Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Carlile of Berriew and Lord Bishop of Chelmsford

Committee stage
Wednesday 14th February 2024 Lords Chamber

[The Lord Bishop of Chelmsford]

My Lords, I support Amendment 33 from the noble Lord, Lord Kirkhope of Harrogate, to which I am a signatory. I am grateful to the noble Lord for the amendment and I welcome the opportunity to discuss the role of Parliament if a higher court were to declare this legislation to be incompatible with the convention right, or indeed a number of rights.

We should not forget that the Government have been unable to make a statement in the Bill that it is compatible with convention rights. As the Government nevertheless wish Parliament to proceed with the Bill, it seems prudent to probe what the role of Parliament would be in determining how any potential incompatibility should be addressed. In fact, the Attorney-General has said in the Government’s own legal position paper that it should be for Parliament to address any determination of incompatibility by the courts. The noble Lord, Lord Kirkhope, has eloquently set out the motivation for this amendment, and I agree that what it does is simply to expound what parliamentary sovereignty would look like in this context.

I appreciate that the Government believe that there is no basis for a declaration of incompatibility, and that therefore Section 4 of the Human Rights Act has not been disapplied. However, if Parliament proceeds to pass the Bill on the basis of this view, but the domestic courts declare otherwise, can the Minister say what objection there can be for giving Parliament a clear opportunity to revisit this issue? Surely the Government and Members across all Benches agree that parliamentary sovereignty includes the legislative function’s ability to oversee the executive function. As the legal position paper reads:

“The principle that Parliament should be able to address any determination by the courts of incompatibility, rather than primary legislation being quashed by the courts, is part of the fundamental basis of Parliamentary sovereignty”.


The Human Rights Act does not compel the Government or Parliament to remedy an incompatibility, but Parliament must be able to take steps to do so. It is not unreasonable to expect Ministers to explain—and to explain without delay—why they may not be bringing forward a remedial order. If the Minister disagrees with this supposition, can I ask him to please make clear the Government’s position?

Your Lordships will know that we have spoken with one voice on these Benches, as we believe that the Rwandan partnership agreement is an abdication of both our legal and our moral responsibility to refugees seeking sanctuary here in the UK. It is highly disturbing that this Bill implies that human rights are somewhat discretionary, somehow no longer universal, and that they can be disapplied for those reasons outlined in domestic law.

The fundamental truth that I believe in is that every person is equally deserving of rights, as every person is equally made in the image of God. However, this is not just a theological statement but also an indisputable legal principle that underpins our international human rights framework: that all are equal before the law. Noble Lords will know that I am not a lawyer, but this point was very well made by the noble Baroness, Lady Chakrabarti. She made it powerfully, better than I could do. Removing asylum seekers from certain protections enshrined by the Human Rights Act severely undermines the universality of human rights and our collective access to justice. As the refugee convention states, protection is not a simple concession made to the refugee; he is not an object of assistance but rather a subject of rights and duties.

Human rights are not an opt-in or opt-out concept, and Section 4 of the Human Rights Act gives the courts the opportunity to remind us of that. This is surely central to the UK’s commitment to the rule of law. Parliament has the right to create law, but our authority cannot extend to creating injustices. Parliament therefore may need to ask whether we should maintain parliamentary consent if the Bill is found to not afford adequate protection of fundamental human rights, and Amendment 33 facilitates this. It is a perilous time for the protection of human rights across the globe, and the UK’s contribution should not be to diminish their value or put them further out of reach for some of the world’s most vulnerable people. I hope and pray, therefore, that we have the chance to revisit the proposals in the Bill.

[Lord Carlile of Berriew (CB)]

My Lords, I shall speak in qualified support of Amendment 33, but before I do so I should say that it is a pleasure to follow the right reverend Prelate. Outside this House as well as within the House, I have heard her deploying her calm, compelling advice on a range of subjects connected with refugees and asylum seekers, and she has done so with her usual skill this evening.

