Safety of Rwanda (Asylum and Immigration) Bill

John Hayes Excerpts

Committee of the whole House
Wednesday 17th January 2024 Commons Chamber

[Robert Jenrick]

It seems as if we are having a dialogue of the deaf, because that is not what I said at all. I said that the debate about the European convention is for another day, but the hon. Gentleman is saying that the decision of the Strasbourg Court in 2005 to confer upon itself, without seeking the consent of any of the signatories to the convention, the ability to impose binding interim injunctions on other countries is the right way forward and, indeed, that those injunctions should be able to be made at the eleventh hour, in the middle of the night, without giving reasons, without asking for our arguments and without even naming the judge behind the ruling. That poses very serious rule-of-law questions and is a reason why conventions such as the ECHR are increasingly out of step.

[Sir John Hayes (South Holland and The Deepings) (Con)]

My right hon. Friend is, of course, right that it contradicts the long-established custom and practice that was the accepted basis for the rule of law in this country. He cites Lord Sumption and Lord Woolf, but he might also have cited the constitutionalist A. V. Dicey who, long ago, supported by Lord Denning and many others after, established that the relationship between the rule of law and this place is that a polity can make and change laws because it has the legitimacy to do so, conferred on it by the people. Frankly, that means this House is supreme. That in no way underestimates the significance of international agreements and treaties, but it affirms the significance and sovereignty of this House.

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[Several hon. Members rose—]

[Sir John Hayes]

The shadow Minister makes a good point about co-operation. He is right that the only way to tackle the problem is through a suite of measures under an umbrella policy but, as my hon. Friend the Member for Ipswich (Tom Hunt) just described, an important part of that is deterrence. The brand and the marketing message of the criminal gangs is that people will get to Britain and never leave. Sadly, that has too often been the case, has it not?

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Few in this House are as familiar as I am with the vagaries and complexities of international law. If international law means anything, surely it must mean that it does not lie in the hands of any individual nation state—even this one—to determine its own compliance with it. Were it otherwise, international law would not really be international, and it would certainly serve no purpose in containing bad behaviour, as we sometimes ask it to do.

[Sir John Hayes]

I work closely with my right hon. and learned Friend in a number of ways, as he knows, and I am well aware that he is a former Attorney General. If he were right that it is not for the Government or this House to determine whether measures are compliant, why on earth would they seek and get the Attorney General’s advice on just that?

[Sir Jeremy Wright]

My right hon. Friend knows that the Attorney General is consulted on a variety of different legal questions, both domestic and international. He would not expect me to disclose any of the advice I have previously given, but I can tell him that the Attorney General does give advice on whether the Government’s actions may or may not be in compliance with international law, but neither the Attorney General, nor, I think the Government, expects to be the ultimate arbiter of that question. The advice is given as to whether it is likely that that action would be in compliance with the law. I will come in a moment to what I think the Bill and the Government can properly do in relation to international law responsibilities, but it seems to me that what they cannot properly do is set themselves up as judge in their own cause on questions of international law. This House would be wrong to pass a Bill that suggested that they could. That is really where my amendments are focused.

As I say, there is a good practical reason why we should be nervous about this: because we do sometimes rely on international law to discharge our own policy intents and purposes. Not more than 48 hours ago in this place, we were doing exactly that. We were saying that it is important to criticise the actions of the Houthis in the Red sea because they contravene principles of international law. We were saying too that we justify our own response to that because it is in accordance with the principles of international law, and quite right, too. We would not have accepted the Houthis’ unilateral declaration that they were in compliance with international law when they did what they did, nor should we have, and we would not of course accept a Russian legislative Act to say that the invasion of Ukraine by Russia was in compliance with Russia’s international law responsibilities.

Let me make it clear that I am not, of course, suggesting that what the Government have in mind here is in any way comparable to those two examples, but it seems that the point here is that to arrogate to oneself the right to declare one’s own compliance with international law runs the risk of, first, other states finding comfort in our example and, secondly, undermining our own messages in other situations. That makes this not just bad law, but bad foreign policy.

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[Joanna Cherry]

I certainly will not be supporting the other notwithstanding clauses in the Bill, but I felt that it was perhaps time that we had one that benefited Scotland for a change.

My amendments are designed to protect Scotland’s courts and constitutional tradition. They are there to ensure that asylum seekers in Scotland might still enjoy the protection of the courts from the infringement of their fundamental rights. That is what people in Scotland want, and it has been expressed repeatedly through the Scottish Parliament. I am, of course, a Scottish MP and a member of the Scottish Bar, and I am here to do what I can to protect Scotland and its legal system from the extraordinary attack on human rights and the rule of law that this Bill constitutes.

