Rule of Law

Lord Etherton Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Etherton (CB)]

I too welcome the noble and learned Baroness, Lady Smith of Cluny, to her ministerial position and congratulate her on an excellent speech.

What is the importance of the rule of law? In brief, it is a national standard of minimum rights for a free and democratic United Kingdom and an international standard for democracies across the world. On both these points, I agree with much of what the noble Lord, Lord Wolfson of Tredegar, said. Lord Bingham specified in his book, already referred to in this debate, eight core ingredients of the rule of law. I shall not weary the House by setting them out, but they must be borne in mind as each is specific and limited. It is sufficient for me to say that he summarised the core principle as:

“all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly”

made, generally taking effect in the future

“and publicly administered in the courts”.

I will mention a few of the ingredients of the rule of law in more detail. First, the rule of law requires access to an adjudication process that will resolve disputes and enable rights to be enforced. Traditionally, that adjudication has taken place in physical buildings and with the parties physically present or represented before a judge or panel of judges. Nowadays, such processes are increasingly conducted remotely by videolink, telephone or online procedural processes.

There has sometimes been a tendency to see litigants as customers, paying court fees in return for service, but the provision of this facility is the responsibility of the state as part of the rule of law. People are entitled to the resolution of their disputes not because they are customers but because that is the right of a citizen living in a state governed by the rule of law. It is not impermissible for the state to charge a fee; it can do so, but only if the fee is reasonable and affordable.

The first question arising from this ingredient of the rule of law is whether this country satisfies that requirement. Bearing in mind the backlog of cases in family, civil and criminal law, the shortage of judges and, in some cases in criminal law, the absence of sufficient counsel to deal with the matters, I question whether the United Kingdom is in compliance with that aspect of the rule of law.

Next, I turn to the question of holding the Government, public bodies and officials to account for abuse of the law and of their powers. The first thing to acknowledge is that if laws themselves comply with the eight factors set out by Lord Bingham, that will in practice have some constraining influence on official oppression and abuse. If laws are generally applicable without exclusion for officials and are known and clear, the scope for corruption or other abuse of power is reduced. It is equally plain, however, that for there to be an effective constraint on official abuse and oppression, citizens must have access to dispute resolution procedures administered by an independent judiciary in which such abuses can be challenged.

As the noble Lord, Lord Wolfson, mentioned, this reflects the fact that the concept of the rule of law antedates by many centuries our present concepts of protection of human rights. Indeed Aristotle wrote about this in the fourth century BCE, as the noble Lord said. Again, as of the previous questions I posed, I think one must question whether the current state of the resources for the courts for the adjudication of these claims is adequate to satisfy our obligations as a country under the rule of law.

Before I turn to the next item, which should be the question of human rights, it is important that I address the rule of law as an international standard. In a report to the Security Council of the United Nations in August 2004, the then UN Secretary-General said:

“The ‘rule of law’ is a concept at the very heart of the Organization’s mission”.


In September 2015, the UN agreed a set of sustainable development goals for 2015 to 2030 that came into force in January 2016. Goal 16.3 enshrines a commitment by all UN members to:

“Promote the rule of law at the national and international levels and ensure equal access to justice for all”.


In March 2016, the Council of Europe’s Commission for Democracy through Law, known as the Venice Commission, published a rule that said:

“The Rule of Law is a concept of universal validity”.


The setting of UN SDG goal 16.3 to

“Promote the rule of law at the national and international levels”


underlines that the concept of the rule of law must be appropriate as an international standard capable of applying to different countries with their varied histories, cultures, constitutions and political engagements. The concept of the rule of law is rightly applied as an international kitemark of minimum standards. It is therefore used both to criticise and to encourage improvement in failing regimes.

There is not any one court which adjudicates on human rights across the world, however. Many courts adjudicate in relation to different concepts of human rights in different countries. That is why although there is, inevitably, some overlap between the rule of law and some human rights, such as the right to a fair trial before an independent tribunal according to known laws, which provide the measure of constraint against official corruption, that overlap is quite different in principle from the notion that the rule of law requires the promotion or protection of human rights generally. I agree with noble Lord, Lord Wolfson, that this thin edge—as it is called—or thin version of the rule of law is consistent with the checklist appropriate for an international concept of the rule of law and is also supported by the position of the Venice Commission in a report in March 2016.

There is here an area in which the United Kingdom, with its long history of the rule of law and human rights, can take a lead in bringing about a consensus as to the most essential human rights in a democracy, perhaps centred on the Universal Declaration of Human Rights. At the same time, however, as I have said, the United Kingdom itself must improve its adherence to the rule of law by increasing the available facilities and resources for resolving disputes between citizens and between citizens and public bodies. I hope that the Attorney-General’s welcome initiative on the rule of law addresses these important points.

Litigation Funding Agreements (Enforceability) Bill [HL]

Lord Etherton Excerpts

Committee stage
Monday 29th April 2024 Grand Committee

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I thank the Government again for bringing this matter with such expedition before this Committee. I wish to make two observations. First, I warmly welcome the Constitution Committee’s report, which is helpful and will no doubt help the Government further on the retrospectivity point.

