Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Lilley and Lord Hope of Craighead

Report stage
Wednesday 6th March 2024 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, there are three amendments in this group, and they are all directed to the provisions of Clause 5 as to how interim measures of the European Court of Human Rights under Rule 39 of its rules are to be dealt with. None of these amendments is to be pressed to a Division, and so, following the example of the noble Baroness, I can be fairly brief.

My Amendment 36 seeks to replace the direction in Clause 5(3) that a court or tribunal of this country

“must not have regard to the interim measure when considering any application or appeal which relates to a decision to remove the person to … Rwanda”

with the provision that a court or tribunal “may” do so.

I have also added my name to Amendment 37, in the name of the noble Lord, Lord Coaker, which would require a Minister of the Crown to consult the Attorney-General before deciding whether the United Kingdom will comply with the interim measure. Amendment 38, in the name of the noble Baroness, Lady Chakrabarti, deals with the problem that Clause 5 creates more directly, in that it seeks to leave out the clause altogether.

Although we deal with the clause in different ways, we are united in our belief that Clause 5 provides for what will be a plain breach of international law. I do not think that I need to say much about that at this stage, because it was very fully debated in Committee. There are two different views, one way and the other, but I believe that, while that difference of view may remain, it can really be regarded as academic when one has regard to what happens in practice.

The noble and learned Lord, Lord Etherton, said in his contribution to our debate on 19 February that:

“International law has, therefore, reached a settled state of practice and agreement between member states and the Strasbourg court”.—[Official Report, 19/2/24; col. 468.]


That agreement is that interim measures are treated as binding. The United Kingdom has contributed to that settled state, not only by always complying with such measures until now but by calling on other states to do so when it suits our interests.

It is well recognised that custom, such as that in which this country has participated, is a source of international law. That has a long history; much of the civil law system, before the adoption of codes in the time of Napoleon, was built on custom and is still part of the law in certain respects in Jersey. The fact that states act in a consistent manner, as the United Kingdom has done and has called on others to do until now, can be seen as a good indication that member states are under an obligation to do so.

[Lord Lilley (Con)]

Will the noble and learned Lord comment on the decision of the French Government to ignore Rule 39 rulings and, in particular, to send someone back to Uzbekistan?

[Lord Hope of Craighead (CB)]

I was trying to explain that I am not getting engaged in that kind of debate. We have discussed the issue very fully in Committee —this is Report, and I have stated my position. I hope that the noble Lord, who has spoken now, will be content to accept that I can proceed and present my position.

[Lord Lilley (Con)]

But your position is that this is now settled and that member states all agree, when they patently do not.

[Lord Hope of Craighead (CB)]

My Lords, I am not going to respond. As I say, this is Report, and I am adopting a very particular position on settled practice, which the United Kingdom has participated in without exception, ever since the matter first was put into the rules. That being so, the idea that this country can simply unilaterally depart from that practice when it suits it is contrary to international law and is misconceived. My amendment, therefore, seeks to avoid that position and would allow the courts of this country to play a part in the procedure.

The Constitution Committee said in its report that Clause 5(3) raises “serious constitutional concerns”. I agree with that. As the committee put it:

“It is conceivable that a person may bring legal proceedings in the UK to compel a minister to adhere to an interim measure”.


Clause 5(3), as it stands, would prevent our courts giving effect to an interim measure in that way. The committee regarded that as a breach of the principle of the independence of the judiciary, which all Ministers of the Crown are under a duty, under Section 3 of the Constitutional Reform Act 2005, to uphold.