However, I am not a Scottish exceptionalist. I recognise that—as reflected in the House of Commons Library’s excellent legal briefing on the Bill, and indeed in the speech that preceded mine, by the right hon. and learned Member for Kenilworth and Southam—concerns about the impact of the Bill on the rule of law and the constitution are shared by many in England, including many lawyers. For every lawyer cited by Conservative Members in favour of the Bill and the draconian amendments to it, they will find two lawyers who disagree.

The Library briefing, which is an excellent summary of the different legal views on the Bill, concludes:

“Tension between the sovereignty of Parliament to legislate, and the role of the courts in enforcing the rule of law principle that executive bodies must exercise their powers within their statutory limits, may be tempered by restraint on both sides. If either the courts or Parliament ceased to exercise such restraint, significant constitutional uncertainty could result.”

I believe that if we pass the Bill, this Parliament will have ceased to exercise the restraint referred to there—it would be a major departure from such restraint. I predict that, if the Bill passes, we will see what might be an unprecedented constitutional challenge to an Act of the British Parliament.

[Sir John Hayes]

The hon. and learned Lady is making a good point about the checks and balances that prevent arbitrary power, and she is right that that is central to our constitutional settlement, but this is not the exercise of arbitrary power, because the Bill, and the amendments to it, are quite specific about their provisions. For example, in the amendments tabled by my right hon. Friend the Member for Newark (Robert Jenrick), our separation from the international obligations that I know she holds so dear is very specific to this particular legislation. That is not arbitrary—it is anything but.

[Joanna Cherry]

The Bill seeks to carve out a group of people coming to our country, or who are in our country, from the protections that the rest of us enjoy. History shows us that that sort of legislation can put a state on a pretty slippery slope. That brings me to my arguments in relation to clauses 3 and 5 stand part.

The Joint Committee on Human Rights has not yet had the chance to complete legislative scrutiny of the Bill given the speed with which it has passed through the House, so we have not as a Committee reached a concluded view on the Bill. However, before Christmas and before Second Reading, a Chair’s briefing paper referring to the legal advice that the Committee had received was published, and it is extensively referred to in the excellent legal commentary published by the House of Commons Library.

The briefing says, inter alia, that the disapplication of the Human Rights Act 1998 in clause 3 is very significant. As I indicated a moment ago in my answer to the right hon. Member for South Holland and The Deepings (Sir John Hayes), human rights are meant to offer a fundamental level of protection for every person on the basis of their humanity alone. As our Committee has noted in a previous report, if those protections are disapplied when they cause problems for a policy goal, they lose their fundamental and universal character. Arguably, that is especially the case when they are disapplied in respect of a particular group. In this case, fundamental human rights are being disapplied in respect of migrants who come to the United Kingdom without prior permission.

Bills that disapply parts of the Human Rights Act are not unprecedented under this Government, I am sad to say. Both the Illegal Migration Act and the Victims and Prisoners Bill have sought to disapply section 3 of the Human Rights Act in respect of certain legislation. However, this Bill seeks to disapply section 6 of that Act—the obligation on public authorities to act compatibly with human rights—which has never before been attempted, even by this Government, and represents a significant inroad into human rights protections. If we pass the Bill with clause 3 in it, it will effectively mean that this Parliament is authorising public authorities to breach human rights. That is an awful long way from what this Parliament intended when it passed the Human Rights Act, and what the United Kingdom intended when it signed up to the convention.

As we heard at some length yesterday, as a result of parliamentary sovereignty, if we pass the Bill, breaching human rights would be in accordance with our domestic law. However, it would still violate the UK’s obligations under the convention, because we cannot unilaterally change what the convention says. Also, as the Bingham Centre for the Rule of Law has noted in its briefing on the Bill, if we disapply the Human Rights Act in the manner proposed, we are also breaching article 13 of the convention, which entitles people to an effective remedy.

I am afraid to say that the amendments to clause 3 tabled by the right hon. Member for Newark, who is no longer in his place, would make the situation even worse. His amendments 11 and 12 appear to extend the disapplication of the Human Rights Act to anything done under the Illegal Migration Act that relates to the removal of a person to Rwanda. That could potentially mean that the detention of people awaiting removal to Rwanda and their treatment prior to their removal would not be protected under the Human Rights Act. Is that what this Parliament really wants to legislate for?

