Safety of Rwanda (Asylum and Immigration) Bill

Lord Anderson of Ipswich Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

[Baroness Meyer (Con)]

My Lords, I am the last person to speak who was also in Rwanda last week and attended the same meetings. Like the noble Lord, Lord Murray, what I heard was that it may not be exactly like in some countries but, within Africa, and compared to everything, the witnesses said that they were protected because of the constitution, that gay men could walk in the street holding hands and were not abused, and that Rwanda is a safe enough country to send people. I do not see where this obsession comes from that Rwanda is unsafe, and I suggest, as I said last time, that a lot of people who have preconceived views should go to Rwanda and check for themselves.

[Lord Anderson of Ipswich (CB)]

My Lords, do these exchanges not suggest that many of us are liable to hear what we hope we will hear and that there is good sense therefore, instead of leaving these difficult decisions to the judgment of Parliament, to leave them to the people who are better equipped to make them at the end of the day—including, on an interim basis, as the noble Baroness’s amendment wishes—the courts?

[Lord Coaker (Lab)]

I hesitate to stand up, looking around. We very much support Amendment 33 from the noble Baroness, Lady Chakrabarti. If she wishes to test the opinion of the House, we will certainly support her.

I just say to the noble Lord, Lord Murray, in defence of the Select Committee system, that sometimes there are differences of opinion on Select Committees. However, it is a really important point of principle about Parliament that reports from Select Committees, both in this and the other place, are hugely respected, even when there is a division of opinion. We need to be careful about suggesting that a chair of a Select Committee has come to an opinion because of their party-political allegiance. That is a difficult point to make. In my experience, chairs of Select Committees of all political parties have sometimes made very difficult decisions and come to very different conclusions from those of the party of which they are a member. That important point of principle underpins our democracy, and we need to be careful about suggesting that the chair of a Select Committee has been openly influenced by party-political allegiance to come to a particular conclusion. Going down that route is dangerous.

The point about this, as my noble friend Lady Chakrabarti outlined, is to try to give immigration decision-makers the opportunity to see whether a particular decision is able to be challenged in the courts and whether an individual’s rights need to be protected. My view is that this is of course about the rule of law, but the courts are there to ensure that justice is done. Justice in this case requires the ability for the law, as it impacts an individual, to be tested in the courts. That strikes me as fundamental to how the rule of law operates.

As the noble Viscount, Lord Hailsham, said, sometimes that is really inconvenient to Governments. Sometimes it is really convenient to all of us. Justice is an important part of our democracy and goes alongside the rule of law. I just say to my noble friend Lady Chakrabarti that I think that is what her Amendment 33, supported by others, seeks to do and why we would support it.

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[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.

[Lord Anderson of Ipswich (CB)]

My Lords, I support all the amendments in this group and will be sorry if, as I suspect may be the case, none of them is put to the vote.

I spoke in Committee on the status of interim measures of the European Court in international law. I will not repeat any of that now, although I remind the Minister, as I did informally a moment ago, of the exchange we had at the end of that debate, at about 10.30 pm on 19 February. I asked him whether he agreed with me that if a Minister decided not to comply with an interim measure, as Clause 5 permits, this would place the United Kingdom in breach of its international obligations. He gave me no answer—and frankly accepted that he was giving me no answer—but did undertake to write to me. The Minister did tell me a moment ago that such a letter has been sent, but I am afraid that, despite his best efforts, it has not yet reached me. Will he please be kind enough to read the relevant passage when he answers this debate?

The European Court of Human Rights takes one view, which is generally accepted to be binding on contracting states—including our own—by Article 32 of the ECHR. In brief reference to the point raised by the noble Lord, Lord Lilley—I thank him for the courtesy he extended to me earlier in today’s debates—the binding effect of interim measures rulings was clearly accepted in this case by the French Conseil d’Etat, in its judgment of 7 December 2023. I know the noble Lord is very conversant with the French language; if he reads paragraph 5 of that judgment, he will be left in no doubt as to the relevant position.

If, as the noble Lord, Lord Jackson, suggested, the French Government are flouting both the interim measures of the European Court of Human Rights and the judgment of their own highest court, shame on the French Government. Shame on any Government who behave like this. We are used to seeing the Russian Government, the former Government in Poland, behave like this, and we have to make up our mind which camp we are in. That is why it is so important that we understand what the Government’s position is before we vote on the Bill. Is the purpose of Article 5 to permit Ministers to involve this country in breaches of international law, or is it not? I hope that this time, we will have some clarity from the Front Bench.