Before I get to Amendment 33, however, I need to make two apologies and I hope the court will bear with me. The first is for my absence from the Committee until I arrived back this afternoon. My second apology is that right at the end of the debate at Second Reading, I made a factual error, for which I take full responsibility, although the advice came from elsewhere, when I said that homosexual acts were still illegal in Rwanda. I am glad to say that homosexual acts are not illegal in Rwanda: I was wrong. Having said that, the evidence of how homosexual acts are seen by society in Rwanda is now well behind the law that the Government there have introduced.

I turn to Amendment 33. We heard earlier from the noble and learned Lord, Lord Stewart, about the importance of Parliament as a court. Yes, the lawyers are more familiar than others with the expression “the high court of Parliament”. It is a nice conceit that Parliament likes to deploy from time to time, but it does not actually add up to a statement of fact. Let us just think about how courts operate. I am concerned to some extent about the abstraction of our debates on the subjects we are discussing at the moment. Let us consider what actually happens when a lawyer—say me or one of a number of my noble friends and colleagues around the House—has a client, in a room which they have entered extremely nervously, or in a very unpleasant surrounding in a place of detention, who has a very serious problem on which their whole future depends, whether it is a very long prison sentence, the break-up of the family or being sent to a faraway country where they never intended to go.

What we as lawyers do is, first, to analyse the complaint that is made. Secondly, we give an opinion as to whether there is an injustice. I hope that we are always frank; we sometimes have to be cruel to be kind in telling the truth. But if there is an injustice then we explain that the golden thread of English law actually has a number of strands. Yes, one is the jury system— I heard that replayed on the radio today—but another is that if there is a wrong, there is a remedy for it. It may be difficult to achieve a remedy for the wrong but there is a remedy and a procedure, and that procedure can be taken to a court.

Nationality and Borders Bill

Debate between Lord Carlile of Berriew and Lord Bishop of Chelmsford

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords—oh, sorry.

[The Lord Bishop of Chelmsford]

Thank you. My Lords, I am grateful for the suggestion that the House might like to hear from the Lords spiritual. I support the amendment in the name of the noble Baroness, Lady D’Souza, which proposes that Clause 9 should not stand part of the Bill. We debated this at some length in Committee. It is somewhat disappointing that the Government have not taken the opportunity to reconsider more fully. I will not delay the House by repeating the arguments, but I will briefly speak about trust.

The Government seem genuinely confused by the level of opposition that the clause has triggered, but this should not have been surprising because I am afraid that it is symptomatic of a serious breakdown in trust between the Home Office and society groups, particularly minority ethnic groups, as we have heard. The response to the Windrush Lessons Learned Review promised a new culture in the Home Office—one that was more compassionate, that saw faces behind the cases and would rebuild and enhance

“public trust and confidence in the Home Office”.

The Bill as a whole does not do much to create the impression that this new culture has been embedded. Trust is hard to build and very easy to lose. On the issue of deprivation of citizenship and the treatment of minorities, trust is sufficiently low that any new changes to these powers must surely come with a compelling and overwhelming demonstration of a serious and widespread problem that needs to be solved.

I remain unconvinced that the Government have demonstrated that there is a sufficiently major problem that existing powers do not address. I am quite convinced that the impact this clause will have—indeed, already has had in continuing to undermine trust between the Home Office and civil society—is serious enough that the Bill would be greatly improved by Clause 9 being removed in its entirety. Having said that, I have heard the words of the noble Lord, Lord Anderson. He provided a compelling and informed case for his saving amendments. I will listen with interest to the Minister’s response.

[Lord Carlile of Berriew (CB)]

My Lords, I apologise to the right reverend Prelate the Bishop of Chelmsford for my lack of control over my new varifocals, and to your Lordships for entering the debate at this late stage. I have been listening to the debate in the context of my concerns about the majority judgments in the D4 case, which has already been mentioned. I read my noble friend Lord Anderson’s amendments and listened with enormous care to his very clear—indeed, brilliant—opening. I support his amendments. My view is that they go further than is absolutely necessary in terms of proportionality between the duties and rights of citizens and the setting of safeguards to ensure that this equation is well balanced. Overbalancing in favour of protections is a good fault in the circumstances, hence my declared support for my noble friend’s amendments.