Additionally, the right hon. Member for Newark wants to extend clause 3 to disapply section 4 of the Human Rights Act. As it stands, that clause does not disapply section 4; if the clause remains as it is when the Bill becomes law, it would be open to a court in future to declare that it is not compatible with the convention. That would be through a declaration only: it would not affect the ongoing function of the Bill, or allow removals to Rwanda to be prevented or delayed, but this Parliament and the Government would have to decide whether any changes to the law should be made. If we amend the Bill to disapply section 4 of the Human Rights Act, again, that would be something that has never been done before, and would further restrict the jurisdiction of our courts in saying to the Government and the public what their view is on the law’s compatibility with human rights.

Finally, I also believe that clause 5 should not stand part of the Bill. We have heard a lot today about Conservative Members’ concern about interim measures issued by the European Court of Human Rights. The reality is that, no matter what this legislation ends up saying, it can only affect domestic law. In respect of the ECHR in particular, the UK will remain bound by the convention as a matter of international law. Indeed, even if this Government—God forbid—were to exercise the nuclear option of withdrawing us from the convention, thereby putting us in bed with Russia and Belarus, we would remain bound for a further six months after withdrawal takes place. I hope they will bear that in mind.

At the moment, clause 5 says that only a Minister can decide whether to comply with interim measures, and that the domestic courts should ignore them. It remains to be seen what a Minister would do, but we all know that the Prime Minister has said repeatedly that he would not let a foreign court—to use his words—prevent flights taking off, which indicates that interim measures may be ignored. As I said earlier, in my intervention on the right hon. Member for Newark, interim measures are made under rule 39 of the Court’s rules of procedure. They do not form part of the text of the convention ratified by the UK, but when we ratified that convention, we signed up to the idea that the European Court of Human Rights is the body that determines its meaning, and since the 2005 case that the right hon. Member mentioned, it has held consistently that failing to comply with interim measures amounts to a breach of article 34.

Interim measures are fundamental to any court—they are issued to protect the position of an individual while their legal rights are determined. All this fuss about people in their pyjamas in the middle of the night is very silly. Judges in the United Kingdom, both in the English jurisdiction and in the Scottish jurisdiction, are regularly got out of their bed in the middle of the night to issue interim injunctions in England and interim interdicts in Scotland. It is a standard part of any legal system, and many of the concerns that Conservative Members have expressed about those interim measures have now been addressed by the Court in the reforms it is proposing.

Any decision of a Minister not to comply with an interim measure would be inconsistent with our obligations under the ECHR. That means that if we let clause 5 stand part of the Bill, we will expressly authorise British Government Ministers to act in breach of international law. That is the reality, and I note that according to The Times, that is the advice that has reportedly been given to the Government by the Attorney General and by the Minister, the hon. and learned Member for Mid Dorset and North Poole (Michael Tomlinson), when he was Solicitor General. That does not surprise me at all; it should not surprise anyone, because any legal undergraduate would be able to tell them that. As such, in so far as amendments 23 to 25 state that interim measures are not binding, that is inaccurate as a matter of law, and we must understand that they would put the UK directly in conflict with our international legal obligations.

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[Sir Robert Neill]

My right hon. and learned Friend is entirely correct, and he and I would probably have very happily argued the UK’s case in Strasbourg on those grounds, so let us be realistic about what we are fighting against. With respect, a bit of an Aunt Sally has been set up because steps are already being taken to deal with the objectionable matters relating to rule 39s, but the principle of them is not itself objectionable.

Secondly, with respect, the characterisation of a “foreign court” is not helpful in these circumstances, because it implies something alien, which it is not the case for international law as a concept or for the Court itself. The fact that it happens to meet in a different place from the UK is inevitable because it has to meet somewhere. We should bear in mind that not only was the UK one of the driving powers behind the creation of the convention in the first place, behind the Court itself and behind much of the jurisprudence of the Court, but the UK does actually have shared ownership of the Court, along with all the other member states.

That is demonstrated not just in the treaty, but in practical ways. For example, the British members of the Parliamentary Assembly of the Council of Europe—Members of this House and the other place—have a role in the appointment of the judges of the Court. My right hon. Friend the Member for Gainsborough (Sir Edward Leigh) and I served at one time on the sub-committee of the Assembly that dealt with that process, and I like to think that we did so diligently, so there is involvement in that process. A British judge always sits on the Court and is a member of the Court. Judge Tim Eicke, the current judge, is a very distinguished international lawyer, and we are very lucky to have him. Two of the recent registrars of the Court, who run its administration, have been British lawyers, and British lawyers appear regularly in cases before the Court.

This is not an alien body; it is a Court of which we have joint ownership. It is our Court, along with that of all the other member states of the convention, and it is wrong to mischaracterise it as something alien. Certainly, in all international matters, as my right hon. and learned Friend the Member for Kenilworth and Southam said, it operates on a different plane, but the tone of comments about its alienness is, with respect, both inaccurate and somewhat offensive. It is also unnecessary for the purposes of this Bill anyway, and that is the point I want to come on to in relation to rule 39.