Secondly, I am glad that the noble Lord, Lord Marks, put forward his amendment because it enables us to thank the Civil Justice Council and the Government for putting the terms of reference in such broad forms. As I mentioned at Second Reading, there is a lot of experience worldwide on that, but since then I have discovered more about the position in Australia and hope that the work done by the European Law Institute will in part reflect the substantial Australian experience. The Civil Justice Council will be able to look at that. Having heard what has been said in Australia, one has to take care, as not all are as responsible as the members of the litigation funders’ body. Others are tempted to enter into this area, so one might see that Australia has a lot of experience of how to deal with this, looking not to the creation of yet another regulatory body but to whether the courts themselves, through the Civil Procedure Rules, can be given the powers and guidance necessary to deal with the issues.

No doubt we will return to this in the autumn of 2025 for a very interesting debate.

[Lord Etherton (CB)]

My Lords, I just want to probe the Government to an extent on the involvement of the House once the Civil Justice Council has finished its review. It is an independent body. It is not itself a rule-making body; the rules are made by the rule committee. While I absolutely welcome the opportunity for the Civil Justice Council, with its expertise, to carry out its review, no changes to the rules will be made without a statutory instrument. My question for the Minister is: at what stage in the process will we have an opportunity of commenting on any recommendations made by the Civil Justice Council? That includes, for example, what my noble and learned friend Lord Thomas of Cwmgiedd has just said on whether a recommendation is made to deal with the question of regulation through amendment of the civil justice rules.

[Lord Ponsonby of Shulbrede (Lab)]

I will make the briefest of comments. I welcome the amendments put forward by the Minister. I very much take to heart the point made by the noble Lord, Lord Carlile, that the Bill would be pretty pointless unless there was an element of retrospectivity to it. I read the information that we were sent by the Bingham Centre, which was informative and interesting, and by the Bar Council. I absolutely understand the primary purpose behind this legislation.

The noble Baroness, Lady Bennett, commented on the legal balance in this Committee. I join her, as a non-lawyer; I cannot match her for gender, I am afraid. However, I can talk about the clients who are paying for this. I might have made the point at Second Reading that, by my understanding, the bulk of the people who take advantage of this type of funding would be at the sort of middle to large-sized company where I was chief executive. It is a way of cash management, in essence, because you do not know what litigation is on the horizon and you do not want to spend too much time on the litigation because that takes time away from running the business. So having these ongoing litigation funding arrangements is a way of managing risk. For me, that was the main purpose of occasionally entering into those agreements, rather than the litigation itself.

The other primary point worth repeating is that a lot competitors out there would like this business—Singapore, Australia, Dubai and elsewhere. I was very aware of that when I was running a business. I was regularly approached by people wanting to reach alternative ways of resolving any disputes that may arise.

Nevertheless, given those thoughts from a client’s perspective, I welcome this legislation. The English and Welsh model should be as up to date and competitive as possible. In that sense, I welcome the Bill and the Government’s amendments.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Etherton Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

Moved by

[Lord Etherton]

38: Clause 4, page 4, line 12, after “question” insert “or, where the person in question is a member of a particular social group within Article 1A(2) of the Refugee Convention 1951, for that group”
Member’s explanatory statement
This amendment and the related amendments to Clause 4(1)(b) and Clause 4(4) provide for the situation where the person in question is a member of a particular social group, the members of which have a well founded fear of persecution, and following the decision of the Supreme Court in HJ (Iran) v SSHD [2010] UKSC 31 the focus is on the group and not the individual circumstances of each member of the group.

[Lord Etherton (CB)]

My Lords, in speaking to this amendment I will speak to Amendments 40, 43, 45 and 51, which I tabled, all of which are connected.

The current version of Clause 4(1) enables an applicant to oppose removal to Rwanda on the ground that it is not a safe country for the applicant only if the applicant provides

“compelling evidence relating specifically to the person’s particular individual circumstances”.

Clause 4(4) provides that the court or tribunal may grant an interim relief

“only if the court or tribunal is satisfied that the person would, before the review or appeal is determined, face a real, imminent and foreseeable risk of serious and irreversible harm”

if removed to Rwanda.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, as we have previously set out, the purpose of the Bill is to stop the boats and end the perilous journeys being made across the channel as it is the busiest shipping lane in the world. These journeys are overwhelmingly made by young, fit men in search of better job opportunities, who are travelling from a safe country. Males represented 88% of small boat arrivals in the year ending September 2023. This is a similar proportion as each year from 2018 to 2021.

Since January 2018, 75% of small boat arrivals have been adult males aged 18 and over. We need a strong deterrent to stop illegal migration and measures to prevent removals being frustrated; we have therefore taken bold steps. However, to ensure that we are meeting our international obligations, Clause 4 provides that a Home Office decision-maker or a court or tribunal can consider a claim that Rwanda is unsafe based on compelling evidence relating specifically to a person’s individual circumstances.

As the Government have set out, since the partnership was announced, UK officials have worked closely with the Government of Rwanda to ensure that individuals relocated under the agreement will be safe and that their rights will be protected. The Government’s legal position, published on 11 December 2023, further sets out that the treaty, and the evidence pack, provide for compliance with the Government’s substantive obligations under international law. Therefore, no one will be removed to Rwanda if they face a real risk of serious and irreversible harm.

