Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Anderson of Ipswich and Lord Purvis of Tweed

Committee stage
Monday 19th February 2024 Lords Chamber

[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.

[Lord Purvis of Tweed (LD)]

I am not a lawyer and I do not wish to refer to any of the legal aspects of the amendment; there has already been enough of that in the excellent contributions from noble and learned Lords. I just want to address the point about why the United Kingdom should feel that we are particularly vulnerable to this court.

There has been reference to other countries that have had interim measures granted against them. It is of course the case that the interim measures relating to the Rwanda MEDP have a high profile. The noble Lord, Lord Faulks, seems to continue to be uncertain as to why the interim measures were given. I think he knows that, on the day that the court issued the interim measures, it also issued the statement of the decision when it notified the UK Government of the interim measures. These are public documents and they are online.

The interim measure relating to the case of NSK was put in place on the grounds that that the individual should not be removed to Rwanda until the ongoing domestic judicial review process was concluded. That is the reason the court gave for that case. I am not a lawyer and I know the noble Lord, Lord Faulks, is, but it sounds reasonable to me that while a domestic—

National Security Bill

Debate between Lord Anderson of Ipswich and Lord Purvis of Tweed

Report stage
Wednesday 1st March 2023 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I am not sure whether the noble Lord will seek to test the opinion of the House—he is nodding from a sedentary position. If he does, we will support him. However, that is not to disregard that the Government have listened and responded positively to the points made in Committee on the need for independent oversight.

Therefore, I will support what the Government say, with just with one question regarding oversight and their intention. We have two former independent reviewers in the House at the moment. I am not sure what normal practice is, but the Government’s amendment, regarding the independent reviewer providing a report to the Secretary of State and the Secretary of State then laying that before Parliament, gives no indication of a timeframe for laying the report before Parliament after it has been received from the independent reviewer. Given the earlier comments from the noble Lord, Lord Coaker, regarding Governments not providing information to Parliament in a timely manner, could this unfortunately be a wee loophole in the independent reviewing? It seems that the amendment gives Ministers complete discretion on when they may present reports to Parliament. Therefore, reports could be received from an independent reviewer but not presented to Parliament for a considerable period or at all.

I hope that is not the case and that this can be clarified by the Minister, but it is an omission within the Government’s amendment, which is otherwise welcome. As I say, the Government have moved, but I hope that the Minister can respond on the areas of omission.

[Lord Anderson of Ipswich (CB)]

The noble Lord, Lord Purvis, hits on a sore point for independent reviewers past and present. At the instigation of my noble friend Lord Carlile, the Australians copied the job of independent reviewer—I think they call him or her the independent national security legislation monitor, which is even more indigestible. In doing so, they provided in their statute that reports be laid before Parliament within, I think, 15 sitting days of receipt by the Minister, an excellent discipline which I rather wish this amendment had followed.

I do not wish to seem ungracious. The independent review of powers, whose exercise is attended by secrecy, is a token of good faith on the part of government. It has proved its worth since the 1970s in this country in the context of counterterrorism law. I never doubted the good faith of the Government where this Bill is concerned. This amendment will make that good faith evident to others. It will help to dampen down the conspiracy theories that are so prevalent in this area and allow us to keep pace with Australia—and shortly, I hope, Ireland—in providing for independent oversight of almost the full range of national security laws.

However, gratitude has its limits. On first inspection, the amendment tabled by the noble Lord, Lord Coaker, looks even better, so if he divides the House, I shall vote for it.

National Security Bill

Debate between Lord Anderson of Ipswich and Lord Purvis of Tweed

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, it is a pleasure to follow two such clear and thought-provoking speeches. When this House has debated treason offences in recent years, it has generally been in the context of lending support to terrorist groups, particularly in foreign theatres such as Iraq and Syria. It has never seemed to me that there is much point in bringing treason into this. The bristling arsenal of counterterrorism law is already equal to any conceivable type of assistance to terrorism or adherence to a terrorist cause, whatever the nationality of the subject and regardless of the state, if any, against which terrorism is directed. As the noble Lord, Lord Bethell, put it, the boundaries are closely drawn and abundantly clear.

Prosecutions for treason in this area would certainly have the potential to raise the emotional temperature, both for us and for the terrorists themselves. I am against such prosecutions because they are exactly what the terrorists want: to elevate their squalid and immoral behaviour into some sort of noble cause. I remember this point being well made from the Government Front Bench by the noble Baroness, Lady Williams, who is not in her place, shortly after I joined your Lordships’ House in 2018. She said that

“prosecuting terrorists for treason would risk giving their actions a credibility … glamour and political status that they do not deserve. It would indicate that we recognised terrorists as being in some formal sense at war with the state, rather than merely regarding them as dangerous criminals.”—[Official Report, 31/10/2018; col. 1382.]

No doubt this is why militant republicans in Northern Ireland were not given the platform of treason trials but rather prosecuted for murder, firearms and explosives offences and, more recently, catch-all offences such as the preparation of terrorist acts, which carries a maximum sentence of life imprisonment.

If we are looking for simple and effective ways to prosecute foreign terrorist fighters—particularly if they are suspected to have been active in a country where assistance from the authorities in gathering evidence is unlikely to be forthcoming—we would do better to concentrate on the offence of entering or remaining in a designated area, which was pioneered in Denmark and Australia, recommended for consideration in one of my own reports as independent reviewer, and introduced by the Counter-Terrorism and Border Security Act 2019. However, I believe that no terrorist hotspot has ever been designated under that Act, so the provision remains unused.