The amendments tabled by my right hon. Friend the Member for Newark are otiose. They are unnecessary and, frankly, would make a difficult situation worse. As a matter of law, an interim measure under rule 39 is an indication made to the Government of the member state. It is not made to the courts of the member state; it is conveyed to the Government of the member state concerned. Therefore, it is for the members of the Government of the member state—the Ministers—to decide what to do about it.

I personally take the view that we should be very loth indeed to ignore the findings of the Court on an interim matter. As the hon. and learned Member for Edinburgh South West rightly said, it runs the risk of putting us in breach of our international law obligation in that regard. However, the truth is that it is a political decision that the Ministers can take. So what the Bill in its current formulation states is actually no more than a statement of the law as it stands, and we probably do not need clause 5 in the Bill. I am not going to die in a ditch over that, because it is simply stating what the law is already, but, equally, there is absolutely no need for the amendments from my right hon. Friend the Member for Newark to put bells and whistles on otioseness, if I can put it that way.

[Sir John Hayes]

I am loth to interrupt my hon. Friend as he is describing not so much the separation of powers as the desiccation of power. However, on the specific point he made about his reticence or reluctance not to abide by the advice of the Court—he said Ministers could do that, but he would not—would he on that basis not have done what the noble Lord Cameron did as Prime Minister when he resisted the overtures from the Court to give prisoners votes?

[Sir Robert Neill]

I would make two points about that. In fact, I supported the noble Lord Cameron in that regard because it was a political decision. It is also worth looking at the practical politics. Although we were for a period of time at variance with the Court, no harm was done to the polity of the United Kingdom in that regard. No harm was done to the interests of the United Kingdom and no terrible international consequence for us flowed from it. I think the Court got it wrong on that occasion, and one of the problems is that there is no appeal system in the Strasbourg Court, so we have to wait until some future decision goes a different way. I think many of us take the view that, in reality, the Court as currently constituted in Strasbourg—it is perhaps less activist, if I may say so, than its predecessors—might well have found differently in the prisoner voting case. However, the fact was that UK Ministers took the decision, and they did what was right in the UK, which was supported by those in all parts of the House, and no harm was done. So the idea that some terrible consequence will flow for the UK because of the ability to seek rule 39 interim measures is just misplaced.

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[Suella Braverman]

I will tell the hon. Gentleman where we have a problem with a foreign court. In that scenario, when English courts had refused injunctions by the migrants to get off the flight, the foreign court overrode English judges, overrode the will of the Government and overrode the will of the British people to control our borders and stop the boats. That is the problem with a foreign court, and that is the problem that we are trying to fix.

When that flight was grounded in June 2022, it was because of rule 39 interim injunctions. Those orders are not contained in the European convention on human rights, and they are not a product or a content of the original convention. They are a creation of the Strasbourg court and the Strasbourg judges, and they have evolved over time pursuant to the living instrument doctrine that is espoused by the Strasbourg court and that has inflated and expanded its remit over decades, beyond anything conceived by the original drafters or any intention set out in the original versions of the European convention.

I believe that no one here disagrees with the aspirations and the content of the European convention on human rights. I do not disagree with anything set out in that document, which contains noble, vital and fundamental human rights that we are all proud to defend fervently and fiercely: against oppressive regimes; against authoritarianism; against genocide; against mass killings; and against some of the worst atrocities history has seen. That is the context of the European convention’s genesis.

To respond to the hon. Member for Walthamstow, the problem we are dealing with is the Court. It is the Court that has become politicised. It is the Court that has become interventionist. It is the Court that does not follow the traditional common-law rules of precedent to which the English courts subscribe. The Strasbourg Court and its judges have distorted the original European convention on human rights into something that bears no reflection to its original intention.

That has been exacerbated by Labour’s Human Rights Act. In recent decades we have seen a rights culture and litigiousness around immigration, asylum and many other areas. Public sector decision making has been stymied, thwarted and undermined by a heavily resourced, activist legal industry that is undermining Government decision making, stymying policy making and undermining law enforcement and public safety.

I have a few examples. Take the case of OO, a Nigerian national who was sentenced in 2016 to four years in prison for offences including possession of crack cocaine and heroin with intent to supply. He pleaded guilty to battery and assault in 2017. Those are serious offences. In 2020, the first-tier tribunal allowed his appeal against deportation on the grounds that he had very significant obstacles to integration in Nigeria that outweighed the public interest in his deportation. Despite the seriousness of his offending, and despite the risk he posed to the public, his article 8 rights, interpreted in a vastly elastic way—a distorted, illogical way—operated to stop him being deported.