I turn to Amendments 38, 40, 43, 45 and 51 in the name of the noble and learned Lord, Lord Etherton, and Amendment 41 in the name of the noble Lord, Lord Dubs, as spoken to by the noble Lord, Lord Cashman. These proposed amendments to Clause 4 would undermine one of the principles that the Bill is seeking to address; namely, to limit the challenges that can be brought against the general safety of Rwanda, even with the signed treaty and updated evidence presented by the Government.

The legislation is clear and affords the appropriate safeguards to ensure that decision makers make a decision about the particular circumstances of each case. The Bill already allows decision-makers and the courts to consider certain claims that Rwanda is unsafe for an individual person due to their particular circumstances, despite the safeguards in the treaty, if there is compelling evidence to that effect.

I of course entirely understand the desire of the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Cashman, to get clarity and certainty on this issue. For people who identify as LGBT+, that consideration would include any assessment of any compelling evidence reviewed in line with the principles outlined in HJ (Iran)—as referenced by the noble Baroness, Lady Chakrabarti—that being LGBT+ would mean that Rwanda was not safe for them in their particular circumstances.

As in all cases under the provisions of the Bill, individuals will be given the opportunity to provide that compelling evidence that they would be at risk in their particular circumstances if they were relocated to Rwanda. That would include any alleged harm as a result of an individual’s gender or sexuality. As I say, any such claims would be assessed on a case-by-case basis, and in the case of LGBT+ claims, that would include any assessment in line with the principles outlined in HJ (Iran).

I make it clear that the Rwandan penal code does not punish homosexuality or relations between people of the same sex. The constitution of Rwanda includes a broad prohibition of discrimination and does not criminalise or discriminate against sexual orientation in law or policy. As regards the FCDO advice, which I was asked about, paragraphs 173 and 174 of the policy statement deal with this, stating:

“As experts on the bilateral relationship between the UK and Rwanda and its development over the past thirty years, FCDO officials based in the relevant geographic and thematic departments working closely with colleagues in the British High Commission in Kigali have liaised with the Home Office throughout the production of this Policy Statement … Information drawn from their institutional expertise as to the in-country situation in Rwanda, and Rwanda’s history of compliance with its international obligations is reflected as appropriate throughout”.


The noble Baroness, Lady Bennett of Manor Castle, raised concerns about the unequal treatment of women in Rwanda during Monday’s debate. The Rwanda country report refers to the National Commission for Human Rights, or NCHR, which is a constitutional commission provided for by the Rwandan constitution. The NCHR is made up of seven commissioners. Each of them has a specific area of focus, including the rights of women. There is a commissioner who is a focal person for or who is in charge of those rights.

The country report concludes that the general treatment of women is good. Women and children’s rights, among those the NCHR monitors, have seen an improvement since the creation of the NCHR. That is reflected in the laws and the constitution, which provides for specific groups’ rights; for example, women, children, and the disabled. The situation is the same for women as for those who are disabled. They are allowed to be elected, and at each administrative level at least 30% of representatives have to be women. In Parliament, more than 60% of representatives are women; the current Rwandan cabinet is 50% women, and five out of the seven commissioners in the NCHR are women.

Women’s rights are respected in every area. Although the NCHR receives some complaints about rights to property, Rwandan family law was amended to allow women to inherit from parents in 1999. The country information note also refers to the police response to victims of gender-based violence and the Gender Monitoring Office, which considers specific issues relating to gender-based violence. The National Women’s Council is represented from village level and at every level above and is a channel for sharing information on anything regarding gender-based violence. It is the responsibility of local leaders to ensure that there are no gender-based violence issues in their area of control. Police monitor what is going on; they can investigate and come up with a report or action.

Furthermore, the rule of law index, which ranks countries on indicators including equal treatment and the absence of discrimination, ranks Rwanda 26th out of 142 countries worldwide and first out of 34 countries in the region. That is a measure of whether individuals are free from discrimination—based on socioeconomic status, gender, ethnicity, religion, national origin, sexual orientation or gender identity—with respect to public services, employment, court proceedings and the justice system. I add that the 2022 US State Department human rights practices report on Rwanda noted:

“Women have the same legal status and are entitled to the same rights as men, including under family, labor, nationality, and inheritance laws. … The law requires equal pay for equal work and prohibits discrimination in hiring decisions”.


As I indicated at the start, this clause provides the foundations for the Bill as a whole; it is fundamental to the effective operation of the scheme, and the amendments put forward would serve only to weaken its effectiveness. I therefore invite the noble and learned Lord to withdraw his amendment.

[Lord Etherton (CB)]

I am very grateful to the Minister for his reply and to those who have spoken. What the debate has shown, short as it was, is that the issue of social groups and how they fit into the legislation is very important. Many points were made on various issues that were all extremely valuable, including the wonderful examples given by the noble Lord, Lord Cashman. The noble Baroness, Lady Kennedy of The Shaws, referred to the ongoing discrimination even after decriminalisation took place here; the noble Lord, Lord Purvis of Tweed, made criticism of the equality impact assessment; and the noble Lord, Lord Scriven, referred to Human Rights Watch’s latest report.

