Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Hoffmann and Lord Bishop of Chichester

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Hoffmann (CB)]

The noble Lord, Lord Howard, did me the honour of quoting a passage which I had written in a foreword to the paper by Professor Ekins of St John’s College, Oxford, on the jurisdiction to grant interim injunctions. I adhere to what I said in that foreword, but I ought to go a bit further. I will not go into the reasons Professor Ekins gave. He looked into the terms of the treaty, the travaux préparatoires and what the court had been saying until relatively recently, and he came to the conclusion that it had simply invented the power to grant interim injunctions. Indeed, the court in Strasbourg does not even have the power to grant final injunctions. If it is determined that there has been a breach of the treaty, what is to be done about it is a matter for the Committee of Ministers and not for the court itself.

However, the power to grant an interim injunction is an important part of the armoury of any court. Anyone who has held judicial office will know that it usually involves not so much any question of law but a practical question of deciding what lawyers perhaps rather frivolously call the balance of convenience between facts, which means the power to balance the possibility of injustice in one direction or the other. That is to say, you say to yourself, “Well, what is the position? Assuming that he turns out to be right but I don’t stop this going ahead, what injustice will he have suffered; and likewise, if I do stop it, what injustice will have been suffered by the person who has been stopped?” You weigh these things against each other and come to a practical conclusion.

It seems to me that it was sensible for the original treaty not to have included a power to grant interim injunctions, because this is essentially a practical and local matter which ought to be considered by English courts—by the courts of this country—and particularly not by a court in Strasbourg, whose sole function is to say what the terms of the convention mean. What the convention means is what it says it means, and that is perfectly well understood. However, the power to grant injunctions seems really to be a question for local courts.

If we go ahead with Clause 5, we have the bizarre situation in which the courts are, by virtue of the other clauses we discussed earlier, prevented from themselves granting interim injunctions. For the reasons I have given, I wholly supported the amendments proposed earlier today by the noble Baroness, Lady Chakrabarti, and my noble and learned friend Lady Hale. They seem absolutely essential to enable our courts to give justice.

On the other hand, however, what we have is a provision by which the orders of a court which, in my view, does not have jurisdiction can nevertheless be enforced, provided that the Minister—like the Emperor at the Colosseum—puts his thumb up rather than his thumb down in relation to those particular orders. That seems an extremely strange situation. For that reason, I am unwilling to support the amendment that gives effect to the interim injunctions in our report, but I certainly supported the amendments that were moved earlier.

[The Lord Bishop of Chichester]

My Lords, I rise to speak briefly to Amendments 58, 60 and 61, to which my most reverend friend the Archbishop of Canterbury has put his name. I am very glad to be in support of the work of the noble Baroness, Lady Chakrabarti, on these amendments.

We come, of course, to the question of the place of the European Court of Human Rights. I am very grateful for the comments that have been made about that, particularly from the noble Lords, Lord Scriven and Lord Hannay, about it not being a foreign court but an international court. Earlier today, we heard from the noble and learned Baroness, Lady Hale, about the relationship that we have with the European Court of Human Rights—a relationship where we learn from the wisdom of international friends; where we bring our own wisdom and shape each other’s thinking and practice. It is a relationship of mutual respect for justice and for each other. These seem to me to be very important qualities as we look at the international situation of a very divided world today.

My most reverend friend the Archbishop of Canterbury referred in his speech at Second Reading to the danger of a “pick and choose” approach to international law, which threatens to undermine our global standing and the principle of universality. I agree. It is profoundly disturbing when, on the face of this Bill, we do not find assurance of compliance with European and UN approaches to human rights or an adequate mechanism for addressing our own processes of law and the risk of serious harm. This is about principles, values and rules to which we should aspire as the foundation of human dignity in an enlightened and humane society.

In the scriptures honoured by Jewish and Christian people alike, the prophet Isaiah speaks of one who will,

“proclaim justice to the nations”.

With this Bill, do we run the risk that countries less wedded to the rule of law and justice, seeing us as an example to follow, will do so for all the wrong and tragic reasons?