Article 3 was invoked in the case of D v. UK. We can all agree with article 3, which prohibits torture and inhumane or degrading treatment but, in this case of a non-UK national who was convicted of dealing drugs, the Strasbourg court held that the effect of discontinuing his medical treatment, available in the UK but not in his destination country, amounted to inhumane or degrading treatment under article 3. Why should a convicted drug dealer be entitled to public services here and not be deported?

[Sir John Hayes]

Surely on that basis almost any deportation could be blocked, for few countries in the world can match the standard of our NHS, and once that precedent has been set every person will claim that they require treatment for the most minor of ailments.

[Suella Braverman]

I am afraid that my right hon. Friend is absolutely right to highlight that point. Article 3, and a stretched interpretation of it originating in the jurisprudence of the Strasbourg Court, by politicised judges pursuing a political agenda, has led to a perception that here in the UK we have an international health service, not a national health service.

Lastly, let us consider the case of AM (Zimbabwe) in 2022, thanks to which it has now become law that states that want to remove someone have to prove that medical facilities available to the deportee in their home country would remove any real risk that their lifespan would be shortened by their removal from NHS facilities. That is exactly the point that my right hon. Friend has made: the UK Government now have a duty to establish that foreign health services are sufficient before we deport people who may well pose a risk to public safety and, in some cases, national security in this country.

Those are the overall problems with the Court—not the convention, but the Court. Rule 39 is another symptom of the problem that we have with the Court and the judges, which is why the amendment is vital. It will make it clear that rule 39 orders are not binding and that it will be for the UK Government to make the decision on deportation, not a foreign court—an unidentified judge somewhere far away who does not have the same ambition or aspiration as this UK Government to stop the boats. That is why I will support the amendment enthusiastically today.

Let me conclude by saying that this is our last chance to fix this problem. We have stretched the patience of the British people. This comes down to a simple but profound question: who governs Britain? Is it us, the democratically elected representatives who have been directly sent here on behalf of the British people, on a clear mandate and with a clear instruction of what to do, and whose laws are passed by a clear and transparent majority, to which we can all be held to account at the ballot box? Or is it an opaque forum many miles away, in a different country, that is distant, outsourced, foreign and does not share our values—

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[Sir John Hayes]

The debate on the Government side of the Chamber, as my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) said, is not on a difference in aims or ends; it is about the means to those ends. Government Members want to travel to the same destination; what we are debating is the journey to get there. So let us not exaggerate the differences between us. I know that the Minister shares that view. We have engaged with him and hope to continue to do so, even at this late stage, to improve the Bill and realise the delivery of those intentions—the journey to that end.

We have to do so, because mass migration is perhaps the biggest existential crisis facing this country. I do not say that blithely—unfortunately, people say things in this Chamber as though they were definitive and use all kinds of superlatives; indeed, the hon. Member for Walthamstow (Stella Creasy) has made a brand out of that, as we heard earlier. That view would be shared by a large number of my constituents and, as my hon. Friend the Member for East Worthing and Shoreham also said, it is now widely shared in other countries. The Bill and the amendments to it therefore affect our constituents directly and personally, contrary to the contribution of the hon. Member for Westmorland and Lonsdale (Tim Farron), who claimed that it is a distraction. Far from it; we cannot absorb into this country the number of people who are coming as a consequence of both legal and illegal migration in a short period of time without a devastating effect on public services, a displacement effect on investment in the skills of our own people, a displacement effect on the need to reform welfare and, beyond all that, the ability to integrate those incoming people into cohesive societies in which we all share a common sense of belonging.

In dealing with the amendments, we need to be realistic about the scale of the problem and the British public’s view of that problem. They know that the vast majority of people arriving here on small boats—about 75%—are men under 40. By the way, about nine out of 10 arriving are male, which is far from the picture painted by some of the critics of the Government and our policy. They know, too, that large numbers of those people are not genuine asylum seekers but economic migrants. That truth is so evident to the electors of this country that they look with bemusement at this place where it is not widely recognised. We hear speech after speech—from Opposition Members in particular, I must say—that seems to be either ignorant of those facts or unwilling to face them.

[Alison Thewliss]

rose—

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[Sir John Hayes]

I do not know whether the hon. Lady is the first or the second, but I happily give way to her.

[Alison Thewliss]

Perhaps the right hon. Member would like to correct the record. Most people who come on small boats are in fact refugees, because the Home Office grants them that status. They are not economic migrants as they do not get economic migrant status; they get refugee status.

