Safety of Rwanda (Asylum and Immigration) Bill

Lord Wolfson of Tredegar Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Purvis of Tweed (LD)]

I thank the noble Lord. I said that the court issued a press release; I did not say it made a judgment by press release. I think that is taking it a little too far.

The noble Lord states that the domestic judicial processes had been concluded, but the court said that they had not. All I am relaying to the Committee is the decision that was made. In my view it is reasonable, but I am not a lawyer, as the two noble Lords are. That was the reason the court made the decision, and the Government accepted it.

The point I wanted to make is that there were five other cases that day, which are not referred to as frequently. The requests for two interim measures were granted in order for the court to consider the cases in greater detail. That is correct, yes? Two were refused, which has not been mentioned so far, and one was withdrawn because the Home Office had changed policy in the meantime. Looking at the consideration of cases on that day, I do not think you would come to a conclusion—with three accepted, two refused and one withdrawn—that there was some deliberate blocking of the measure.

That prompted me to ask what the record of the UK has been on interim measures over the last years. There have been 178 applications overall, with most of them withdrawn, since 2021. We have fared fairly well against Germany with a total consideration of 264. That compares with 478 cases for France. We are doing quite well as far as cases against the UK go. If this is judicial blocking, and therefore the motives are to empower the courts to stop what the Government want to do, we need to look at the record of the decisions.

In 2021 five interim measures were granted against the UK and nine were refused. In 2022, five were granted against the UK and 12 were refused. In 2023—the most recent data—one interim measure was granted against the UK and 13 were refused. Far from this being judicial blocking—these cases are all to do with expulsions and relocations; this is not just in general terms—the UK’s system has worked really rather well, especially when compared with those of Germany and France. I would have thought that this is something that the Government would want to protect.

[Lord Wolfson of Tredegar (Con)]

My Lords, the ancient court known as the Sanhedrin, at its full complement, sat with 71 judges and had a rule that the most junior judge would give judgment first. I understand the reason was that, if the senior judges had spoken and the junior judge disagreed, that would be arrogant; if they agreed, it would be impudent. I find myself speaking after the noble and learned Lords, Lord Hoffmann and Lord Etherton, who disagreed. Therefore, whichever side of this argument I take, it seems I am going to be guilty of both. I ask forgiveness from each of them.

Like the noble Lord, Lord Anderson, I will spoil any questions as to which way I will go by saying that I respectfully agree with the noble and learned Lord, Lord Hoffmann, and the reasons he gave for supporting Professor Ekins’ paper. It was interesting that, in opening the debate, the noble Lord, Lord Scriven, said that for about 20 years the jurisprudence of the European Court of Human Rights has been clear. That is true, but it begs the question: since the European Court of Human Rights has been there for rather longer than 20 years, why did the noble Lord limit his position to 20 years? The answer is that if he had said “for 23 years” the jurisprudence would have said something completely different.

What is remarkable in this area is that this is not a new question. As I said at Second Reading, the question whether the European Court of Human Rights should have the jurisdiction—and this is a question of jurisdiction—to issue interim injunctions or interim measures was specifically debated by the contracting parties back in 1949, and it was deliberately not put into the text in 1950. It was a deliberate omission, not an oversight. The states considered whether the court should have the power and, no doubt for reasons similar to that set out by the noble and learned Lord, Lord Hoffmann, decided that it should not. That caused no problem at all.

Year after year, the court operated perfectly well without this power. It ruled, in terms, that it did not have this power in 1991 and, a decade later, in 2001, it upheld that ruling. As I said at Second Reading, you then have a judicial volte face in 2005, and the judgment from which the noble Lord, Lord Anderson, quoted. It is an open question, and it is interesting to consider why there was this volte-face by the European Court of Human Rights. I suggested that it might have been “jurisprudential envy”, because the International Court of Justice held that it had the power to issue interim injunctions. But, of course, that is different, because the statute of the ICJ, particularly the French version, provides a basis in the foundational document of that court for it to have that jurisdictional power.

