusion and—I will put this gently—misleading information about how Article 2 works.

In a Written Answer to me on the Rwanda Bill, the noble Lord, Lord Caine, claimed that the EU Charter of Fundamental Rights did not apply to Northern Ireland via Article 2 of the protocol framework, and this is directly at variance with the High Court judgment in Angesom and the High Court in Northern Ireland disapplying 10 provisions of the legacy Act last week. The Government cannot keep making claims that are so obviously not true and then get almost angry when we point out things about how it is working legally.

This is another example of the degree to which control over part of the United Kingdom has been genuinely surrendered by this Government while they pretend that it is not happening. Let us not forget that the Windsor Framework is very specific: paragraph 46 of Safeguarding the Union says that

“the Windsor Framework applies only in respect of … trade”

and that Article 2 does not apply to immigration issues. I think we will find that this is not correct.

On the Rwanda Bill and the effect of Article 2 of the protocol framework, the proponents of the deal need to be clear. The Bill does not apply in the same way in Northern Ireland because Article 2 prevents it from doing so. The EU Charter of Fundamental Rights continues in Northern Ireland, and we should be honest about that. The protocol framework provision trumps domestic law and the wishes of our sovereign Parliament. Noble Lords should be aware that, whatever your views on this Rwanda Bill, we will find that this will ultimately end in another legal challenge. Whether the Bill has gone through or not, this will delay its implementation. I support the amendment, even if it does not specifically mention the Windsor Framework.

[Baroness Chakrabarti (Lab)]

My Lords, I will speak to Amendments 18, and Amendment 20 which I share with the noble Viscount, Lord Hailsham, the noble and learned Baroness, Lady Hale of Richmond, and the right reverend Prelate the Bishop of St Edmundsbury and Ipswich. I support the starred Amendment 21 in the name of the noble Lord, Lord German.

Amendments 20 and 21 both restore Human Rights Act protection in full for those subject to the Bill pending removal to Rwanda. The amendment of the noble Lord, Lord German, does this in even clearer language by not referring internally to last year’s immigration Bill but clearly stating for the lay reader that Human Rights Act protection is restored.

However, Amendment 18 is a revision of the amendment tabled in Committee by the noble Lord, Lord Kirkhope. It is a modest revision to address the concerns of some of his noble friends. He is not able to be here this evening. I begin with that one because it is so mild and in keeping with the thrust of the Bill, and it cannot be described as wrecking or disturbing the framework—even of a Bill I object to—in any way.

Noble Lords will know that, in Clause 3, most Human Rights Act protection is removed for these vulnerable people. The one thing that is left is the possibility of a declaration of incompatibility. Contrary, I fear, to some of the comments made by the noble Lord, Lord Clarke of Nottingham, and others, there is no possibility in our arrangements for the Supreme Court to strike down the Bill, were it to become an Act, because that is not the arrangement that we have in the elegant British constitutional compromise of the Human Rights Act and the balance it strikes between the rule of law, which is the bedrock of any democracy, and parliamentary sovereignty.

If an Act is declared incompatible, that declaration has merely moral and persuasive effect, and the Act continues in operation. That is why, with the greatest of respect to him, the noble Lord, Lord Clarke, was optimistic to the point of being wrong about that. What the noble Lord, Lord Kirkhope, came up with last time was just the suggestion that, if there were to be a declaration of incompatibility made by a higher court in relation to this legislation, there should be accelerated consideration in Parliament. That is it. I am flabbergasted by the Government’s response, that they would not even have a look at that most modest amendment from their noble friend—a former Immigration Minister, the noble Lord, Lord Kirkhope of Harrogate.

In the noble Lord’s absence, I have retabled the amendment, and it has been tweaked slightly to address some of the points made by his noble friends last time—and I really look forward to hearing what the objection is to that modest suggestion that he made, that, if is there is a declaration, Parliament should have an accelerated timetable, and Ministers should put their arguments to Parliament, not to a court, and Parliament should be given the opportunity to consider what to do next.

As for our amendments to restore Human Rights Act protection, that is another way of trying to restore the protection of the domestic courts. I say to the Government—and here the noble Lord, Lord Frost, has a point—that where they have left us with this Bill, if it passes unamended, is in a situation whereby the only court that will really be seized of these matters and have full jurisdiction over the safety of Rwanda and individual removals, from this country to that country, will be the European Court of Human Rights. Of course, interim measures will be ignorable by a Minister of State, but final orders of the European court will still be an international legal obligation, which is not removed by the Bill.

The noble Lord, Lord Frost, is the one who is telling the truth about the logic of where this Government are heading—really, for walking out of the European Court of Human Rights and walking out of the Council of Europe. We can follow Russia and be the next one out. At least the noble Lord is honest about that position, whereas the Government are trying to have it both ways. They have defenestrated domestic courts and gaslit the Supreme Court, but the only court that will be left for redress in any real terms will be the Strasbourg court. Then the Prime Minister can say, “I told you what I said about foreign courts”, because foreign courts will be all that is left, if that is what we now say about international courts. Goodness me, what terrible politics.

