Safety of Rwanda (Asylum and Immigration) Bill

John Redwood Excerpts

Committee of the whole House
Tuesday 16th January 2024 Commons Chamber

[Stephen Kinnock]

Well, that is an interesting one; I did not have talking about the sub-postmasters scandal on my bingo card today. Parliament is free to legislate in any way it wishes, but it has to do so in full recognition of the view of the courts. I know that a number of eminent legal experts have raised concerns about the Government’s proposed approach on the sub-postmasters. We have to see precisely how the detail looks, and it is our duty in this Parliament to scrutinise it carefully to ensure that we are not setting dangerous precedents. I would argue that there is no doubt whatsoever that the Bill before us would set a profoundly dangerous precedent because it seeks to directly overturn the findings of the highest court in our land, and that is a toxic approach.

[John Redwood (Wokingham) (Con)]

Has the shadow Minister not seen all the comments and budget lines that the Government have put out stating that they are co-operating extensively and fully with continental countries in trying to crack down on the awful trade that is leading to deaths in small boats? The proof is that money is sent to France to help the French with their task. There is no evidence that they are not co-operating.

[Stephen Kinnock]

The co-operation with France is to be welcomed. The problem is that it is too far downstream. We need far better co-operation upstream, which is about sharing data and fixing the issue with the databases—the shadow Home Secretary and the Leader of the Opposition visited Europol recently to come forward with very practical and detailed plans around getting the data-sharing right. That may address the issue of the falling number of prosecutions of criminal smuggler gangs on this Government’s watch and the number of returns and removals falling by 50% since 2010. Again, we go back to the point about putting more energy and resources into the pragmatic and sensible things that can actually make a difference, as opposed to being distracted by this madcap Rwanda scheme.

It is mark of a liberal democracy that courts are independent of Parliament and the Executive. We on the Labour Benches believe passionately that that separation of powers is a fundamental and immutable element of what makes us proud to be British. Not only are we opposed to the specifics of the Bill, but we are deeply troubled by what it represents in a broader sense.

--- Later in debate ---

[Sir William Cash]

We want the Bill to succeed. We want it to work and to do what our voters want, but at present it does not. Clause 2, as it stands, does not work, which is why I shall press my amendment 10 to a vote, supported as it is by well over 60 Members of Parliament. Clause 2 needs to be amended with clear and unambiguous words, and with a full “notwithstanding” formula, not the one currently on offer. This formula has been used throughout our legislative history, for hundreds of years, but most recently it has been enacted in our most important domestic constitutional legislation, without opposition—namely, in section 38 of the European Union (Withdrawal Agreement) Act 2020.

The sovereignty of the Crown in Parliament is democracy, and it is described in a leading case by the great Lord Bingham, our greatest modern jurist, as the “bedrock of our constitution”. Democracy delivers the wishes of the voters who elect us through the legislation that we pass as Acts of Parliament, and it is this democracy for which people fought and died. Nothing can be more important to their daily lives, including illegal immigration, and that is why this issue is so important.

However, it is also important to stress that genuine refugees are fairly protected—this country has always done that—as in the case of Afghanistan, Hong Kong and so forth. Yesterday’s YouGov poll makes it clear how strongly people feel about all this. It is a legal and constitutional, and therefore also essentially political, problem.

The reason why sovereignty is so fundamental is that the courts recognise that they have a duty to interpret, adjudicate on and obey the laws made under that parliamentary sovereignty, where legislative words are clear, express, explicit and unambiguous. Therefore, the use of a comprehensive “notwithstanding” formula, as in my amendment, would ensure that we make the Bill work in line with its intended purposes, and that it would not be frustrated by claims of international law or other contrary law.

The Bill in its current form will not prevent, as everyone knows, further ingenious individual claims, followed by further Supreme Court decisions. The recent Supreme Court judgment on 15 November 2023, as I pointed out in an intervention, makes my very point. It shows that the words in the immigration and asylum Acts at that point in time were not clear and unambiguous. However, and this is vital, it seems to have escaped many people’s notice that one of the claimants—ASM, an Iraqi—had his claim dismissed in that very judgment because, in the words of Lord Reed, the President of the Supreme Court himself,

“in any event, the principle of legality does not permit a court to disregard an unambiguous expression of Parliament’s intention such as that”—

I say this to the hon. Member for Aberavon (Stephen Kinnock) on the Opposition Front Bench—

“with which we are concerned in the present case.”

This was emphatically because the Retained EU Law (Revocation and Reform) Act 2023 and related immigration legislation was so clear and unambiguous in that case as to require the Court to dismiss the claim of the Iraqi precisely as a matter of parliamentary sovereignty.

[John Redwood]

My hon. Friend is doing a wonderful job, as always. Did he see the recent briefings, which seemed to come from the Government, that they are expecting a lot of cases under their law and are going to provide a lot more judges for them? Are they not telling us that this is not going to work?

