Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Kerr of Kinlochard and Lord Howard of Lympne

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

The noble Lord is well aware that the Strasbourg court has decided to pass various reforms and the anonymity of the judge is a thing of the past. I am not an expert on the Strasbourg court. However, I am a believer that if we maintain that we believe in the rule of law, we cannot pick and choose which bits of international law we comply with. That is a point I put forward at Second Reading and one I feel very strongly about. I do not see how we can, in good conscience, pass Clauses 5(2) and 5(3), which is why I added my name to Amendments 57 and 59 as moved by the noble Lord, Lord Scriven.

[Lord Howard of Lympne (Con)]

My Lords, the words that I am about to utter are largely not mine. They are the words of the noble and learned Lord, Lord Hoffmann, who I am delighted to see in his place, in the preface he wrote to a paper on Rule 39 written by Professor Richard Ekins, professor of law and constitutional government at Oxford, and published by Policy Exchange last year.

The noble and learned Lord, Lord Hoffmann said:

“A ruling of a court such as the European Court of Justice”—


though I think he probably meant, if noble Lords will forgive me, the European Court of Human Rights as his words certainly apply to it—

“is binding upon the parties only if the court had jurisdiction to make it. If it did, a party must comply and cannot complain that it was wrong. If the court did not have jurisdiction, the parties can ignore it.

The European Convention on Human Rights confers upon the Strasbourg Court jurisdiction in all matters ‘concerning the interpretation and application of the Convention’: article 32. It exercises this jurisdiction by the judgments of its Chambers, which, after submissions and argument by the parties, become final in accordance with articles 42 and 44. In this paper, Professor Ekins demonstrates that the Convention does not confer upon the Court, still less upon one of its judges, a power to make orders binding upon a Member State which require it to do or refrain from doing something on the ground that it might at a later stage be held to have been an infringement of the Convention. Not only is there nothing in the language of the Convention which expressly confers such a power but the usual aids to the construction of a treaty – the travaux preparatoires, the subsequent practice of the court – reflect a clear understanding that no such power exists.


What has happened is that one of the rules which the Court has itself made to regulate its own procedures has included a power to ‘bring to the attention of the Parties any interim measure the adoption of which seems desirable’ to avoid a violation of the Convention. The existence of a power to fire such a shot across the bows is practical and sensible. It does not involve the assertion of any jurisdiction to impose a legal obligation. But what has happened in the court’s recent jurisprudence is that this advisory power has been assumed to be a power to grant legally binding interlocutory relief. As Professor Ekins demonstrates, a court cannot in this way enlarge its jurisdiction by its own bootstraps. And if the Court had no jurisdiction to make such an order, Member States are free to ignore it”.


The noble Lord, Lord Scriven, referred to Article 32, which gives the court the power to interpret and apply the convention. It does not, however, give the court the power to add something to the convention which simply is not there. As Professor Ekins said in the concluding words of his paper:

“In rejecting the Strasbourg Court’s actions in excess of jurisdiction, the UK … would not be failing to honour its international legal obligations; it would be inviting the Court to honour its own legal obligations”.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Kerr of Kinlochard and Lord Howard of Lympne

Committee stage
Monday 12th February 2024 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, I must begin by apologising for the fact that I was abroad at the time of Second Reading and was therefore not in my place at that time. Much was made at Second Reading of the notion that the Bill in some way contravenes our constitutional principles, is an affront to the separation of powers, and infringes on the power of the judiciary. Those allegations are thoroughly misconceived but they are highly relevant to this amendment.

The plain fact is that we are a parliamentary democracy. That means that Parliament is sovereign and the reason why so many of us cherish that overarching principle is that we attach high importance to something called accountability. Accountability was not a word which featured very large in your Lordships’ debate at Second Reading. The courts are accountable to no one; they proudly proclaim that fact. Many of the bodies to which Parliament has in recent years outsourced some of its responsibilities have little, if any, accountability. But Parliament itself, or at least the other place—the House of Commons, in which I was privileged to serve for 27 years—is truly accountable. It is answerable to the British people at regular intervals and its Members can be summarily dismissed.

There are those who seem uncomfortable with our system and it is indeed true that there has been something of a whittling away at it in recent years. The courts have extended their power. Parliament itself has contributed to it by the outsourcing to which I referred. I often think it is a pity that those who praise these developments failed to come up with some suggested alternatives to parliamentary democracy, but there it is.

These amendments, if passed, would mark a new jump in this process. I ask those who support them to address the question of accountability. To whom is the United Nations High Commissioner for Refugees accountable? They might say to the General Assembly of the United Nations, perhaps. To whom is that body accountable? Neither the high commissioner nor the General Assembly have any responsibility for securing our borders. They have no responsibility for the safety of those who make the perilous channel crossing. They have no duty to take into account the resentment felt by so many against the sheer unfairness of illegal immigration and the way in which it gives preference not to the most deserving, but merely to those who can afford to pay the people smugglers.

Our elected Government and this Parliament bear those responsibilities, and the House of Commons is directly accountable to the electorate for the way in which those responsibilities are discharged. These amendments would prevent our Government and Parliament discharging those responsibilities. They seek to outsource those responsibilities to an unelected body with no accountability. The acceptance of these amendments would constitute nothing less than an abdication of the responsibilities of government. I note without surprise—

[Lord Kerr of Kinlochard (CB)]

I do not understand the argument that the noble Lord is making. As I understand the amendment in the name of the noble Baroness, Lady Chakrabarti, the responsibility laid on the UN High Commissioner for Refugees would be to advise the Secretary of State. I do not see how that makes him accountable; it would remain the Secretary of State, surely, who was accountable to this Parliament for the decisions that he decided to take in the light of the advice he received.

[Lord Howard of Lympne (Con)]

I fear not. The easiest way of replying to the noble Lord is to read from the Member’s explanatory statement on the amendment:

“The amendments require positive UNHCR advice on the safety of Rwanda to be laid before Parliament before claims for asylum in the UK may be processed in Rwanda”.


If there is no positive advice from the UNHCR, those claims cannot be processed in Rwanda. I think that will aid the noble Lord’s understanding of what I am saying.

[Lord Kerr of Kinlochard (CB)]

I was referring to the text of the amendment.

[Lord Howard of Lympne (Con)]

I think it is perfectly reasonable, if one wants to know the intention of the amendment, to look at the Member’s explanatory statement. That is, indeed, the purpose of the explanatory statement.

I note with interest, but not with surprise, that none of these amendments is signed by any member of the Opposition Front Bench. I am not surprised because no party that aspires to government could support the abdication of the responsibilities of government, which these amendments would achieve.

I will just say a word about Amendment 7 in the name of my noble friend Lord Hailsham and others. It asserts that the decision of the Supreme Court was a “finding of fact”. But it was not; it was a finding of opinion—the Supreme Court’s opinion that the removal of asylum seekers to Rwanda would expose them to the risk of refoulement. It is an opinion on which men of good faith and true can disagree. Indeed, it is an opinion on which distinguished judges disagreed.

The Divisional Court, one of whose two members was a Lord Justice of Appeal, came to the conclusion that what the Government were proposing was entirely lawful. The Court of Appeal, by majority, disagreed, but the then Lord Chief Justice dissented. In my view, when the Supreme Court reaches a conclusion on a matter of opinion, it is entirely legitimate and proper constitutionally for Parliament—the House of Commons is democratically accountable to the people, and the Supreme Court is not—to substitute its own opinion. That is what the Bill does, and that is why I support it.