The noble Lord, Lord Frost, has had enough of international law, really—that is where he is coming from—but how on earth are we going to address in a unilateral way the pressing challenges of the 21st century, facing not just the United Kingdom but the world today, whether it is climate change, war and peace or the challenge of the ungoverned continent that is the internet, AI or robotics? It is just nonsense.

The noble Baroness, Lady Lawlor, does not seem to like law, whether it is domestic or international, I hope that she never has need of it and that she is never subject to the kind of abuse of power that sometimes people are subject to, and they need the protection of the courts.

Illegal Migration Bill

Debate between Baroness Chakrabarti and Baroness Hoey

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Baroness Hoey (Non-Afl)]

My Lords, I had not intended to speak on this provision, because when I read the Bill and saw it, I genuinely thought that it must have been a drafting error on the part of civil servants that Ministers had not noticed. Having listened to the noble Lord, Lord Davies, move his amendment, and to the other noble Lords who have spoken, it seems very sensible to me that this be taken back by the Government before Report. I am amazed that there was no consultation with the trade unions on this issue, which really does affect their members’ livelihoods. If this went through, I can imagine how workers on planes, ships and other forms of transport would react, knowing that it could be used against them.

It right that this Chamber address this issue, being an advisory, revising Chamber that gets things changed that we think are obviously wrong. In addition to what has already been said about consultation, why has this not been discussed properly? As the noble Lord, Lord Balfe, has said, many trade union members believe that the way we deal with illegal immigration has to change, but this is not the way to do it. This bit of the Bill must be taken out. The Minister should accept that there will not be support for it in this House, and that the other place has not, perhaps, thought about this in a sensible way.

[Baroness Chakrabarti (Lab)]

My Lords, I thank my noble friend Lord Davies of Brixton for tabling these amendments, which are supported by the trade union movement and by other noble Lords.

I will put my cards on the table: my personal position is that coercive powers of detention should be in the hands of the state, for a number of reasons. I think Ministers should be directly responsible for the use of coercive power in our democratic society, and those powers should be exercised by properly trained people who enter into a profession to exercise powers such as that. However, that is not everyone’s position. I know that reasonable people, including friends of mine with whom I disagree and some on the Benches opposite, believe, for example, in private prisons. Those are circumstances where there is a contract that a private provider enters into to provide services for detention, coercion and so on. I have problems with that; I will not bore the Committee with my various concerns about it, but I believe that there is an entire Wikipedia page devoted to G4S scandals. I am thinking also of Brook House detention centre and the various people who have died in the context of forced removal from the country. I have concerns about the use of private contractors to exercise some of the most coercive powers of the democratic state.

However, the problem that has been identified by my noble friend Lord Davies and others is even more serious than that, because these are not private guards who have been employed by AN Other private security company—although I am concerned about that, and the scandals speak for themselves—but people who are transport workers. They are used to giving service to the public, which is a very different job with a very different understanding, different training and, as the noble Lord, Lord Balfe, pointed out, different preoccupations and priorities from the use of coercive force.

On mixed flights, holidaymakers sit alongside deportees. To be fair, that is already a problem; under the regime that we have now, these problems have arisen for some time, but the Bill makes the problem worse. We also have to be realistic that, in the context of the challenges we will face on this planet in the years to come, more and more desperate people will come. The idea of having mixed flights, with transport workers now being responsible for a policy of transportation in addition to normal service provision with the priorities of customer safety, is a total nonsense. If the Government want to pursue the sorts of policy that we are seeing in this legislation, with controversy, coercion and desperate people who may want to fling themselves off the train, the ship or the plane, that is really not appropriate for transport workers. We are now getting into a transportation policy of coercive control and removal, and that really ought to be done by servants of the state, agents of the state, who have been employed for that purpose.

It is not just for the sake of their consciences or for the safety and security of the desperate people themselves—or indeed the terrible people. We keep calling them “illegal migrants” but that is a bone of contention, because of course these people are being removed without consideration of their asylum claims, so we do not know whether they are illegal or not. However, whether they are illegal or are genuine refugees, some of these people will be desperate and will resort to desperate means to escape removal, and the lovely people who I travel with on the trains, when I can, should not be charged with that task; it should be people who are genuine volunteers who have been properly trained, and they should be directly responsible to Ministers when things go wrong, which I am afraid they sometimes will. So the amendments are very well put and I urge the Government to think again.

The Minister will rightly say that this is not novel. I do not want to pretend that it is totally novel to give directions to conventional transport providers and to contract out aspects of immigration control; bit by bit, that has been happening for decades, and it has simply been turbocharged by this policy. However, it is not safe or ethical, and nothing good will come of it.