[Sir John Hayes]

What we certainly know about them all is that before they got here they have travelled through safe countries—more than one in many cases—and failed to claim asylum. The hon. Lady is right that we are probably too lax in how we process claims. Certainly, we offer asylum to more applicants than France. On average, we grant a higher proportion of asylum claims than most European countries.

We know, too, that the failure to remove those people costs the British taxpayer an immense amount of money. When I looked at the figures, I was staggered. The cost of asylum is now £3.97 billion. It is extraordinary that a single matter should cost so much. The need for the Bill is justified alone on the basis that we can no longer afford to deal with the current scale of illegal migration. We simply cannot afford for it to continue, as the British sense of fair play has been tested to its limits. The public see that, and they are increasingly disillusioned by the apparent inability and unwillingness of the political elite in this country—we are the political elite, like it or not—to accept the facts.

Progress has been made in clearing the backlog, largely as a result of the efforts of my right hon. Friend the Member for Newark (Robert Jenrick) and my right hon. and learned Friend the Member for Fareham (Suella Braverman). During their stewardship of the Home Office, they focused resources on processing claims more quickly and had considerable success in doing so. But the problem is that as fast as we process people, more arrive.

Until we deal with the root of the problem, we can never really tackle the cost I described nor the disillusion felt by our constituents. That is why the Prime Minister pledged to stop the boats. In order to do so, we need an Act that is as effective as possible. The amendments in the name of my right hon. Friend the Member for Newark, which I strongly support, would ensure just that. Amendments 11 to 18 deal in particular with the Human Rights Act 1998. Taken together, they would fully disapply the Act from the Bill and the Illegal Migration Act 2023, particularly in relation to removals to Rwanda.

A lot of nonsense was spoken earlier about rights; indeed, a lot of nonsense prevails in this House about rights. Rights are fundamentally important. We believe in the essential rights that characterise our country: the right to a fair trial; the right to go about one’s business freely and unimpaired; the right not to be arrested without cause; the right to vote in free and fair elections. Those are important parts of what it is to be British, but they do not spring from the ether. They are not a given—it is a liberal myth that rights are natural. Rights are the product of decent Governments in decent places doing the right thing. They are special because we have chosen them, not because they were given to us by some ethereal source. The hon. Member for Westmorland and Lonsdale (Tim Farron), whom I like and respect, will know, because he knows scripture even better than me, that rights do not get a mention in the ten commandments or the Sermon on the Mount. Perhaps he can find a part in either of those to contradict me.

[Tim Farron]

I did not mean to intervene, but the right hon. Gentleman has tempted me. This is not a liberal thing, as many Conservatives ought to support it. I do not believe there is any case for human rights having any standing whatsoever without some form of metaphysical. He is quite right to say that the Bible does not talk about rights; it talks about individual duties. If I have duties to him, he therefore has rights. I do not believe that rights are made up by human beings; they are literally God-given.

[Sir John Hayes]

My opinion of the hon. Gentleman has soared to an even greater height. I knew he was the best of liberals—that is not a great thing to be, by the way, but it is better than nothing—and he has confirmed it in that pithy intervention.

The crucial point about amendments 11 to 18 is that they rule out using sections 4 and 7 of the Human Rights Act. We know from experience that the good intentions of Governments, backed up by legislation passed in this place, have been routinely frustrated by what my right hon. and learned Friend the Member for Fareham rightly described as activist lawyers abroad, and, I would add, dodgy lawyers in this country and deluded pressure groups; it is not just malevolent foreigners, but malevolent people here, too. I say to the Minister that the only way we will effect the policy is if we do not allow that kind of gaming of our system by those who come here. I entirely accept that there are among them people whom we should of course welcome. Of course there are people fearing persecution, and of course we should be proud of the fact that we provide a safe haven for people in desperate need—we always have and we always will—but people who are legitimate applicants for asylum are being effectively compromised by a system that does not adequately distinguish them from the very people I have described as gaming our far too lax system.

The Bill is an opportunity to put that right, but only if it is fit for purpose. The amendments are not designed to frustrate the Minister’s intentions or to allow the Prime Minister’s pledge to fail. On the contrary, they are designed to make his pledge real: to allow it to be effected. For if the amendments are not accepted by the Government, I fear the Bill will do just that: fail and disappoint the very people to whom we made that pledge to stop the boats.

Section 4 of the Human Rights Act deals with declarations of incompatibility and section 10, as I described it, deals with remedial measures. As it stands, they are not excluded by the Bill. That means that unamended, the Bill will allow a court to issue a declaration of incompatibility with the ECHR, which would effectively kill the Rwanda scheme. The Minister must know that that is a possibility at least—we would argue a probability —but even if it is a possibility, why would he not want to exclude that possibility?

