Safety of Rwanda (Asylum and Immigration) Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Murray of Blidworth (Con)]

The noble Baroness appears to suggest that, because the Bill disapplies Section 6, local authorities would be obliged to act or could act in a manner that was unlawful. She ignores the fact that, from the British accession to the European Convention on Human Rights until 1998, our domestic bodies were still deemed to be a part of the United Kingdom state, which obviously had an international obligation to comply with the rights convention. All the provision of Section 6 did was to impose a domestic law obligation. Its removal in this context does not have the effect that the noble Baroness seeks to persuade your Lordships it does.

[Baroness Lister of Burtersett (Lab)]

I am sorry, but I was only quoting—I know it was a majority vote and that the noble Lord did not vote for this bit—from the Joint Committee on Human Rights report, which still stands, even though it was a majority vote for that particular paragraph. Perhaps I will leave it to the lawyers, if I have not quite got the legal point.

The Constitution Committee comments that disapplication of HRA provisions is of “considerable constitutional concern”, and invites us to

“consider the potential consequences of undermining the universal application of human rights”.

The UNHCR expresses its deep concern at the exclusion of asylum seekers from some of the human rights protections, not only because it

“undermines the universality of human rights”

but because of its

“implications for the rule of law both domestically and internationally”,

setting

“an acutely troubling precedent”.

Universality means all humans, regardless of their immigration status. In the words of the Universal Declaration of Human Rights, universality principles stem from recognition of the

“inherent dignity and of the equal and inalienable rights of all members”—

all members—

“of the human family”.

As I said at Second Reading, breaching this principle speaks volumes as to how the Government see asylum seekers, for they are, in effect, being treated as less than human.

I make no apology for repeating these points from Second Reading, because even though a number of noble Lords raised their disquiet about the disapplication of the Human Rights Act, the Minister, the noble Lord, Lord Sharpe, did not address our concerns in his closing speech or his subsequent letter to Peers.

The closest the Minister came in the debate was perhaps to do so implicitly, when he dismissed in a peremptory manner the advice of the Northern Ireland Human Rights Commission, which was established under the Northern Ireland Act 1998 to

“review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights”.

When challenged by the noble Baroness, Lady O’Loan, who is no longer in her place, as to whether he had actually read the commission’s advice, he responded that

“the Government take a different view to those opinions”.—[Official Report, 29/1/24; col. 1099.]

The commission’s opinion, which is perhaps better described as formal advice, concludes that the Bill

“does not consider the Belfast (Good Friday) Agreement, and the integral role of both the Human Rights Act and ECHR in the complex fabric of the NI Peace Process and devolution”.

Indeed, it warns that it

“appears to be incompatible with obligations under the … Agreement”.

That position is echoed by the Human Rights Consortium in Northern Ireland. In its view, these proposals

“represent a violation of the Belfast/Good Friday Agreement by effectively limiting access to the Human Rights Act … for those seeking refuge in Northern Ireland. They also represent a violation of the Article 2 commitments of the Windsor Framework by undermining the commitment to the non-diminution of rights contained within the ‘Rights, Safeguards and Equality of Opportunity’ section of the Belfast/Good Friday Agreement—a section which explicitly guaranteed our access to the rights protected in the Human Rights Act”.

The JCHR saw these concerns as “serious” and, by a majority, reported that

“The Government has not adequately explained why it considers those concerns are not merited”.


It therefore asks for

“a full explanation of why it”—

the Government—

“considers the Bill to be consistent with the Windsor Framework and Good Friday Agreement before … . Report stage”.

I am not quite sure which Minister will be responding, but will the noble and learned Lord undertake to provide such an explanation? Can he please explain why we should put more faith in the Government’s interpretation of the implications for the Belfast/Good Friday agreement than those of both official and unofficial human rights watchdogs in Northern Ireland? That is all the more so given the Constitution Committee’s invitation to us

“to pay particular attention to the constitutional consequences … for the Good Friday Agreement”,

and the questions that it raises about the compatibility of Clause 3 with ECHR rights. I know that the question of Northern Ireland came up late on Monday, but it was from a rather different perspective.

Finally, more generally, can the Minister tell us what he thinks the universality of human rights actually means? What is the Government’s justification for breaching this fundamental tenet of human rights?

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I understand the point the noble Baroness is making; it is a very valid point. But what deduction should one draw? One of the tasks of the legal advisers in the Foreign Office is to lead on the development of international law. I do not argue that international law is set for all time, fossilised and ossified. Where are the proposals from the noble Baroness and her friends for the future development of international law? Why does she simply say that we must pull out of the bits we do not like? Where are the ideas for reforming and advancing? That is where the hem of history is going.

[Lord Murray of Blidworth (Con)]

My Lords, tempted though I am to engage with the noble Lord, Lord Kerr, on that very interesting philosophical question, that might be beyond the ambit of this particular amendment.