With respect, question of whether the court has a power to issue these interim measures rests on very slender foundations. How is it now said that the court has the power, and we are bound by it? The primary argument put this evening has been based on Article 32, which provides that the court has jurisdiction to decide on the operation of the convention. What is interesting about that argument is that it is not used by the court itself, which, so far as I am aware, has not based its jurisprudence on the fact that Article 32 gives it the right to say, “This is what our jurisdiction is, and this is what we are doing”. It is outside commentators who have tried to find a proper basis—because Article 34, which the court does rely on, is not one—for the court’s jurisdiction. It is rather like the archer who scores a bull’s-eye not by firing the arrow at the target, but by firing it and then drawing the target around it.

One comes to the conclusion that people would like the court to have the jurisdiction and then say, “Ah, well, there must be a basis for it—what about Article 32?” But it is not an argument that the court itself uses, and it is also a false argument. Article 32 is about disputes about the convention and its operation; they are to be resolved by the court. It is not a grant of unlimited jurisdiction to the court to defy the express terms of the convention, including Article 46.1, which says that states are bound only by final judgments and therefore, by implication, nothing else—and by the history of the convention, which, as I have set out, is contrary to the court having these powers.

Article 32 is not the “get out of jail” card. This is not a new point. A similar point came before the Supreme Court in the case of Pham in 2015—what would happen if the European Court of Justice exceeded its jurisdictional powers? The noble and learned Lord, Lord Mance, dealt with that issue in paragraph 90. I do not need to go through the answer, but it certainly was not, “Well, the European Court of Justice has a power to interpret the treaties, and if it says it has the power to do this, that or the other, necessarily it does”, which would be the analogue to the Article 32 argument.

With the greatest of respect, Article 32 simply will not do as a basis on which to found the jurisprudence of the court. Of course, there are other points to be made as to the process of the court, and those have already been set out by the noble Lord, Lord Faulks. For those reasons, the point underlying many of the amendments in this group—that the court has jurisdiction to issue these interim measures and they are binding in international law—is wrong. Therefore, these amendments ought to be resisted.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 62 in the name of my noble friend Lord Coaker would ensure that a Minister of the Crown making a decision on an interim injunction consults the Attorney-General. This would ensure that, before making a decision on compliance with any interim measures issued by the ECHR for the purpose of blocking a person’s removal to Rwanda, the relevant Minister consults the Attorney-General, creating an additional safeguard. The noble Lord, Lord Wolfson, introduced his speech by saying he was not going to be arrogant or impudent, so I will adopt the same approach in my speech, which will be brief. I am not going to go into the legal arguments—many eminent lawyers have done that—but I am going to go into the politics and address what seems to me to be the question that has been left hanging in the air.

Yesterday morning, I watched the television and Mr Michael Tomlinson, the Illegal Migration Minister, was on our screens and he was absolutely explicit: he said that the flights will take off as soon as the Bill becomes an Act and the treaty comes into force. He said they will be going pretty much immediately. There was no question of the niceties of Rule 39 and all the other things we have been talking about; the subject simply did not come up. That is the politics of it: when the Bill becomes an Act, the treaty comes into force and those flights will be taking off.

My noble and learned friend Lord Falconer went into how the decision on Rule 39 might be made. The question he, and the noble Lord, Lord Faulks, asked, was, would it be subject to judicial review? To me, that is the question hanging in the air, and I look forward to the Minister’s answer, because as far as I can see it will be for the Attorney-General to make that decision, on the recommendation of the Prime Minister, and she will be doing that as a law officer. Today’s Daily Telegraph said—I do not know how it knows this—that when Mr Tomlinson was Solicitor-General, he had written legal advice saying that it would be illegal to go against Rule 39. I know it is private advice; nevertheless, that was in today’s Daily Telegraph.

So, there are two issues. First, the Illegal Migration Minister was explicit about the flights taking off on the conclusion of proceedings on the Bill. Secondly, what is the status of judicial review of any Rule 39 decision?