In addition to those points, what this debate has teased out—and this fits in with the amendment spoken to by the noble Lord, Lord Cashman, on behalf of the noble Lord, Lord Dubs—is what the noble Baroness, Lady Chakrabarti, referred to as the “false binary”. It is a critical issue. For this, I am extremely grateful to my noble friend Lord Carlile, the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Falconer. Even after the Minister’s reply, it remains unclear how one treats someone who has not personally experienced persecution, because, for example, they have hidden their sexuality, their religious views or their political views, but who is a member of a group that has a well-founded fear of persecution were there to be an honest expression of their sexuality or their political and social views or a display of their ethnicity or race. How would one treat those people? The false binary does not allow one to take into account the effect of being a member of a group, as opposed to—as my noble friend Lord Carlile referred to it—being “about me”.

I ask the Government to consider carefully whether, without any undermining of the Bill and its purposes, the introduction of the amendments that I have tabled would not add an important element of clarity, both for those assessing claims—the Ministers, the Government and immigration officers—and for the courts. Subject to that, and on that basis, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Etherton Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I completely agree with that. The Ministerial Code is to be enforced politically, in many respects, not by courts. However, if the position is that it is a breach of international law not to comply with Rule 39, how could a Minister be acting lawfully? I assume that this Government are committed to the rule of law and therefore if it is a breach of international law not to comply with Rule 39—which is what the European Court of Human Rights says, and we are a country that abides by the law—is it not reasonable for that to be struck down on judicial review? I could be wrong about that and would be very interested to hear what the Minister has to say about it.

[Lord Etherton (CB)]

My Lords, I have given notice, with the noble Lord, Lord Anderson of Ipswich, of my intention to oppose the Question that Clause 5 stand part of the Bill. That is because, notwithstanding the eloquence of the noble and learned Lord, Lord Hoffmann, and the noble Lord, Lord Howard, its provisions are in plain breach of the United Kingdom’s obligations under international law and in breach of the rule of law.

Although complications have been cited and expanded on, the reasons for this are very simply stated. Article 32 of the convention states that the jurisdiction of the European Court of Human Rights

“extends to all matters concerning the interpretation”

and

“the application of the convention”.

Critically, in the event of

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

That is an approach that is not unknown to our own law in certain circumstances. Rule 39 of the rules of the European Court of Human Rights provides for the court to make interim orders. 

In Mamatkulov and Askarov v Turkey, to which the noble and learned Lord, Lord Falconer, referred, which was a case decided by the court in 2005, and Paladi v Moldova, decided by the same court in 2009, the European Court of Human Rights said that the failure of a member state to comply with interim measures is a breach of Article 34 of the convention. That article states that member states undertake not to hinder in any way the effective exercise of the right of the court to receive applications from any person.

Reference has been made to a lengthy and elaborate argument in a Policy Exchange document, published in 2023 during the passage of the Illegal Migration Bill, by Professor Richard Ekins, in which he contended that the power to make interim measures was outside the jurisdiction of the European Court of Human Rights. That is the document with which the noble and learned Lord, Lord Hoffmann, expresses his agreement. What is clear is that Article 32 confers on the court the right to determine the extent of its jurisdiction in the event that it is disputed. That article says so in the plainest terms, and, as a member state, we have signed up to that.

What is also indisputable, and is accepted by Professor Ekins, is that since the decision of Mamatkulov in 2005, the European Court of Human Rights has repeatedly upheld the binding nature of Rule 39 interim measures, and the UK Government have never once challenged before the Strasbourg court that decision and the binding nature of interim measures. Indeed, the United Kingdom has not only complied with such measures but called on other states to comply with them. It has supported resolutions and declarations that assume that Rule 39 is legally binding.

International law has, therefore, reached a settled state of practice and agreement between member states and the Strasbourg court. Whatever other course might properly be taken in the future—that could include matters concerning the way in which these orders are dealt with, about which the noble Lord, Lord Jackson, complained—it is clear that it would be a breach of international law and the rule of law for that settled agreement and practice to be peremptorily and unilaterally jettisoned by the United Kingdom acting alone. That is a basic principle of international law.

The wording of Clause 5 reflects similar, but not identical, provisions in the Illegal Migration Act. The challenge by Members of this House to those provisions in that Act were rejected by the Government and voted down in the other place. Should we then just placidly accept them now? I believe that it would be quite wrong to do so. This is yet another example of a blatant breach of the United Kingdom’s legal obligations. The other amendments in this group are worthy attempts to leave Clause 5 in the Bill but, in effect, to neuter its current intent and effect. My contention is that our constitutional role in this House impels us to reject Clause 5 in its entirety, and not provide it with any blanket of legitimacy, either in its current form or with amendments.

[Baroness Butler-Sloss (CB)]

My Lords, I was in a queue waiting to pay my bill at dinner and therefore arrived a few minutes late. I am very grateful for the Committee allowing me to speak.

I listened with particular interest to two of the most distinguished lawyers in this House: the noble and learned Lord, Lord Hoffmann, with whom I sat on the Court of Appeal regularly, and the noble and learned Lord, Lord Etherton. There is undoubtedly a potential dispute. Without going into what it should be, Clause 5(2) and (3) exclude the English court. The noble Lord, Lord Jackson, complained about the international court; ought we not to be complaining that the English court is excluded?