[Lord Deben (Con)]

My Lords, as the House will know, I tend not to want lawyers to have it all their own way when they are dealing with legal issues, but I rise because it seems to me that this is an occasion to point to the fundamental problem the Bill presents. It asks Britain, which is absolutely dependent on international law, as we found in our debate yesterday, to present a situation which, at its very best, looks like flouting international law. The previous speech, by my fellow Ipswichian, is germane to this. I want to bring it back to this key issue. Those who objected to the European Union and our membership really cannot come to this House and say, “Because the French are doing it, we ought to copy them”. That seems to me to be a very curious position.

This brings us to a very crucial issue about this House. Earlier on, the noble Lord, Lord Coaker, rightly said that the Government have addressed the world to say that whatever we say, they have no intention of changing the Bill. That is unacceptable. It is an insult to the House, and it is constitutionally improper.

However, I say to the noble Lord, Lord Coaker, that the Opposition also have a responsibility in this. We all know that, so far, the Opposition are not prepared to pick one of these amendments, which are about our acceptance of international law, and to press it to the point at which the Government have to give way or lose the Bill. I say to the Opposition that the responsibility of opposition is as great as the responsibility of government. In the hands of the Opposition is the ability to make this Government turn the Bill into one that conforms with international law. If they do not do that, they will have failed in their duty and in the way they treat this House.

As the Opposition may become the Government, this, in my view, undermines their position, because the world knows why they do not want to do it: for electoral reasons. I find that unacceptable in the party I support; I find it just as unacceptable in the party with which I disagree.

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[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.

[Lord Anderson of Ipswich (CB)]

I am very grateful to the Minister. I recall that, of the Grand Chamber in Mamatkulov, 13 of the 14 judges in the majority thought that there were no circumstances in which a failure to comply with interim measures could be in accordance with international law. The 14th expressed the view that the Minister has just expressed. Can the Minister indicate in what cases it is lawful under international law not to comply with interim measures issued by the court?

[Lord Stewart of Dirleton (Con)]

It would be in circumstances where compliance is not possible.

Turning to Amendment 37 in the name of the noble Lord, Lord Coaker—

[Lord Stewart of Dirleton (Con)]

My Lords, I now turn to Amendment 37 in the name of the noble Lord, Lord Coaker.

[Lord Anderson of Ipswich (CB)]

My Lords, I do not wish to prolong things, but so we can be completely clear, is the Minister accepting that in circumstances where the Strasbourg court has made an order and it is possible for the United Kingdom to comply with that order, then the United Kingdom will be in breach of its obligations if the Minister decides not to comply with it? That is what I take from what he has just said.

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[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to noble Lords from all sides of the House, whatever their views may have been, for contributing to this debate. The result has been a much more interesting discussion than I anticipated in my rather brief and somewhat lame introduction to my amendment.

I shall make only one point. My amendment is concerned with the position of our own courts. As Clause 5(3) stands, it prohibits our courts from having any regard to an interim measure when considering an application which relates to a decision to remove someone to Rwanda. The noble Lord, Lord Faulks, is quite right when he says that the current procedures under Rule 39 are suboptimal. There are various defects which we would not accept in our courts, but that does not apply to our procedures. They are perfectly open, proper and thorough. Our judges would be able to take on board all the points that have been made in the course of the discussion and weigh up one way or another whether this measure from the European Court of Human Rights should be given effect to. I am not asking that they should be bound to give effect to it but that they should be permitted to do so. It seems to be a perfectly reasonable thing to ask our courts to do.

I have considered whether I should press this to a vote, but we have to ration ourselves at this stage of our proceedings and have regard to what happens next. If this goes down to the House of Commons, no doubt it will bounce back again and so on. We have to be careful how far we press things to a Division; I would have liked to do so, but at some points one has to exercise self-restraint, which I am doing.

[Lord Anderson of Ipswich (CB)]

Does the noble and learned Lord take comfort, as I do, and perhaps some people watching these proceedings might do, by recalling that on Monday we agreed to an amendment that requires this Bill—this Act, as it will become—to comply with international law when it is implemented?

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[Baroness Lister of Burtersett (Lab)]

My Lords, I will say a couple of things about Northern Ireland, following the noble Lord, Lord Dodds of Duncairn, although I suspect from a very different perspective. First, as I pointed out in Committee, the Joint Committee on Human Rights asked for a full explanation before Report. We are almost at the end of Report and, as far as I am aware, despite all the talk of imminence, we still do not have the Government’s response to the JCHR’s report. I very much support what the noble Lord, Lord Alton, said about that earlier—it really is not good enough.

I turn to the disapplication of human rights and the implications for the Good Friday agreement and the Windsor Framework. I know I will not change the Government’s mind on this, but I say this partly to amplify what was said earlier and put this on the record. The cases that the noble Lord referred to have been brought to my attention. In their revised fact sheet—and in almost identical words in a letter to me—the Government said that

“the bill does not engage the Belfast (Good Friday) Agreement, including the rights chapter - those rights seek to address longstanding and specific issues relating to Northern Ireland’s past and do not extend to matters engaged by the bill”.