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Baroness Chakrabarti and Baroness Hoey

Report stage
Tuesday 13th April 2021 Lords Chamber

[Baroness Hoey (Non-Afl)]

My Lords, Amendment 18 stands in my name and that of the noble Lord, Lord Lexden. It is a simple amendment to Clause 15, seeking to put into legislation the promise made by the Government that the same protections in relation to prosecutions of veterans of overseas operations will apply to those who served in Northern Ireland—that is, to the 300,000 service personnel involved in Operation Banner from 1969. The amendment requires the Government to report on progress to that end before the necessary commencing regulations under subsection (2) are made. I hope that progress will come early rather than later, although I recognise that it will require courage within government—the same kind of courage as was displayed by the Parliamentary Under-Secretary, Johnny Mercer MP, who took this Bill through Committee in the other place.

On Second Reading, I explained that the Army and the police stopped a civil war breaking out in Northern Ireland, for which they get little thanks, just vexation, prosecutions and unending reinvestigations—largely due, ironically, to the overinterpretation of the right to life in Article 2 of the European Convention on Human Rights. They paid a colossal price in blood: some 700 soldiers, including in the UDR, and 300 RUC officers were murdered. The equivalent number of police officers killed on a UK-wide basis would be 10,000; that figure says it all.

In reality, the Bill is limited in its provisions. Reinvestigations will not be ended but I hope that they will be curtailed. It does not constitute an amnesty, although it is worth pointing out that, since the Belfast agreement, we have already had many elements of an amnesty, including the early release of all paramilitary prisoners and the letters of comfort for IRA members on the run.

Now the only matters investigated and coming to prosecution are those involving Army veterans, half a dozen of whom are awaiting trial in relation to events 50 years ago. That process has taken a very long time. Much of the investigation evidence appears to be based on files in the National Archives at Kew, where the Troubles archaeology proceeds apace. The IRA did not leave any paperwork to be excavated, of course.

The Bill before us carries in Clause 1 a permission for prosecutors to consider

“whether or not any proceedings against a person for a relevant offence should be continued”.

This is a key provision that must be extended to Northern Ireland and just might enable the persecution to cease. Our Amendment 18 is grouped with 17 others, all in the name of the noble Baroness, Lady Ritchie of Downpatrick, from whom we have just heard. Those 17 amendments are a pre-emptive strike against the extension of the Bill to Northern Ireland, which is what my amendment wants. It is being pushed hard by the legal academics at Queen’s University and the CAJ, who all seem to be more obsessed with persecuting veterans than real justice.

In the Member’s explanatory statement, the noble Baroness states that the Bill is incompatible

“with the provisions of the Belfast Agreement that require incorporation of the European Convention on Human Rights into Northern Irish law”.

However, in my view, she misinterprets the 1998 Belfast agreement. It said nothing about the prosecution or non-prosecution of members of the security forces. Yes, the UK Government undertook to incorporate the ECHR into British law; they duly did so in the November of that year when the Human Rights Act received Royal Assent. As the noble Baroness, Lady Goldie, said at Second Reading,

“nothing in the Bill could be interpreted as undermining the commitments contained in the Belfast agreement, and nothing that would diminish the essence of the protections that the Human Rights Act currently offers to the people of Northern Ireland.”—[Official Report, 9/3/21; col. 1585.]

The Government gave a promise. I strongly want to believe that promise but I am afraid that some of the things that have happened in Northern Ireland recently show even more that there is a need for this Government, and us in your Lordships’ House, to show that we mean what we say. That is why I very much hope that the Minister will be able to accept my amendment and put it into the Bill.

[Baroness Chakrabarti (Lab) [V]]

My Lords, I will speak briefly in support of the collection of amendments in the name of the noble Baroness, Lady Ritchie of Downpatrick. It does not take me to remind your Lordships that this is a very difficult moment in Northern Ireland and not one to be doing anything to undermine, or anything that could be interpreted as undermining, the Good Friday agreement.

I hear the endorsement from the noble Baroness, Lady Hoey, of the Government’s position: that the Bill must do nothing to jeopardise the ECHR and the agreement. With respect, however, that view is not shared by human rights analysts in the United Kingdom, in Northern Ireland and internationally. Of course, in this respect, even the perception of jeopardising the convention, and therefore the agreement, is a significant problem.

In the context of Northern Ireland, the problem stems from going down this road of de facto—or attempted—immunities and statutes of limitation in the first place. The amendment in the name of the noble Baroness, Lady Hoey, further demonstrates the difficulty with opening this Pandora’s box and going for limits on prosecution and on suits against the Government rather than bolstering the robustness and timeliness of investigations and providing adequate support for veterans and serving personnel.