Safety of Rwanda (Asylum and Immigration) Bill

Lord Dodds of Duncairn Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

Moved by

[Lord Dodds of Duncairn]

44ZA: Clause 8, page 6, line 24, at end insert—
“(1A) The provisions of this Act have effect in Northern Ireland, notwithstanding section 7A of the European Union (Withdrawal) Act 2018 (General implementation of remainder of withdrawal agreement).”

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[Lord Dodds of Duncairn (DUP)]

My Lords, this amendment seeks to put beyond doubt what the Government claim to be the case—so they should have no difficulty accepting it or bringing forward an amendment of their own with the same purpose and effect.

The Government assert that Article 2 of the Northern Ireland protocol or Windsor Framework is not engaged in regard to immigration and therefore can have no application to the Bill before us. Their argument, however, has been blown out of the water on a number of occasions recently in the High Court of Northern Ireland. There should be little surprise at that, given the supremacy of Article 2 of the Windsor Framework and EU law over any domestic British law by virtue of Section 7A of the European Union (Withdrawal) Act 2018. A number of court cases in recent weeks have confirmed that in the High Court in Belfast.

First, in the application for judicial review in the Angesom case on 18 October, Mr Justice Colton ruled that Article 2 of the Windsor Framework is applicable and relevant to immigration cases, and that EU law and the EU Charter of Fundamental Rights continue to apply.

Secondly, in the case of application JR 295 for leave for judicial review concerning the Illegal Migration Act, Mr Justice Humphreys stated in his judgment of 12 February, in paragraph 43:

“It is clearly arguable that this applicant enjoys the protection of Article 2(1) of the Windsor Framework and can seek to rely on the rights enshrined in the various EU Directives, Regulations and the Charter in order to challenge the provisions of the IMA”.


He went on to say that this was entirely consistent with the granting of leave to the Northern Ireland Human Rights Commission, which is bringing a parallel challenge.

Thirdly and most recently, on 28 February 2024, the High Court in Belfast ruled that the immunity provisions in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 are incompatible with European Convention on Human Rights and Article 2 of the Windsor Framework once again. The significance of that of course is that it was not just a ruling of incompatibility under the European Convention on Human Rights, but it was ruled that a number of the provisions, all relating to immunity under that Act, were disapplied. Mr Justice Colton stated that Section 41 of that legacy Act was “incompatible with” Article 2 of the Ireland-Northern Ireland Protocol/Windsor Framework. So, pursuant to Section 7A of the EU withdrawal Act 2018, Article 2 has primacy over Section 41, thereby rendering it to have no force and effect—so Section 41 should be disapplied.

These very recent rulings of the High Court in Belfast have far-reaching consequences for the Bill before the House, and more generally. The ruling in relation to Article 2 of the Windsor Framework is highly significant because of the reasons I set out regarding disapplication, not just incompatibility. I put down this amendment to explore, first, how the rulings of the High Court fit with the Government’s assertions. Secondly, how do they sit with paragraph 46 of Command Paper 1021 Safeguarding the Union? That paper says:

“The important starting point is that the Windsor Framework applies only in respect of the trade in goods—the vast majority of public policy is entirely untouched by it. This includes important areas like immigration”.


This is clearly at variance with what three High Court judgments have now ruled. Some of us were pointing this out when the Command Paper was published, and indeed, long before that. If European law is enshrined and given primacy in Northern Ireland as a result of Section 7A of the European Union (Withdrawal) Act 2018, this is the inevitable outcome. It is very clear in law that that is the case.

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[Lord Stewart of Dirleton (Con)]

I shall make sure that the noble Lord’s point is given consideration before Third Reading.

For the reasons that I have sought to set out, I would encourage the noble Lord, Lord Dodds, to withdraw his amendment at this stage.

[Lord Dodds of Duncairn (DUP)]

My Lords, I am grateful to the Minister for his response to the debate and to everyone who has taken part. My purpose in bringing this amendment is, again, to shed light on the reality of where Northern Ireland in particular stands. I hear what he said about the appeal and what he said about meeting us before Third Reading; I would like to explore these matters in greater detail. We have heard the reassertion of the original assertion, which might have been understandable before the first case, or maybe even after the first case, but after three court cases it is beginning to wear a little thin. However, I look forward to meeting him and discussing it further. With that in mind, I beg leave to withdraw the amendment standing in my name.

Amendment 44ZA withdrawn.