If there is to be a dispute with the Court of Human Rights, we might bear in mind that we are a member of the Council of Europe. If we blatantly refuse to follow the ECHR at Strasbourg, we might be turfed out, like Russia. Would we want to be the second country after Russia to be excluded from the Council of Europe? Some might not care, but others might think it would not look very good.

What I am complaining about is that Clause 5(2) and (3) will stop our domestic court making a decision. That seems a very good reason to support some, if not all, of the amendments.

Illegal Migration Bill

Lord Etherton Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, noble Lords across this House are to be commended for the anxious scrutiny given to this most controversial Bill over many hours, days and nights in Committee. Now, it is time to move through votes on as many already well-debated amendments as quickly as possible.

I have Amendments 1, 2, 3, 5 and 13 in this first group. However, short of any miraculous change of heart by the Home Secretary and the Government, it is the crucial Amendment 5, also bearing the names of the noble Lords, Lord Paddick and Lord Kirkhope of Harrogate, and the noble and learned Lord, Lord Etherton, that I shall press in what I hope will be a very short while. It replaces the rather long and strange narrative in Clause 1, so as to reinstate Section 3, the interpretation provision, of the Human Rights Act, and ensure that the rest of the Bill is read so as not to require that British officials, Ministers or His Majesty’s judges breach precious international treaties that our former statesmen and stateswomen played such a heroic part in creating. These are the ECHR of 1950, the refugee convention of 1951, the conventions on statelessness of 1954 and 1961, the UN Convention on the Rights of the Child of 1989, and the anti-trafficking convention of 2005.

This interpretation amendment is essential to protecting the most vulnerable people, including by any amendments to follow. It is equally important for the international rules-based order and for our reputation as a great democracy in a troubled world. That was two minutes. I beg to move.

[Lord Etherton (CB)]

My Lords, I support the noble Baroness, Lady Chakrabarti, on one legal point. In Committee, the noble Lord, Lord Wolfson of Tredegar, stated, quite correctly, that we have a dualist system under which international obligations are not part of our law unless specifically incorporated by statute. I consider that this interpretation amendment does not fall foul of that because it imposes no positive obligation to do anything specifically required under those treaties. It is simply of a negative nature to say that the Bill itself —and, in due course, the Act—must be interpreted so as not to conflict with those treaties. For my part, it is perfectly legitimate and legal.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, I declare my interests as a trustee of the Human Trafficking Foundation, and my work with the University of Nottingham Rights Lab.

The noble and learned Baroness, Lady Butler-Sloss, Karen Bradley MP and I were at an international co-operation event on human trafficking. Nothing better illustrated the importance of international co-operation than the discussions we had over the last couple of the days; they showed how important the UK’s reputation is.

I say to the noble Lord, Lord Horam: no one is saying that there is not a problem that needs solving. However, it should not be solved by trashing international conventions that we have signed up to but in a way which is consistent with them and which we should be proud of.

The noble Lord, Lord Wolfson, mentioned the UN Convention on the Rights of the Child. I remind him that it was the 1991 Conservative Government who ratified that convention. That was when we had a Conservative Government who, as the noble Baroness, Lady Helic, pointed out, actually put into practice most of these conventions. They were proud of it, the country was proud of it, and this Parliament was proud of it. We do not solve the problem that the noble Lord, Lord Horam, mentioned by driving a coach and horses through that.

Can your Lordships imagine what we would say if the other countries that have signed up to the international treaties which we have signed turned round and said, “We’re not going to abide by those treaties any more”? Imagine if they unilaterally declared that they would step away from them and have nothing to do with them. That is the point of principle.

There is something else that I found absolutely unbelievable. I say to the noble Lord, Lord Horam, that we absolutely support Amendment 5, tabled by my noble friend Lady Chakrabarti, and one reason I did not put my name to it is that we wanted to show the breadth of support across this Chamber for that amendment. To think that I do not talk to my noble friend Lady Chakrabarti about different amendments, or that we do not work together, as we do, along with other Members of this House, is nonsense.

The noble Lord, Lord Wolfson, pointed out that the amendment says:

“Nothing in this Act shall require any act or omission that conflicts with the obligations of the United Kingdom”.


The noble Lord can have his point of view—I agree with that. My point is that it is unbelievable that this House has to have an amendment before it to actually require the Government of our country to abide by the international conventions that they have signed up to. That is the point of principle.

I do not know what dualism is; I had never heard of it until a couple of weeks ago—I think it was the noble Lord, Lord Wolfson, who tried to tell me what it was. I am still not sure I understand it, but what I do understand is that, if you sign international conventions, freely, then the obligation is on you to abide by those conventions, and that is the expectation of those countries which sign them with you. That is what we should stand for. It is why we will support Amendment 5 and are proud to do so.

[Lord Etherton (CB)]

My Lords, before the Minister replies, can I mention that I have two amendments in my own name, which are consequential? They relate to the ability to have judicial review if the amendment to Clause 1 succeeds.