[Robert Jenrick]

Perhaps I could just elaborate on the point my right hon. Friend is making. What is most likely to happen were the amendment not to be accepted by this place is that on Royal Assent someone will bring a case seeking a declaration of incompatibility for the Bill. That will then go through the courts. If the Supreme Court were then to rule, ultimately, that the Bill was incompatible with the Human Rights Act, it would then be up to this House and Parliament to determine what to do. But if the Prime Minister is correct that the Government of Rwanda would not wish to be a party to any scheme that was in breach of international law, the scheme would be dead.

[Sir John Hayes]

My right hon. Friend explains exactly the point I was making. The intentions of the Bill are put at risk by the failure to close the loophole. It is just that: an opportunity for people to exploit, in exactly the way he says, the absence of provisions that would strengthen, or in the Prime Minister’s word tighten, the Bill sufficiently to avoid such an eventuality.

[Miss Sarah Dines (Derbyshire Dales) (Con)]

All the British people expect is real fairness and hearings with real judges. We have been speaking about the European Court of Human Rights. Is it not the case that many who are appointed to that Strasbourg Court have never even been lawyers—they are not qualified—let alone judges? Often, they are academics, civil servants or even politicians. More recently, as time has gone on, they have been human rights activists. These non-lawyers are often guided by non-governmental organisations, who even help to draft their judgments. They are what Lord Sumption has described as “ideologically committed staff lawyers”. Why should we in this place and in this wonderful country be subservient to that notion of international justice? Make laws here—that is what our people want.

[Sir John Hayes]

In that pithy intervention, my hon. Friend has described much of the fundamental problem of allowing what my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) described as a foreign court with foreign judges to determine outcomes that directly affect the interests of this country.

[Sir Edward Leigh]

Will my right hon. Friend give way, on that point?

[Sir John Hayes]

My hon. Friend the Member for Derbyshire Dales (Miss Dines) advanced so many compelling arguments in her intervention that I want to deal with all of them before I give way to my right hon. Friend.

--- Later in debate ---

[Sir Edward Leigh]

People talk about the European Court of Human Rights in Strasbourg as if it were rather like our own Supreme Court or that of the United States but, as I said earlier, I am a member of the Council of Europe, so I know exactly how these judges are appointed. We in the Parliamentary Assembly of the Council of Europe appoint them: it is the one power that we have. We are given three names, and we have very little information about who those people are, but it is undoubtedly true—there is evidence of this—that more and more of them are not, like our judges, distinguished lawyers and judges; they are, for instance, human rights lawyers and academics. What is worse about the process is that, unlike our judges, they are not appointed through an independent process. The political groups in the Parliamentary Assembly, dominated by the socialists and the federalist Christian Democrats, join together to appoint the most federalist pro-European judge.

[Sir John Hayes]

It is that to which I was alluding. The separation that exists in this country between the judiciary and the legislature in the political process and the process of justice simply does not apply in many of the other countries in Europe, and it certainly does not apply further afield. There is a problem of the politicisation of the courts and also, as I said earlier, there is a problem of quality, both of which were referred to by my hon. Friend the Member for Derbyshire Dales and my right hon. Friend the Member for Gainsborough.

Secondly, there is an issue of accountability. The point about law in this country is that it is made in this place. The reason why that is so significant is that this place derives its legitimacy from elections—democratic and fair elections. We were empowered to make laws in this Parliament because we were accountable and answerable to the people. As soon as we subsume that accountability into some pan-national arrangement, especially the kind outlined in my hon. Friend’s intervention, we weaken this House, and by weakening this House we weaken the people who send us here. That is partly why their view of the world is so at odds with what I described earlier as the political elite, although what I really mean is the bourgeois liberal elite who dominate far too much of the establishment in all its elements.

[Sir Edward Leigh]

There is a bourgeois liberal incarnate!

[Sir John Hayes]

I exclude the hon. Member for Westmorland and Lonsdale. He is liberal but he is not bourgeois—at least, as far as I am aware.

[Tim Farron]

I am not.

[Sir John Hayes]

He definitely is not.

The amendments that disapply the Human Rights Act are fundamental to the Bill’s success. May I just say as an aside—it is, of course, entirely relevant to the Bill, Sir Roger—that we should, in government, from 2010 onwards, have got rid of the Human Rights Act anyway? It is a Blair construction, through the prism of which all legislation now seems to be seen. It is a very damaging statute that has stymied much of the work of subsequent Governments.

