Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Anderson of Ipswich and Lord Inglewood

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Inglewood (Non-Afl)]

My Lords, as someone who was called to the Bar many years ago and has not subsequently done a great deal of law directly, I have been interested, amused and dazzled by the breadth of learning that we have heard.

I would like to make a couple of remarks. I start with what the noble Lord, Lord Hannay, said. We live in a world where we have domestic jurisdiction, but also where everyday life is very significantly affected by all kinds of international agreements and arrangements, and we all benefit from that. Against that background, it is important that that system remains stable and respected; if it does not, we will all suffer.

We have heard this evening the arguments as to whether there is jurisdiction in respect of interim injunctions from the ECHR. I personally do not feel qualified one way or another to make a value judgment about that. What I do think is important is that, once you have got the interim injunction—and I heard what the noble Lord, Lord Faulks, said—that is a piece of evidence that is relevant to the issues that we are discussing.

On balance, the interim injunctions—there are not many of them, as the noble Lord, Lord Scriven, said —are evidence that something is not quite right. I am therefore concerned about the provisions in Clause 5 that we have been talking about: there will be a power with the Minister to set aside a piece of evidence, which I believe has come from a respectable source, that something is not right.

I think the remarks of the noble and learned Baroness, Lady Butler-Sloss, were very important. Regardless of international law, this is important in the context of domestic law, where there is real evidence—and I think it is real evidence—that something is awry. If you are to have some provision of the kind that we are considering this evening, there has to be a presumption that it will be adhered to but also that, if you are concerned, there is some kind of mechanism to set it aside, rather than the other way around.

[Lord Anderson of Ipswich (CB)]

My Lords, as a signatory to the stand-part proposition in the name of the noble and learned Lord, Lord Etherton, I will confine my remarks to the question of whether it is contrary to the European Convention on Human Rights, and thus to international law, for a contracting state to disregard interim measures issued by the European court under Rule 39. Spoiler alert: it is, and the question is not so difficult as some noble Lords have suggested.

I declare an interest as a member of the Bar who has appeared for 30 years or so in that Strasbourg court, both for applicants and for states, and who has therefore been on the wrong end of some Rule 39 measures, including at least one which the court had to be persuaded to reverse. So I welcome the steps that the European Court of Human Rights is taking, partly at the instigation of this country’s Government, to improve its procedures and make them more transparent, including, as the court itself announced on 23 November last year, the attribution of interim measures to the judges who made them.

We have heard a lot about the Policy Exchange paper of last May. The arguments have been very well summarised in other speeches, particularly those of the noble Lord, Lord Wolfson, who has spoken to them a couple of times. Happily, I do not need to take your Lordships through those arguments or, indeed, the detailed rebuttals of them, which will be found in the Bingham Centre report of July of last year. Both reports are footnoted in the Constitution Committee report, to which the noble and learned Lord, Lord Falconer, has referred. The reason that I do not need to do that is that the position was made completely clear in law by the European court, in a judgment that has been referred to: the 2005 judgment of the Grand Chamber in Mamatkulov v Turkey.

It has been mentioned, but I will say a little more about it. Of the 17 judges who ruled on this issue in the Grand Chamber, a clear majority of 14 held that Article 34 of the convention, which guarantees the effective exercise of the right of application to the Strasbourg court, is violated when a state fails to comply with interim measures. For 13 of those 14, violation follows automatically from a failure to comply. The 14th thought that there was a violation if, as in Mamatkulov itself, applicants are as a matter of fact prevented from effectively exercising their right of application,

Three judges dissented: those appointed by Turkey, Russia and Liechtenstein. Their dissent is long and tightly argued. Policy Exchange would have been proud to publish it. Its authors looked at the text, the preparatory materials, state practice, the analogy with the International Court of Justice and the relevant rules of international law—all ground covered subsequently by Professor Ekins and tonight by the noble Lord, Lord Howard, and the noble and learned Lord, Lord Hoffmann. They accused the court, just as Professor Ekins did, of exercising a legislative rather than an interpretative function.

