Safety of Rwanda (Asylum and Immigration) Bill

Lord Alton of Liverpool Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

[Lord Jackson of Peterborough (Con)]

However much the noble Baroness heckles from a sedentary position, I will not sit down and I will finish my speech. Rule 39 interim measures, as we learned in Committee, were not in any meaningful sense court rulings per se and, more specifically, great British statesmen and jurists such as David Maxwell Fyfe, who has been quoted, and Winston Churchill never signed up to the court taking powers upon itself to make binding injunctions. This is at the very heart of these amendments. Indeed, it was debated and specifically rejected in terms. It is only since 2005, when activist judges were acting in the case of Mamatkulov and Askarov v Turkey, that the court has given itself a power ultra vires to the original convention—an important point enunciated previously by, among others, the noble Lord, Lord Faulks, the noble and learned Lord, Lord Woolf, and my noble friend Lord Sandhurst.

The clause that amendments today seek to strike down, eviscerate and render otiose is not an example of arbitrary power but a specific power for this Bill and a set of unprecedented geopolitical and economic circumstances: mass migration. It is not a blanket disregard but a specific power. In summary, Rule 39 rules were never part of the European convention or constitution and there is no evidence, other than the hyperbole in this Chamber, that the UK not being bound by these interim measures undermines our overall compliance with international law and our international obligations, responsibilities or undertakings. The irony of these amendments is that they lock in the UK to adherence to a regime that even the court itself accepts is suboptimal and needs urgent reform. These amendments offer a carte blanche to a broken system.

The court itself does not work in its efficacy and the power to produce a desired result, with 48% of leading judgments being unaltered and not acted upon in the past 10 years across all 46 members of the convention. We have a failing, politicised, secret and unreformed court that some noble Lords wish to legislate to usurp the sovereignty of our Parliament. For these and other reasons, I ask your Lordships to resist these amendments because they are not only consequential but dangerous.

[Lord Alton of Liverpool (CB)]

My Lords, I will be brief. I follow my noble and learned friend Lord Hope of Craighead and the noble Baroness, Lady Chakrabarti, in supporting these amendments. I simply say to the noble Lord, Lord Jackson, that yesterday was the 78th anniversary of Winston Churchill’s famous speech in Missouri; it was entitled Sinews of Peace and it dealt with issues such as the Iron Curtain coming down across the Europe, and why Winston Churchill believed we needed a convention on human rights and supported the creation of the Council of Europe as the best buttress—alliances based on the rule of law—to preserve the peace of Europe and the world.

In the troubled times in which we live—the noble Baroness, Lady Chakrabarti, referred to the debate on these things in your Lordships’ House yesterday—the upholding of the rule of law, especially in the face of all that Putin’s Russia is doing in Ukraine, is paramount—

[Lord Jackson of Peterborough (Con)]

The noble Lord has a proud and long-standing record of defending human and civil rights, which we all support and congratulate him on. However, does he not agree that a system in which you have an unnamed foreign judge in an international court imposing a late-night judgment, and which allows the UK no opportunity to give its own evidence or respond, or understand the evidence against it, is surely not an example of due process or, more importantly, the rule of law?

[Lord Alton of Liverpool (CB)]

I disagree with the noble Lord; the amendments are about interim measures. The Joint Select Committee on Human Rights, on which I serve, took evidence on this issue and I want to refer to that for a moment. Having heard the evidence, these were the conclusions of a committee of the sovereign British Parliament. In paragraph 105, we said:

“We recognise that there are differences of opinion over whether or not interim measures ought to be binding on the United Kingdom. However, as a matter of international law, they are binding. Failing to comply with interim measures directed at the UK would amount to a violation of the European Convention on Human Rights”.


On Clause 5, we said that the Bill

“contemplates a Minister choosing not to comply with an interim measure and thus violating the UK’s international human rights obligations. It also prevents the domestic courts taking into account what may be a relevant factor for any decision whether or not an individual should be removed to Rwanda. This is not consistent with a commitment to complying with the UK’s obligations under the ECHR”.

That was the committee’s considered, majority view; it is not a view that has been responded to by the Government. Here I ask the noble and learned Lord, Lord Stewart, or the noble Lord, Lord Sharpe of Epsom, when they come to reply, to go back to the Committee stage of this Bill, where they gave an assurance that, before we went any further, Parliament would be told the response to the findings of the Joint Committee on Human Rights. As recently as Monday, I was told when I intervened on this point that there would be a response for today; I would like to know when it is going to be forthcoming.