Amendments 23 to 25, taken together, would prevent the notorious rule 39 injunctions—the so-called last-minute pyjama injunctions—which emanate from Strasbourg. These amendments would ensure that the default position was that rule 39 indications were not binding and this was explicitly a matter for Ministers. The Government’s own legal advice has made it clear that without amendment to the Bill, flights may be grounded yet again. Ministers will indeed have the opportunity to introduce exceptions, but will not be bound to do so. The Bill must be amended so that Ministers can disregard rule 39 orders. We really cannot allow Strasbourg judges to overrule this Parliament and halt flights. Decisions must be taken by those elected in Westminster, not by courts in Europe. This is what the people expect of us; it is what the people demand of us.

The Bill may block claims about the general state of Rwanda, but it will still permit individual claims, which will block removal unless such individual claims are explicitly excluded. We know that spurious cases are used to frustrate removal, and thus the legislation will have no teeth. The Minister knows that these things go on for days and weeks and months. These cases are never resolved quickly, and time is short. Consequently, the Government must surely acknowledge that, at the very least, the flights that they, and we, regard as a necessary part of dealing with the scourge of illegal immigration will be delayed.

The amendment will block individual claims and suspensive claims, limiting such claims to exceptional circumstances. There are circumstances, perhaps when a seriously ill person cannot travel, that should be accepted—I hope we would all agree with that—but those will be rare cases. The Home Office has already correctly excluded families, children and pregnant women, but those circumstances are incredibly unlikely, given what I have said about the profile of those people arriving in small boats being overwhelmingly fit men under the age of 40.

This is the third migration Bill in recent times. It is our third and final chance, as others have said, to deliver on our promise to the British people to stop the boats and control our borders. If we fail to strengthen the Bill in the way that these amendments do, it will simply not work, and if we fail to make the Bill work, we will fail the British people. We will have broken our promise to them. Thousands more people will make risky journeys in perilous conditions and our hotels will remain full of those awaiting judgments at enormous cost. The British people will regard this as a failure that is rooted here in this House and in this Government.

The Minister is a good man and a diligent Minister and I am sure he understands the thrust of the arguments that have been made in the Committee today. He will know that, in the end, this is about a fundamental crisis of democratic efficacy: the ability of a nation state to deliver for its people. The greatest Conservative Prime Minister of all time, Benjamin Disraeli, said that

“justice is truth in action.”—[Official Report, 11 February 1851; Vol. 114, c. 412.]

This issue is a matter of justice—legal justice and social justice. It is for that reason that the British people want to see the boats stopped. They simply regard it as unjust that our borders are being breached with impunity.

If the elected Government of the United Kingdom cannot remove people who arrive here without permission, a more troubling and profound question must be asked. Who governs our country? My constituents want the Government they elect and the Parliament they vote for to determine who governs Britain. Only by improving this Bill and by delivering the Prime Minister’s mission of stopping the boats can we answer that question.

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[Tom Hunt]

My hon. Friend is absolutely right. There are intolerable pressures being placed on this country through mass legal migration and illegal migration. It is right that more and more of my constituents are seeing the link between that issue and pressure on public services, strains on social cohesion and other things. Immigration at sustainable levels with integration is a force for good. Immigration at unsustainable levels without integration causes intolerable troubles for the people of this country. That is something they want to guard against.

[Sir John Hayes]

That view is held not just by my hon. Friend, by many in the House and by many in the country, but by many countries in Europe. Mass migration is now seen as an issue of salience by countries right across Europe and the wider world. He is far from alone: he is speaking for the people.

[Tom Hunt]

We have heard lots of arguments about the ECHR and about Winston Churchill forming it. That has been defeated time and again but continues to be wheeled out by Opposition Members. I do not agree. I do not think for a moment that if Winston Churchill was alive today, he would be comfortable with the way in which today’s ECHR operates and its supranational nature.

Ultimately, I applaud the Prime Minister’s desire to stop the boats, but it is not enough just to try, and it is not enough to be just 80% or 90% of the way there. We need to be 100% of the way there. We have seen previously that any chinks in the armour of any Bill designed to tackle this issue will be ruthlessly exploited. We share the Prime Minister’s desire and we want to work with him to get a Bill that we can all unite behind to stop the boats.

Immigration is not just an important issue. I honestly believe that it has become an existential issue. Ultimately, it is important that we unite behind the Bill, but it needs to work. The question is: do we think that the Bill will work or not? Do we think it can be strengthened? For all those reasons, I will vote for the amendments tabled by my right hon. Friend the Member for Newark with a certain degree of pride. I believe in the sovereignty of this country, I believe in listening to the people of this country, and I believe in narrowing the unhealthy disconnect there is between the views of the majority of people on immigration and where we are at the moment.