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, as the noble Baroness, Lady Chakrabarti, has set out, Amendment 5 seeks to replace Clause 1 with a new clause that provides that nothing in this Bill requires an act or omission that conflicts with the five international agreements specified in the amendment. This includes the European Convention on Human Rights. Amendment 4, tabled by the noble and learned Lord, Lord Hope, is focused on compatibility with the ECHR. As I have repeatedly said in the debates on the Bill, and to reassure my noble friends Lady Helic and Lord Cormack, the Government take their international obligations, including under the ECHR, very seriously, and there is nothing in the Bill that requires any act or omission that conflicts with UK international obligations. Amendment 5 is therefore, on one level, unnecessary. But what might be viewed as a benign amendment takes a wrecking ball to our long-established constitutional arrangements, with uncertain consequences, as outlined by my noble friend Lord Wolfson.

Along with other countries with similar constitutional arrangements to the UK, we have a dualist approach, where international law is treated as separate to domestic law and incorporated only by domestic law passed by Parliament through legislation. We have, of a fashion, reproduced in domestic law aspects of the text of the ECHR through the Human Rights Act 1998, but that is not generally the case with other international instruments listed in the amendment.

The effect of this amendment would be to allow legal challenges based on international law in the domestic courts. As my noble friend Lord Wolfson has eloquently explained, this amendment would incorporate these instruments into our domestic law by the back door, thereby making substantive changes to the Bill. I therefore have to disagree with the noble and learned Lord, Lord Etherton, on the effect of Amendment 5. As my noble friend said, this is wrong in principle and far from being an academic point for the lawyers. There is a legitimate case to be made for incorporation but this is not the Government’s intention, and we should not make such a fundamental change to our domestic law on the basis of a two-hour debate in Committee and a rather shorter one again today.

The noble Baroness, Lady Fox of Buckley, hit the nail on the head in her insightful contribution in Committee. In the Bill we are legislating to prevent and deter the small boats by putting in place a scheme that makes it unambiguously clear that if you arrive in the UK illegally, you will not be able to stay; instead, you will be detained and returned to your home country or removed to a safe third country. That is the proposition we are seeking to put on the statute book. That is the proposition which Parliament will have endorsed and, having done so, that is the proposition that our courts should give effect to. As the noble Baroness said, we risk undermining the reputation of this place and the elected House if the clear intent of Parliament can be unravelled by this misguided amendment.

On the amendment in the name of the noble and learned Lord, Lord Hope, the Government have published two memoranda addressing issues arising under the ECHR, and I remain unpersuaded of the case for statutory guidance on how the Bill’s provisions are to be implemented compatibly with convention rights. It will undoubtedly be necessary to provide Home Office staff and others with appropriate guidance to support the implementation of the Bill. In the Government’s view, it would not be appropriate for such routine operational guidance on the implementation of a particular Act to be subject to parliamentary approval.

Amendments 13 and 16, in the name of the noble and learned Lord, Lord Etherton, would strike out Clause 4(1)(d), which makes it clear that the duty on the Home Secretary to make arrangements for the removal of a person who meets the conditions in Clause 2 applies regardless of any judicial review challenge to their removal. The noble and learned Lord’s explanatory statement for Amendment 13 describes it as consequential on Amendment 5. It may well be the noble and learned Lord’s intention to provide for judicial review challenges to removal—whether on ECHR grounds or otherwise—to be suspensive of removal, but that is not the Government’s stance, and I do not accept that his amendment is consequential on Amendment 5. We need a scheme that will enable removals in days and weeks, not, as now, in months and years. Clause 4(1) is critical to achieving that objective and I cannot support its evisceration.

Finally, as regards Amendments 1 to 3, I simply remind the noble Baroness, Lady Chakrabarti, that it is an offence to knowingly enter the United Kingdom without the required leave or to arrive without valid entry clearance or electronic travel authorisation. That being the case, Clause 1(1) quite properly refers to “unlawful migration” and “illegal routes”.

In response to the point raised by the right reverend Prelate the Bishop of Chelmsford, I point out that the refugee convention is clear that states can still operate controls on illegal migration. Under Article 31, it is indeed expressly permitted to disadvantage those who have arrived illegally from safe countries, which is true of all who come from France. This embodies the first safe country principle, in the sense that Article 31 protections apply only to those who have come directly from unsafe countries. The first safe country principle is widely recognised internationally, including in the common European asylum system, which is a framework of rules and procedures operated by the EU countries together, based on the refugee convention.

These amendments, particularly Amendment 5 but also Amendment 13, go to the heart of the workability of the Bill. Your Lordships’ House has a choice: either we can continue to accept the status quo, which could see the £3.6 billion spent on supporting asylum seekers in 2022-23 mushroom to £11 billion a year, or £32 million a day, by 2026, or we can back the Bill, retain Clause 1 and Clause 4(1)(d), and stop the boats. The House should be in no doubt that these are wrecking amendments. I therefore invite the noble and learned Lord, Lord Hope, not to press his Amendment 4, and ask the noble Baroness, Lady Chakrabarti, not to press her amendment. However, were she to do so, I would have no hesitation in inviting your Lordships’ House to reject the amendment.

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Moved by

[Lord Etherton]

13: Clause 4, page 6, line 9, leave out paragraph (d)
Member’s explanatory statement
This amendment is consequential to the amendment to clause 1 tabled by Baroness Chakrabarti and would enable an application for judicial review to be made while the applicant is in the UK regarding an act or omission in conflict with the provisions there.