It brings our Parliament into disrepute when we set up Joint Committees and say we will consider issues of this kind in great detail, and when reports have been made available to the Government, but no response has been forthcoming before detailed consideration of that legislation. Here we are, at the Report stage of a Bill that has gone all the way through the House of Commons, has almost completed its passage in your Lordships’ House, and we still have no proper response. When the noble Lord, Lord Coaker, defended, as he did earlier, the integrity and the nature of our Select Committee, I was with him, and not just because, like him, I have particular admiration for the chairs of Select Committees. The honourable Joanna Cherry is no exception in this respect. She is an admirable chair of that committee; she is not a partisan—ask members of the Scottish National Party and they will tell you that she is a very independent-minded lady who has considerable experience as a KC in the law, so chairs are not to be dismissed. These committees of your Lordships’ House should be taken far more seriously. Not to do so is a discourtesy to Parliament and to the kind of arguments that my noble and learned friend has put forward, and it is why, even if these amendments are not voted on today, the principles that underline them should be supported.

[Lord Faulks (Non-Afl)]

My Lords, I promise I will be brief. First, there appears to be agreement that there was not total agreement on the position of international law. Noble Lords will remember the speech of the noble and learned Lord, Lord Hoffman, referring to the article in Policy Exchange. This is not the time to repeat the arguments, one way or another.

It was also agreed that the procedure adopted by the European Court of Human Rights was sub-optimal and there is room for improvement. Improvement may come along the line in due course; we wait to see, and there are some hopeful signs. However, the current position is that it is not a satisfactory procedure.

We then come down to the power. It is important to stress that the Minister has a power, not a duty, which he or she can exercise to ignore the ruling. The Minister does not have to ignore the ruling, and no doubt they will look carefully at the reasons given. Amendment 37 suggests that the Minister will consult the Attorney-General, who I am glad to see sitting in her place beneath the Throne today. I imagine that in a normal course of events, a Minister taking a decision of that gravity would consult the Attorney-General. However, the fact that there is a slender basis for the jurisdiction, that the interim procedure is unsatisfactory, and that there is a power, seem to me to hedge around this provision with appropriate safeguards.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

Oh, she is. Well, while she did not press the point again, there was none the less a Green-wedge approach, which included my noble friend Lord Deben, attacking the stance of the Opposition Front Bench. Noble Lords opposite are old enough and ugly enough to defend themselves, and the noble Lord, Lord Ponsonby, did so. On the aspects of my noble friend’s submission that attacked the Government, I say to him that his point is misguided. Of course, the French Government are not the European Union; they are acting in this context as a sovereign country and not as a member of the EU.

As I said, “serious and irreversible harm” is broadly the same test that the Supreme Court applies. The noble and learned Lord, Lord Hope of Craighead, went on to raise a matter in relation to the Constitutional Reform Act. This Bill takes the same approach adopted in Section 55 of the Illegal Migration Act; the Constitutional Reform Act is not referenced in the Illegal Migration Act. Under both provisions, it is for a Minister of the Crown alone, and not a court, to decide whether to comply with an interim measure. That reflects the orthodox position that international obligations act on the Government, rather than having effect on the domestic plane. It does not constitute an attack on judicial independence. There is no implied reform of Section 3 of the 2005 Act, which makes provision for the upholding of judicial independence. This provision remains intact and it is not necessary for legislation that does not bind judicial decision-making to spell that out. The judiciary’s independence is a fundamental principle of our constitution, as I think all noble Lords across the House will agree. The Government are committed to enabling judicial decisions to be made independently and impartially, whether domestically or in relevant international courts and tribunals.

I apologise to the noble Lord, Lord Anderson of Ipswich, and gratefully acknowledge his courtesy in approaching me to chase up the correspondence to which he referred the House. I apologise that the Home Office carrier pigeon failed to reach Ipswich before today. I have a copy of the letter that he sought and, with his leave, and that of the House, I will read the relevant provision.

[Lord Alton of Liverpool (CB)]

My Lords, before the Minister leaves that point about carrier pigeons, can he say when the response from the Government to the Joint Committee’s report on this Bill will be forthcoming, given that on Monday we were told that it would be here for the proceedings today?

