Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord German and Lord Howard of Lympne

Report stage
Wednesday 6th March 2024 Lords Chamber

[Lord Howard of Lympne (Con)]

I agree with the noble and learned Lord, Lord Hope—this is not the time to go back over the arguments we previously had. However, will the noble Lord and the noble Lord, Lord Alton, not accept that the one ground on which they cannot rely in support of their arguments is what Winston Churchill and the founding fathers of the convention said? They specifically considered whether the court should have the right to make an interim ruling, and they decided that it should not have that right.

[Lord German (LD)]

I deal with matters which are within my lifespan, I am afraid. It is certainly the case that the court—at present, the ECHR—operates on the basis of the decisions taken jointly by the range of countries within it. That is where we stand. We are being asked, as the noble Lord, Lord Deben, just said, to give permission to the Government to flout the legislation of which we have been a part, and the court of which we have been a part in making it.

Let us look very briefly at our record. The United Kingdom has always complied with Rule 39 interim measures and has publicly declared the need for other states to comply with them. In 2023, the court received 61 requests to make an emergency intervention against the United Kingdom, only one of which was granted as a genuinely necessary intervention. In 2021, it was the United Kingdom that urged Moscow to comply with one of the court’s Rule 39 orders, demanding the release of the now deceased jailed opposition leader Alexei Navalny—which was absolutely the right thing to do. Last year, another order helped to save the lives of two British fighters in Ukraine who had been taken captive by Russian forces. Those measures are important to us. We stand by them, and giving permission to the Government to ignore them runs counter to the principles under which we operate.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord German and Lord Howard of Lympne

Report stage
Monday 4th March 2024 Lords Chamber

[Lord German (LD)]

My Lords, we support all the amendments in this group. It is absolutely critical that domestic and international law is complied with. This should not be up for debate. It is who we are. It is what we stand for. If we seek to deviate from our domestic and international legal obligations, our role on the world stage and our ability to have influence globally is significantly diminished. We cannot shy away from the consequential impact this will have on other countries choosing to follow suit. As the United Nations Human Rights Council put it last Friday,

“international standards on the independence of the judiciary are closely linked to the rule of law and the separation of powers. ‘Provisions of the Rwanda Bill could undermine the principles of the separation of powers and the rule of law in the United Kingdom’”.

That is sufficient for us to support all these amendments.

[Lord Howard of Lympne (Con)]

My Lords, I begin by associating myself with the remarks of my noble friend Lord Hailsham about the late Lord Cormack. I cannot add anything to what my noble friend said, but it is entirely true that Lord Cormack is a great loss and we shall all miss him tremendously.

I am grateful to the noble Baroness, Lady Chakrabarti, and my noble friend for their references to my earlier intervention in these debates. I am not sure that the further interpretation that they place on my intervention is entirely justified or that I would entirely go along with it, but that is perhaps a matter for debate at a later stage.

The amendments in this group are all based on respect for the rule of law. A critical part of respect for the rule of law is the separation of powers, something much referred to in our earlier debates, and it is to that subject that I propose to address these remarks. As Anthony Speaight KC reminds us in his recent Politeia pamphlet, there is no such thing as the absolute separation of legislature, executive and judicial powers in our constitutional arrangements. Our Executive are rooted in our legislature and in any event, as Mr Speaight and others have pointed out, there are precedents for this legislation—for the proposition that Parliament can deem certain countries to be safe—including the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, passed under the Blair Government. The principle in that legislation was challenged in the case of Nasseri but was upheld by the Court of Appeal and the House of Lords. That, of course, is essentially what this Bill does: it deems Rwanda to be a safe country.

However, there is an even broader principle that is relevant here and is at the root of why this legislation is necessary. We have traditionally recognised the separation of powers between the Executive and the judiciary. That principle can be expressed in the proposition that decision-making is the responsibility of the Executive, but that the courts have the responsibility to review the lawfulness of those decisions.

That responsibility of the courts is what we know as judicial review. Its scope has been expanded greatly in recent years in ways which have not found universal approval but its principle is accepted as an important part of our constitutional arrangements. However, judicial review does not involve the courts substituting their own decisions for those of the Executive. It involves, in essence, an assessment of whether it was reasonable for the Executive to make the decision in question.