I will speak in particular to Amendment 33, which I oppose because it has no purpose. I remind the Committee that Section 4 of the Human Rights Act provides to the courts, at High Court level and above, a power to make a declaration of incompatibility, but the section itself is clear. Section 4(6) of that Act sets out in crystal clear terms:

“A declaration under this section (‘a declaration of incompatibility’) … does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and … is not binding on the parties to the proceedings in which it is made”.


In those circumstances, the noble Baroness, Lady Chakrabarti, said that this amendment is required to preserve some sort of responsibility belonging to this Parliament. That seems to be a misreading of Section 10 of the Human Rights Act, which provides a power to take remedial action. The important part in Section 10(2) says:

“If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility”.


It is therefore clear that, if there is a declaration of incompatibility, the default setting is that the law continues as passed by this Parliament. Therefore, there is no need for the amendment proposed by my noble friend Lord Kirkhope because it is clear that, if no remedial order is laid, the law remains as it is.

[Baroness Chakrabarti (Lab)]

My Lords—

[Lord Murray of Blidworth (Con)]

I will give way to the noble Baroness, Lady Chakrabarti, in a second. The very idea that, in some way, the argument would be better achieved by accelerating the process is simply mistaken, not least because Section 10 says that the declaration of incompatibility can take effect only following the conclusion of the final appeal and confirmation by the parties that that is so. That is likely to be a long time afterwards, given the nature of the types of cases that tend to go to appellate courts. So there is no need for Amendment 33. I give way.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Lord for giving way. I am intervening because he referred to something I said. Let me be clear: I totally agree with his analysis that Section 4 declarations of incompatibility have no binding legal effect; I think that I said so and emphasised that in my remarks. I referred to that as part of the exquisite constitutional compromise between parliamentary sovereignty, on the one hand, and the rule of the law, on the other, that is the Human Rights Act’s scheme.

I am delighted that the noble Lord, Lord Murray of Blidworth, knows the scheme so well and is seeking to honour it so well. In fact, when he reads from Sections 4 and 10, he treats them as sacrosanct—something that the Government do not generally do in relation to the Bill. If it is okay for the Government to disapply reams of the Human Rights Act for the purposes of sending some of the most vulnerable people in our territories to Rwanda, why should his noble friend—the noble Lord, Lord Kirkhope—not be able to improve on the Human Rights Act too, by accelerating the procedure for bringing a declaration to Parliament, rather than to the Government, for consideration?

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I find it a little odd for the noble Baroness to say that she is criticising the Government for disapplying various provisions of the Human Rights Act, yet criticising us for not, as it were, expressly disapplying Section 4. As we have heard, the reason for not disapplying Section 4 is clear; namely, it demonstrates that the Government are complying with their obligations on the international plane to provide a right of a remedy under Article 13 of the treaty.

[Lord Kirkhope of Harrogate (Con)]

I am sorry, but as I listened to the noble Lord, I was getting the impression that he was agreeing with my amendment to a large extent, except perhaps for my suggestions that we move the process on a bit more and improve the accountability with this House. Is that not the case? He said that my amendment serves no purpose; I think that it serves a very valuable and important purpose to give reassurance to this House that Parliament will have some say on, and be involved in, these processes; otherwise, I think that he is trying to minimise the impact of these matters and the way in which we can look at them.

[Lord Murray of Blidworth (Con)]

I am afraid that the amendment still has no purpose. The point is, as I hope I demonstrated to your Lordships’ Committee, that the decision as to whether and how to act on a declaration of incompatibility is clearly set out in the Human Rights Act, and it rests with a Minister of the Crown. This Parliament does not have a role other than to consider, under the procedure for a remedial order, whether a decision is taken to lay one. That is the law as it stands and as it should be, so this amendment is unnecessary.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group of amendments focuses on Clause 3 and demonstrates the threat to the domestic rule of law posed by the Bill. The Bill proposes ripping up not only our international obligations but our existing domestic legal structure, and it sets a dangerous precedent. It is clear that, when taken in combination with the serious limitations put on our own courts to decide what is and is not true, the Bill shows no respect for our domestic structures. I ask again: what are we getting in return? Do the Government really believe that delivering this scheme as it is currently proposed is worth it?

The noble Lord, Lord Scriven, moved the first amendment in this group, and he said, quite rightly, that the Bill usurps the role of the domestic courts and disapplies the Human Rights Act. He emphasised that the domestic courts are usurped within the Bill.

There has been a lot of discussion about Amendment 33 from the noble Lord, Lord Kirkhope, and there was some legal discussion just now between noble Lords about the best way that that amendment can prevent delay in considering making a remedial order. I will not comment further on that because it is above my pay grade as a magistrate rather than a lawyer who deals in this type of law.

More widely, there were very wide-ranging comments on the law, the theological principles underlying the Human Rights Act itself, and the principle of treating everybody equally, and an almost theological debate about whether this is a properly Conservative Bill. I am reluctant to trespass on theological or Conservative Party debates but, from the Opposition’s point of view, this group and the disapplication of a number of elements within the Human Rights Act go to the core of the objections to the Bill. I am sure we will come back to this in some form at a later stage. I look forward to the Minister’s response.