[Lord Stewart of Dirleton (Con)]

My Lords, the answer to the noble Lord’s question is “imminently”.

Returning to the correspondence with the noble Lord, Lord Anderson, I quote from that letter that bears my signature and which I trust that he will see in due course. He asked whether the Government agree that if, in compliance with Clause 5, a Minister decides not to comply with an interim measure, that would place the United Kingdom in breach of its international obligations. Clause 5 provides that it is for a Minister only to decide whether the United Kingdom will comply with an interim measure indicated by the European Court of Human Rights in proceedings relating to the intended removal of a person to the Republic of Rwanda under, or purportedly under, a provision of or made under the Immigration Acts. The Bill is in line with international law. The Government take their international obligations, including under the ECHR, very seriously, and there is nothing in the clause that requires the United Kingdom to breach its international obligations. In any event, it is not correct that a failure to comply with interim measures automatically involves a breach of international law. There are circumstances where non-compliance with an interim measure is not in breach of international law. There follows a list of further addressees whom I hope will receive the letter presently.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, I feel a bit of an impostor with this set of amendments, because I think your Lordships might find it a bit down to earth to deal with some facts. I have been very interested in my approach as a pupil barrister, trying to overcome and understand everything that was going on—I have done my best. I apologise to everyone because my Amendments 40 and 41 are trying to get some facts from the Government about how the Rwanda treaty will operate or not. In Committee the Minister failed to give us many of the various statistics, so I wonder whether we are now in a position where we can get some of the facts around this. The deliberations we have had have been so important for months during which, it seems to me, the Government have become obsessed with Rwanda. Clearly, with respect to various comments that have been made and the point made by the noble and learned Lord, Lord Hope, we will have to see, once the Commons has considered the Bill, what we may wish to consider again in your Lordships’ House.

I point out that in yesterday’s Daily Telegraph, the Home Secretary wrote that he would consider amendments from your Lordships’ House, so I thank the noble and learned Lord, Lord Stewart, and the noble Lord, Lord Sharpe, because they got a massive concession from the Home Secretary. As the noble Lord, Lord Deben, pointed out, that is not really sufficient but it is a change from when the Home Secretary was making a blanket statement that under no circumstances would he consider anything that your Lordships were considering. At least we have gone from a blanket refusal to consider anything to a statement in the Daily Telegraph—I presume it was well sourced since it was a quote; that is not always the case but often is—that the Home Secretary would consider it.

The noble Lord, Lord Deben, said that this is not about killing the Bill and, although we may disagree over the extent to which we push this, I think the constitutional proprieties of this place needs restating again. As much as we accept that, as His Majesty’s Opposition, we will not block the Bill, the constitutional quid pro quo is that the Government in the House of Commons, through their elected mandate, accept that we have a right to demand that they think again and revise legislation in view of what is said here. We are not just a talking shop or a Chamber that says what we think for the fun of it: we make serious points about serious legislation that impacts on millions of people in this country and hundreds of millions across the word. A Government should respect that and listen to what has been said, even if, in the end, they reject much of it.

Every Government I have ever been part of or known, whether Conservative, Labour or coalition, have always considered what the House of Lords has said. At times they have said that although we cannot agree with that particular amendment, we will come forward with one of our own that seeks to at least address some of the problems that the Opposition and others have brought forward. That is no doubt the frustration that the noble Baroness, Lady Jones, was articulating to me, and what the noble Lord, Lord Deben, was doing in quite rightly challenging me. We are seeking to challenge the Government to respect the constitutional position of this House. They play with the constitution at their peril; without a written constitution, those unwritten rules and conventions are crucial. I am sorry to spend a couple of minutes repeating that argument from the Dispatch Box—I hope the Prime Minister and others will hear it—but it is of fundamental importance. Without that, people ask what the point is and say that maybe we should take things further than we should.

[Lord Alton of Liverpool (CB)]

Before the noble Lord leaves that point, will he also underline, yet again, the importance, within our constitutional proprieties and parliamentary process, of the place of Select Committees? Neither the Constitution Committee nor the Joint Committee on Human Rights has had a response on this Bill. How on earth can we consider legislation to any serious degree if, when committees established by Parliament look in detail at legislation, the Government then rush the legislation through pell-mell without any consideration to what those committees have found?

[Lord Coaker (Lab)]

The noble Lord, Lord Alton, makes the point for himself, and I absolutely support what he has just said.