But the cases to which the noble Lord referred made something absolutely clear. The 28 February decision in the 2024 case of Dillon and others—NIKB 11 —referenced the overarching commitment to civil rights in the relevant chapter of the Belfast Good/Friday agreement. It said in paragraph 554:

“A narrow interpretation of ‘civil rights’ undermines the forward-facing dimension of the non-diminution commitment in article 2(1)”.


It says it is “future-facing”; it is made clear that it is not looking just to the past.

Similarly, in Angesom, which was also referred to by the noble Lord, the decision said:

“The court rejects the submission by the respondent that the rights protected by the relevant part of the GFA are frozen in time and limited to the political context of 1998. The GFA was drafted with the protection of EU fundamental human rights in mind and was therefore intended to protect the human rights of ‘everyone in the community’ even ‘outside the background of the communal conflict’”.


So I do not think that what the Government have come up with so far is good enough in explaining why they believe that the disapplication of the Human Rights Act does not apply and will not affect the Good Friday agreement and the Windsor Framework.

[Lord Anderson of Ipswich (CB)]

My Lords, I echo the importance of the issue that the noble Lord, Lord Dodds, has raised in his Amendment 44ZA. That issue, in a nutshell, is that relevant provisions of EU law apply in Northern Ireland and may, under the Northern Ireland protocol and Windsor Framework, result in the judicial disapplication of incompatible legislation.

The Northern Ireland Human Rights Commission, which of course is the statutory body appointed to look at these things, reported that Clauses 1 and 2 of this Bill are contrary to Article 2 of the Northern Ireland protocol. I asked the Minister in Committee whether the Government agreed with that, and he wrote to me on Monday as he had promised. The letter expressed the Government’s disagreement with the NIHRC, though without engaging with the detailed provisions that it had identified relating to asylum seekers as problematic for the application of the Bill in Northern Ireland. I respectfully question whether that conclusion is correct, given statements already made by the High Court of Northern Ireland in the various cases referred to by the noble Lord and the noble Baroness, Lady Lister.

I understand that the final judgment in the Northern Irish challenge to the Illegal Migration Act 2023, to which the noble Lord, Lord Dodds, referred—I think that he referred to the commission decision—is expected in the next 10 days or so, perhaps even in time for what we must assume will be ping-pong. I do not support the noble Lord, Lord Dodds, in his amendment, which asks us to disapply the EU withdrawal Act, but let me make a different suggestion. As the Government apply themselves to the judgments of the Northern Ireland courts, which have been referred to, I hope that they will reflect that, by accepting some of the amendments that your Lordships have already made to this Bill, they can protect it from successful judicial challenge in Northern Ireland and so ensure that it applies across the whole United Kingdom as intended.

On Amendments 44A and 44B, relating to the position of the Channel Islands, I declare an interest as a soon- to-be-retired member of the Courts of Appeal of Jersey and Guernsey. I have written to the Minister on this issue already and await with interest his response to the compelling points made by the noble Lord, Lord Dubs. I add only that the irregularity that he has identified surely applies, as he indicated, not just to Jersey or the Channel Islands generally but to all the Crown dependencies—including, I assume, the Isle of Man.

[Lord Falconer of Thoroton (Lab)]

My Lords, I echo what my noble friend Lady Lister and the noble Lord, Lord Anderson, have said, in supporting the approach that the noble Lord, Lord Dodds, has taken on behalf of Northern Ireland. I do not necessarily agree with the suggestion that he is making to solve the problem, but it is clear that what he is saying—and what I believe the people of Northern Ireland are entitled to—is total openness about what is going to be achieved in relation to this. If the position is that the Government are saying with one voice that, actually, Northern Ireland will be treated exactly the same as the rest of the country, because the Windsor Framework relates only to trade, whereas in fact the position will be different, the Government should either come clean in relation to that or should propose amendments.

I echo also what the noble Lord, Lord Anderson, said, which is that, if the Government were to accept some of the amendments that have been made on Report, which in effect incorporate some degree of judicial control, the question of there being any inconsistency between the Northern Irish position and that of the rest of the United Kingdom would almost certainly go away. It may be that that solution is not welcome to the noble Lord, Lord Dodds, but it would nevertheless lead to a conclusion that there would be no difference in the position between Northern Ireland on the one hand and the rest of the United Kingdom on the other.

I also support my noble friend Lord Dubs when he raises the question of why the Channel Islands are not being treated with the usual constitutional respect with which they are normally treated. What is it about this Bill that makes the Government think that they can throw all constitutional convention to the wind?