This amendment moves the debate on, as the noble Lord, Lord Bethell, explained, in that it relates to aiding not terrorism, but hostile foreign powers. The clause would target those who assist the Governments of countries with which we are at war or which wish to attack the UK by unspecified means including, I assume, cyberattacks on our national infrastructure. Unlike its Australian equivalent, which was introduced after 9/11 but is still to be used for the first time, it would relate only to hostile state activity—indeed, hostile state belligerence.

I look forward to hearing the Minister’s view on whether there is a gap in our law regarding assistance to the enemy—or will be one once the Bill, including Clauses 3 and 13, has become law. There might be a gap: I believe that Canada and New Zealand have their own laws against assisting the enemy, though I am not very familiar with them. Our own Foreign Enlistment Act 1870, introduced to restrict mercenary activity in the wake of the American Civil War and Franco-Prussian War, may not be as antiquated as the Treason Act 1351, but it was last used in the aftermath of the 1896 Jameson raid. It should certainly be reviewed if we are thinking of legislating in this area.

As we heard from the noble Lord, Lord Bethell, advocates of a treason law are often motivated by a sense that betrayal—in the words of the Policy Exchange report to which he referred, which was co-authored by the current Security Minister—

“is a specific crime against society and one that deserves punishment.”

I entirely understand that feeling, but betrayal is a regrettable fact of life, and one which we do not consider deserves special punishment in other contexts. The child who kills his parents betrays the family bond, but parricide and matricide are simply types of murder. Those who betray the most sacred bond of all—that of matrimony—may be called adulterers but are not criminalised at all. Can it be said that the bond of citizenship is of a wholly different nature, such that to break it must attract the most severe consequences? I think that is a difficult argument to make, particularly in circumstances where it is now so easy for the Home Secretary to break that bond by depriving people of their citizenship whenever she considers it

“conducive to the public good”.

Incidentally, that is something I hope we will look at some day: in the 15 years to 2020, there were 175 such deprivations on national security grounds alone.

This amendment, interestingly enough, does not follow the Policy Exchange model. Like its enacted but unused Australian equivalent, it has nothing whatever to say about betrayal. It applies to everyone, without limitation to British citizens or even to those who have been given leave to enter and remain in the United Kingdom. I assume it is not intended to apply extraterritorially, or it would criminalise the soldiers of foreign armies, contrary to the principle of combat immunity. But if the amendment is motivated by the desire to punish the betrayal of those who owe allegiance to the Crown, it does not succeed in that aim. Indeed, it is difficult to see why it flies under the banner of treason at all.

My position is simple. If there is a gap in the law as regards material assistance to the enemy, I would be in favour of filling it with an offence punishable by life imprisonment. That offence would be directed to our protection and would therefore apply to all persons within the jurisdiction. Betrayal of a bond of allegiance to the state would be an aggravating factor but not the basis for a separate treason offence, which is needed in neither the terrorism context nor the hostile state context.

[Lord Purvis of Tweed (LD)]

My Lords, it is a privilege to follow the noble Lord. I share his views and those laid out so well by the noble Lord, Lord Carlile. I thank the noble Lord, Lord Bethell, for allowing us to pose some fundamental questions, but I share the concerns of others who have spoken about whether this amendment answers them. Who are the enemy, and what is an attack? These are not easy questions to answer. I respect those who have worked in our intelligence services and have grappled with these questions over many years. Framing legislation to neatly define who our enemy is at any given time is not easy, nor is it easy to define what an attack is.

From reading the notices provided by MI5 earlier this year and the speeches made by intelligence services leaders, in many respects, it seems that we are under perpetual attack. It is hard to define in the modern sense those grey areas that the noble Lord, Lord Evans, and I discussed on Monday. What is an attack and what is preparatory to an attack? Perpetual cyberactivity can be either an end in itself or preparatory to a bigger effect. In many respects, we are in a state of war with Russia, with hybrid and economic warfare. Our sanctions are not penalties for actions; they are meant deliberately to overtly change the behaviour of a foreign power. I understand the rationale behind the amendment, but it perhaps does not address that clearly. When the noble Lord, Lord Bethell, responds to the debate, I would be grateful if he could clarify the meaning of “an attack”.

I welcome proposed new subsection (2)(e), which references acts that

“prejudice the security and defence of the United Kingdom”.

This is along the lines of what we were arguing for on Monday—trying to sharpen these areas. So we have persuaded someone on this—if not the Minister.

I think this raises another question, which was also raised on Monday. If a foreign intelligence service carries out activity which is not authorised or approved by our intelligence services, the Minister said that that was prejudicial to the safety and interests of the United Kingdom, but he did not say it was unlawful. This now raises an issue that we have to debate further in Committee. Some of the activity which could be defined as attacks or activity against the security and defence of the United Kingdom is not currently unlawful. We need to tackle that.

I close by agreeing very strongly with the noble Lord, Lord Anderson, that either in further consideration of this Bill or separately, we must look at how we interact with the issue of mercenary groups and groups that we would categorise as terrorist groups but that other countries would categorise as civil society groups or NGOs, which are fully funded and equipped by foreign states and operate in other countries, but are threats to UK nationals and UK interests. I travelled to north Iraq many times during the time when Daesh had overtaken Mosul. I saw many groups that were fully funded by Iran operating, sometimes with our compliance, sometimes with our approval and sometimes with our co-operation. At other times, they were operating absolutely against those interests, as with the interaction between some of the terrorist forces and some of the rapid deployment forces. I have seen first-hand in Sudan and elsewhere the Wagner Group, which is fully funded and equipped by Russia. How we cover mercenary and other groups that are not neatly defined within the proscriptions of terrorist legislation is something we also need to tackle. While I do not think this amendment would enable us to tackle this, it has allowed us to raise some of these fundamental questions, so I am grateful.