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[Lord Etherton (CB)]

My Lords, I rise to address Amendment 37 in my name. I am extremely grateful to those who have co-signed: the noble Lords, Lord Cashman and Lord Scriven, and the noble and learned Baroness, Lady Butler-Sloss. This amendment addresses the countries specified as appropriate for removal in Schedule 1. A number of those countries are shown as not safe for women, but none of the specified countries or territories is shown as unsafe for any other diverse or minority group.

The amendment introduces a new clause after Clause 6, in which Schedule 1 countries in respect of which members of the LGBTQ+ community have a well-founded fear of persecution are specified, and to which they must not be removed. Secondly, provision is made for there to be no removal of anyone, whatever their background or ethnicity, for example, to countries where there is a proposal to commence proceedings under Article 7 of the Treaty on European Union. Finally, subsection (2) of the new clause empowers the Secretary of State by regulation to add to or remove such countries or territories.

In order to sustain this amendment, I need to refer briefly to the reasons why each of the countries mentioned in the amendment as being hostile and unsafe places for LGBTQ+ people are indeed unsafe. I will refer to Home Office country of origin information, Home Office country policy and information notes, known as CPINS, and independent reports. I will deal with this very quickly, and I will start with Brazil. According to Agência Brasil, the dossier on murders of and violence against Brazilian transvestites and transsexuals compiled by ANTRA—the National Association of Transvestites and Transsexuals—states that 131 trans and transvestite people were murdered in Brazil in 2022, making it the country with the most deaths of people from this community for the fourteenth consecutive year. Gambia is accepted as unsafe for LGBTQ+ people by the Home Office in its February 2023 CPIN. Ghana is accepted by the Home Office as unsafe for LGBTQ+ people in its May 2022 CPIN. In Jamaica, a number of cases have been decided that establish it as unsafe for people from the LGBTQ+ community, including the major case of Brown v the Home Secretary, a 2015 decision of the Supreme Court. In Kenya, decided cases—in particular, a well-known case concerning Kenneth Macharia, a gay rugby player, which was decided by the tribunal and not appealed—have established that Kenya is unsafe for members of the LGBTQ+ community. There was a more recent decision to the same effect by the Upper Tribunal in February this year.

In Libera, same-sex sexual activity is criminalised under Liberia’s penal code. In October 2020, the Home Office country background note accepted that there was state persecution of LGBTQ+ people in Malawi. The Justice Minister in Mauritius has stated that he will pursue the adoption of legislation to criminalise same-sex conduct. In Nigeria, the criminal code states that anybody found guilty of sodomy shall be liable to up to 5 years of penal servitude. There is a lot to be said about Rwanda; I am going to confine my comments for the moment, but I may need to supplement them later. It is sufficient for the present purposes to say that the current Foreign Office travel advice, as of May this year, is that homosexuality is not illegal in Rwanda but remains frowned upon by many. LGBTQ individuals can experience discrimination and abuse, including from local authorities. There are no specific anti-discrimination laws that protect LGBT individuals. Critically, a United States State Department country report on Rwanda, published in March this year, said that there is abuse and violence against LGBT people, with no adequate response by the Rwandan Government.

There are a number of independent reports by, for example, Rainbow Migration and Human Rights Watch, about the persecution of LGBTQ+ people in Rwanda. I emphasise that trans women are particularly exposed to abuse and persecution in Rwanda. That is well documented. Finally, in Sierra Leone there is criminalisation of any sexual act.

That deals with the first part of the amendment. It would be contrary to the convention, it would be wholly unjust and a travesty in every moral sense to remove members of the LGBTQ+ community to any of those countries I have mentioned.

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[Lord Stewart of Dirleton (Con)]

My Lords, in the face of that characteristically thoughtful and constructive suggestion, I am happy to assure the noble Lord that we will consider that between now and the point he refers to in relation to his forthcoming amendment.

On Amendment 37, tabled by the noble and learned Lord, Lord Etherton, I know that he has had the opportunity to discuss this amendment with the Attorney-General, my learned friend in the other place. Following that discussion, I will make one further point that I hope will reassure the noble and learned Lord. If the open expression of a person’s sexual orientation would prevent them living in a specified third country without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim as outlined in Clause 39, and the principles enunciated by the Supreme Court of the United Kingdom in the case of HJ (Iran) would be upheld.

[Lord Etherton (CB)]

I am grateful for what the Minister just said in relation to the ability of an openly gay, lesbian, transgender or bisexual person to live in a particular country. If, acting in that open way, they had a well-founded fear of persecution, as I understand it the Minister is saying that that would satisfy serious and irreversible harm. That is not apparent in the Bill, and to make that clear would itself require an amendment to Clause 38, which we will come to in due course.

But I am left, I am sorry to say, somewhat perplexed by the Minister’s analysis of the application of Article 7 proceedings against a particular country. In asking this question of the Minister, I can deal with the point from the noble Lord, Lord Jackson. There are two different situations under the Bill under which the issue of removal arises. The first, which is found at Clause 5(4), is where the person

“is a national of a country listed in section 80AA(1) of the Nationality, Immigration and Asylum Act 2002.”

That renders inadmissible certain asylum and human rights claims because they are deemed to be safe states.

[Lord Davies of Gower (Con)]

Could I just ask the noble and learned Lord to ask his question, please?