[Sir William Cash]

I am afraid to say that does appear to be the inevitable inference to be drawn from the statements that have been made. The worry is that, unless the law is completely clear and unambiguous, there is going to be more trouble, and if the Bill was to be passed with clear and unambiguous words, the Government would not need the judges that they seem to want to employ—and nor, for that matter, all the fees that the lawyers will accumulate as a result of taking part in some very spurious cases.

As I have said, the Rwanda judgment is in line with all previous judgments by pre-eminent jurists in recent generations, such as—I mention but a few—Lord Denning, Lord Reid, Lord Hoffmann, Lord Bingham and others. Months ago, I sent the Prime Minister a seven-page memorandum, each line of which set out breaches of international law in almost every jurisdiction in the world, including even the EU itself, the United States, France and Germany, where clearly apparent breaches of international law have occurred without international sanctions. As for the Vienna convention, what really matters is whether the internal domestic law is of fundamental importance in the national interest, and this illegal immigration law manifestly is.

In the UK, we have a dualist system of law in which the sovereignty of Parliament is fundamental to our rule of law and cannot be trumped by international law, the opinions or conventions of the Government Legal Service or—speaking as a former shadow Attorney General—if this be the case, even by an Attorney General. We have a dualistic approach to these matters in which domestic law and international law are seen as independent of one another. The recent Miller 1 judgment states, at paragraph 57, that our

“dualist system is a necessary corollary of Parliamentary sovereignty…it exists to protect Parliament not ministers.”

Furthermore, as Lord Hoffmann made so clear in R v. Lyons in 2002, the courts will have regard to the words of the statute, not the treaty. This is because we have no written constitution defining the internal status of international law within the United Kingdom. As Lord Bingham has said, international law is

“complementary to the national laws of individual states and in no way antagonistic to them”.

International law is not supranational, unlike European law.

British courts cannot deem a statute unconstitutional. Under our constitution, it is the King in Parliament who legislates, not His Majesty’s Government—I thought they had learned that in the civil war of the 1640s. The court does not require to have regard to functions of Government when interpreting the law. A statute, even when arising from an international treaty, will always prevail over a rule of international law. Lord Hoffmann, in the case of R v. Lyons in 2002—I will quote what he says, as I cannot improve on it—stated that

“it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them… It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so... The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not.”

Nothing could be clearer.

In Bradley and Ewing’s authoritative book “Constitutional and Administrative Law”, it is clearly stated that the legislative supremacy of Parliament is not limited by international law. The courts may not hold an Act void on the grounds that it contravenes general principles of international law. Indeed, the Labour Government in 1998 specifically reaffirmed the sovereignty of Parliament in relation to their Human Rights Act, saying that they would not seek to transfer power from future Parliaments to the courts because that would confer on the judiciary a general power over the decisions of Parliament and would draw the judiciary into serious conflict with Parliament. Their own White Paper stated of the judiciary:

“There is no evidence to suggest that they desire this power, nor that the public wish them to have it.”

I do wish the hon. Member for Aberavon was listening to this, because it is about the Labour party, and this still applies today.

Indeed, under paragraph 53 of the House of Lords Constitution Committee’s report of 18 January 2023, the Committee accepts that UK domestic law can

“diverge from obligations agreed by the Government under an international treaty, and ratified following the CRAG”—

Constitutional Reform and Governance Act—

“procedures... And parliamentary sovereignty means that Parliament could legislate to ensure that domestic law differed from the requirements of a treaty.”

Paragraph 54 states:

“Parliament having enacted legislation that is not compliant with the UK’s international obligations, the courts are bound to apply that law.”

Paragraph 58 goes on to state:

“Parliamentary sovereignty means that Parliament can legislate contrary to the UK’s obligations under international law.”

There we have it. And I should add that many members of that Committee, such as Lord Falconer of Thoroton, are certainly not Conservatives or Brexiteers. So there we are—we are all agreed.

In our unique unwritten constitution, our sovereignty patently prevails over international law, which is, for example, in contrast with that of Germany. What happens there? Article 25 of its written constitution, which I have taken from an established work on public international law, states as follows—these are the words of the very constitution in Germany:

“The general rules of public international law are an integral part of federal law. They shall take precedence over the laws, and shall directly create rights and duties for the inhabitants of the federal territory.”

Similar provisions apply under the Dutch constitution, in articles 65 and 66. That tells us that there is a dualist system, and some countries take a view that is different from ours. We just happen to be on the right side of the fence. Similar provisions may be applied by specialist international lawyers, and they may seek to make out that international law in this country prevails over clearly explicit words in Acts of Parliament and parliamentary sovereignty. But no House of Lords or Supreme Court case supports that proposition.