Court cases, unlike academic debates, produce clear winners and losers. The result of Mamatkulov, since followed in other judgments, is quite simply conclusive of the matter. The arguments advanced by the dissenting judges, and later by Professor Ekins, were decisively rejected. Why does this matter? Again, noble Lords have had reference to it: the reason it matters is Article 32 of the European Convention on Human Rights, which provides two things of importance. First,

“the jurisdiction of the court shall extend to all matters concerning the interpretation of the convention”.

Secondly, as my noble and learned friend Lord Etherton said:

“In the event of dispute as to whether the Court has jurisdiction, the Court shall decide”.


That is really it. The European Court interpreted Article 34 in Mamatkulov as requiring compliance with interim measures issued by the court because, as the court put it in its judgement at paragraph 135, interim measures

“play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and when appropriate securing to the applicant the practical and effective benefit of the Convention rights asserted”.

That ruling is binding, as the United Kingdom agreed it would be when we signed and ratified the convention, including Article 32. Perhaps we should not be very surprised that a treaty means what the court constituted to interpret it says that it means. Even the dissenting judges did not suggest otherwise. They did not like the majority judgment, but neither did they describe it, in a word recently used by Professor Ekins, as “lawless”. They accepted it.

State practice since the Mamatkulov decision is supportive of it. The Committee of Ministers, of all the Council of Europe states, resolved in 2010 that

“the Court’s case law has clearly established that Article 34 of the Convention entails an obligation for States Parties to comply with an indication of interim measures made under Rule 39 of the Rules of Court”.

The requirement on states parties to comply with interim measures was reiterated in the Izmir Declaration of 2011 on the Brussels Declaration of 2015, to which of course the United Kingdom was a party. It was endorsed in very clear terms by the French Conseil d’Etat as recently as 7 December last year, when that senior court required a person deported to Uzbekistan in breach of interim measures to be repatriated at the state’s expense.

In a recent email to noble Lords, Policy Exchange described its own 2023 paper as “authoritative”. I am afraid that whoever wrote that was high on their own supply. It is supported neither by the court whose job it is to provide authoritative interpretations of the convention nor by state practice, nor even, subject to anything the Minister may say, and I will be listening carefully, by our own Government. That at any rate is what I take from the last paragraph of the ECHR memorandum on the Bill.

To throw this established position into doubt might once have been merely eccentric; in current conditions, it is positively dangerous. As recently as 2005 there was a culture of compliance. The Strasbourg court could say, in Mamatkulov, paragraph 105:

“Cases of States failing to comply with indicated measures remain very rare”.


However, the “good chaps” theory no longer prevails in the Council of Europe. Russia challenged the jurisdiction of the court in 2021 when it required Alexei Navalny to be immediately released from prison due to the risk to his life and health—interim measures strongly supported by our Government—while Poland challenged it last year when its previous Government refused to comply with interim measures relating to the politicisation of its judiciary.

Supranational courts do not have bailiffs to enforce their decisions. The fabric of international law—that “gentle civiliser of nations”, as it was once described—is easily torn but not so easily repaired. It can be torn by acts such as that which is proposed to us—acts that enable or facilitate actions in breach of international law.

Clause 5 is peculiar, as the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Hoffmann, have both said. If Rwanda is as safe, as the Government invite us to declare, Clause 5 is unnecessary. If it is not safe, Clause 5 will compound the injustice of Clause 4. Either way, Clause 5 extends the damage already done by Section 55 of the Illegal Migration Act because it severs the link, praised by the noble Lord, Lord Jackson of Peterborough, between non-compliance and procedural reform. If we accept this clause, we will not only be authorising Ministers to contravene this country’s obligations; we will be handing an excuse to illiberal Governments across the continent to do the same, and worse. We should be ashamed to do so.