[Lord Etherton (CB)]

My first question is: does the Minister not agree that that is quite different from the case that the noble Lord, Lord Cashman, raised, where a person is not from a country listed in Section 80AA(1) but from another country? There is a separate provision for that in relation to removal to a Schedule 1 country. Does the Minster not agree that, although Clause 5(5) deals with the Section 80AA point, there is no equivalent to that exception in relation to a situation where somebody comes from a non-EU country that is a non-safe place and the consideration is now to move that person to a Schedule 1 country? What my amendment is dealing with is not the Section 80AA situation but the situation categorised by the noble Lord, Lord Cashman, where a person from a non-safe European state comes here and is threatened to be removed to a Schedule 1 country. All I said—and I am asking the Minister to acknowledge this—is that there should be a similar provision for that situation, for the exclusion of those countries that are facing proceedings under Article 7. That is it.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble and learned Lord, Lord Etherton, of course, for his intervention. It seems to me that the point he raises is one that calls for a degree of interpretative scrutiny that I do not think I am in a position to give at this stage from the Dispatch Box. I wonder if he would be content were I to undertake to write to him on the point that he raises.

[Lord Etherton (CB)]

I am grateful for the Minister writing, but at the moment it seems to me that the Minister has not really addressed my point about the need for such a provision and the exclusion of such countries. On that basis, I would be minded to press the amendment.

[Lord Stewart of Dirleton (Con)]

My Lords, I suspect that nothing I could say from the Dispatch Box will alter the fixed purpose of the noble and learned Lord in any event, but I do repeat my undertaking to write to him on the topic.

I was about to address the matter raised by the noble Lord, Lord Purvis of Tweed, in relation to secret agreements. The Government must retain, I submit, the ultimate discretion over the amount and detail of any information shared with Parliament, but the Government remain committed to principles of transparency and positive engagement. This is considered on a case-by-case basis, finding a balance proportionate to the level of public interest.

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[Lord Stewart of Dirleton (Con)]

The straightforward answer to the noble and learned Baroness’s question is that we are content to treat with countries that have not signed up to the refugee convention.

On Amendments 29 to 36, the Secretary of State may add a country to Schedule 1 by regulations only if satisfied that there is in general in that country or part of it no serious risk of persecution and will not in general contravene the United Kingdom’s obligations under the human rights convention. In so doing, the Secretary of State must have regard to information from any appropriate source, including member states and international organisations. The views expressed by the United Nations High Commissioner for Refugees on a particular country, among other sources of information, will therefore be considered before a country is added to Schedule 1.

In response to the amendments tabled by the noble Baroness, Lady Hamwee, our contention is that, when considering adding a country to the list in Schedule 1, we need to consider the position in the round. We do not live in a perfect world, so it is reasonable to assess a country on the basis that they are generally safe and to consider the possibility of adding to the list only a part of a country.

The noble and learned Lord, Lord Etherton, raised the matter of Rwanda. In relation to protections for LGBTQ+ persons in that country, the constitution of Rwanda includes a broad prohibition on discrimination. Rwanda does not criminalise or discriminate against sexual orientation in law, policy or practice.

[Lord Etherton (CB)]

My Lords, where does the Minister get the evidence to say that, in practice, as opposed to what is written in the constitution, there is no persecution? There are numerous independent reports and newspaper reports, as well as the Foreign Office’s own advice, to indicate that there is a real risk of persecution in Rwanda, especially for trans women.

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Moved by

[Lord Etherton]

37: After Clause 6, insert the following new Clause—
“Restrictions on removal destinations: LGBT persons(1) Where the Secretary of State is required by section 2(1) to make arrangements for the removal of a person from the United Kingdom—(a) trans men and women must not be removed to Brazil;(b) LGBT persons must not be removed to Gambia, Ghana, Jamaica, Kenya, Liberia, Malawi, Mauritius, Nigeria, Rwanda or Sierra Leone;(c) no person may be removed to a territory or country listed in Schedule 1 (Countries or territories to which a person may be removed) if the exceptional circumstances specified in section 5(5)(b) apply to that territory or country.(2) The Secretary of State may by regulations amend subsection (1) to—(a) add or remove a country or territory, or part of a country or territory;(b) reflect changes made to Schedule 1 by regulations made under section 6.”Member’s explanatory statement
This amendment would prevent LGBT people being moved to countries where they have a well-founded fear of persecution; or to a country which is subject to proceedings under Article 7 of the Treaty on European Union, as is currently the case with Hungary and Poland, and as is recognised as inappropriate by the existing Clause 5(5).

[Lord Etherton (CB)]

I thank all noble Lords who have spoken and the Minister for what he said. I am afraid that I am not persuaded that the Minister has fully grasped the difference between the two types of people I have mentioned—those who come from a safe place and those who do not come from one of these Section 80AA places and who could be removed to somewhere within Schedule 1. He has not explained why it is acceptable for women—one group—to be identified and excluded in relation to countries in Schedule 1 but for not another diverse group which faces persecution. So far as the evidence is concerned, I think he challenged only Rwanda on that. I have already explained that in the light of all the independent evidence I do not accept that Rwanda is not a hostile place for LGBTQ+ people, particularly for those who are trans. On the basis of that, I shall seek to test the opinion of the House.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

The Question will be decided by a deferred Division on Monday.