Safety of Rwanda (Asylum and Immigration) Bill

Lord Bishop of Chelmsford Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

[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?

[The Lord Bishop of Chelmsford]

My Lords, I support Amendment 33 from the noble Lord, Lord Kirkhope of Harrogate, to which I am a signatory. I am grateful to the noble Lord for the amendment and I welcome the opportunity to discuss the role of Parliament if a higher court were to declare this legislation to be incompatible with the convention right, or indeed a number of rights.

We should not forget that the Government have been unable to make a statement in the Bill that it is compatible with convention rights. As the Government nevertheless wish Parliament to proceed with the Bill, it seems prudent to probe what the role of Parliament would be in determining how any potential incompatibility should be addressed. In fact, the Attorney-General has said in the Government’s own legal position paper that it should be for Parliament to address any determination of incompatibility by the courts. The noble Lord, Lord Kirkhope, has eloquently set out the motivation for this amendment, and I agree that what it does is simply to expound what parliamentary sovereignty would look like in this context.

I appreciate that the Government believe that there is no basis for a declaration of incompatibility, and that therefore Section 4 of the Human Rights Act has not been disapplied. However, if Parliament proceeds to pass the Bill on the basis of this view, but the domestic courts declare otherwise, can the Minister say what objection there can be for giving Parliament a clear opportunity to revisit this issue? Surely the Government and Members across all Benches agree that parliamentary sovereignty includes the legislative function’s ability to oversee the executive function. As the legal position paper reads:

“The principle that Parliament should be able to address any determination by the courts of incompatibility, rather than primary legislation being quashed by the courts, is part of the fundamental basis of Parliamentary sovereignty”.


The Human Rights Act does not compel the Government or Parliament to remedy an incompatibility, but Parliament must be able to take steps to do so. It is not unreasonable to expect Ministers to explain—and to explain without delay—why they may not be bringing forward a remedial order. If the Minister disagrees with this supposition, can I ask him to please make clear the Government’s position?

Your Lordships will know that we have spoken with one voice on these Benches, as we believe that the Rwandan partnership agreement is an abdication of both our legal and our moral responsibility to refugees seeking sanctuary here in the UK. It is highly disturbing that this Bill implies that human rights are somewhat discretionary, somehow no longer universal, and that they can be disapplied for those reasons outlined in domestic law.

The fundamental truth that I believe in is that every person is equally deserving of rights, as every person is equally made in the image of God. However, this is not just a theological statement but also an indisputable legal principle that underpins our international human rights framework: that all are equal before the law. Noble Lords will know that I am not a lawyer, but this point was very well made by the noble Baroness, Lady Chakrabarti. She made it powerfully, better than I could do. Removing asylum seekers from certain protections enshrined by the Human Rights Act severely undermines the universality of human rights and our collective access to justice. As the refugee convention states, protection is not a simple concession made to the refugee; he is not an object of assistance but rather a subject of rights and duties.

Human rights are not an opt-in or opt-out concept, and Section 4 of the Human Rights Act gives the courts the opportunity to remind us of that. This is surely central to the UK’s commitment to the rule of law. Parliament has the right to create law, but our authority cannot extend to creating injustices. Parliament therefore may need to ask whether we should maintain parliamentary consent if the Bill is found to not afford adequate protection of fundamental human rights, and Amendment 33 facilitates this. It is a perilous time for the protection of human rights across the globe, and the UK’s contribution should not be to diminish their value or put them further out of reach for some of the world’s most vulnerable people. I hope and pray, therefore, that we have the chance to revisit the proposals in the Bill.

[Lord Carlile of Berriew (CB)]

My Lords, I shall speak in qualified support of Amendment 33, but before I do so I should say that it is a pleasure to follow the right reverend Prelate. Outside this House as well as within the House, I have heard her deploying her calm, compelling advice on a range of subjects connected with refugees and asylum seekers, and she has done so with her usual skill this evening.

Before I get to Amendment 33, however, I need to make two apologies and I hope the court will bear with me. The first is for my absence from the Committee until I arrived back this afternoon. My second apology is that right at the end of the debate at Second Reading, I made a factual error, for which I take full responsibility, although the advice came from elsewhere, when I said that homosexual acts were still illegal in Rwanda. I am glad to say that homosexual acts are not illegal in Rwanda: I was wrong. Having said that, the evidence of how homosexual acts are seen by society in Rwanda is now well behind the law that the Government there have introduced.

I turn to Amendment 33. We heard earlier from the noble and learned Lord, Lord Stewart, about the importance of Parliament as a court. Yes, the lawyers are more familiar than others with the expression “the high court of Parliament”. It is a nice conceit that Parliament likes to deploy from time to time, but it does not actually add up to a statement of fact. Let us just think about how courts operate. I am concerned to some extent about the abstraction of our debates on the subjects we are discussing at the moment. Let us consider what actually happens when a lawyer—say me or one of a number of my noble friends and colleagues around the House—has a client, in a room which they have entered extremely nervously, or in a very unpleasant surrounding in a place of detention, who has a very serious problem on which their whole future depends, whether it is a very long prison sentence, the break-up of the family or being sent to a faraway country where they never intended to go.

What we as lawyers do is, first, to analyse the complaint that is made. Secondly, we give an opinion as to whether there is an injustice. I hope that we are always frank; we sometimes have to be cruel to be kind in telling the truth. But if there is an injustice then we explain that the golden thread of English law actually has a number of strands. Yes, one is the jury system— I heard that replayed on the radio today—but another is that if there is a wrong, there is a remedy for it. It may be difficult to achieve a remedy for the wrong but there is a remedy and a procedure, and that procedure can be taken to a court.