Safety of Rwanda (Asylum and Immigration) Bill

Lord Hannay of Chiswick Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, the words that I am about to utter are largely not mine. They are the words of the noble and learned Lord, Lord Hoffmann, who I am delighted to see in his place, in the preface he wrote to a paper on Rule 39 written by Professor Richard Ekins, professor of law and constitutional government at Oxford, and published by Policy Exchange last year.

The noble and learned Lord, Lord Hoffmann said:

“A ruling of a court such as the European Court of Justice”—


though I think he probably meant, if noble Lords will forgive me, the European Court of Human Rights as his words certainly apply to it—

“is binding upon the parties only if the court had jurisdiction to make it. If it did, a party must comply and cannot complain that it was wrong. If the court did not have jurisdiction, the parties can ignore it.

The European Convention on Human Rights confers upon the Strasbourg Court jurisdiction in all matters ‘concerning the interpretation and application of the Convention’: article 32. It exercises this jurisdiction by the judgments of its Chambers, which, after submissions and argument by the parties, become final in accordance with articles 42 and 44. In this paper, Professor Ekins demonstrates that the Convention does not confer upon the Court, still less upon one of its judges, a power to make orders binding upon a Member State which require it to do or refrain from doing something on the ground that it might at a later stage be held to have been an infringement of the Convention. Not only is there nothing in the language of the Convention which expressly confers such a power but the usual aids to the construction of a treaty – the travaux preparatoires, the subsequent practice of the court – reflect a clear understanding that no such power exists.


What has happened is that one of the rules which the Court has itself made to regulate its own procedures has included a power to ‘bring to the attention of the Parties any interim measure the adoption of which seems desirable’ to avoid a violation of the Convention. The existence of a power to fire such a shot across the bows is practical and sensible. It does not involve the assertion of any jurisdiction to impose a legal obligation. But what has happened in the court’s recent jurisprudence is that this advisory power has been assumed to be a power to grant legally binding interlocutory relief. As Professor Ekins demonstrates, a court cannot in this way enlarge its jurisdiction by its own bootstraps. And if the Court had no jurisdiction to make such an order, Member States are free to ignore it”.


The noble Lord, Lord Scriven, referred to Article 32, which gives the court the power to interpret and apply the convention. It does not, however, give the court the power to add something to the convention which simply is not there. As Professor Ekins said in the concluding words of his paper:

“In rejecting the Strasbourg Court’s actions in excess of jurisdiction, the UK … would not be failing to honour its international legal obligations; it would be inviting the Court to honour its own legal obligations”.

[Lord Hannay of Chiswick (CB)]

My Lords, I would like to follow those who have supported some of this group of amendments. I do not want to follow on to the territory of the European Court of Human Rights. A number of previous speakers, though not the most recent one, have expressed my views perfectly well.

I take issue, briefly, with the lamentable use of the phrase “foreign court” by the Prime Minister, which I regard as an extraordinary breach of British diplomatic history and practice. When he winds up, I would like the Minister to answer the following questions. We accept the compulsory jurisdiction of the International Court of Justice. We have no member of that court at the moment, lamentably, due to diplomatic ineptitude. Is that a foreign court? We accept the International Court’s compulsory jurisdiction, do we not? We are delighted when the International Criminal Court indicts Mr Putin for abducting Ukrainian children. Do we accept it? Is it a foreign court? We are pretty pleased when the Tribunal for the Law of the Sea rules that the Chinese are ultra vires in seizing large chunks of the South China Sea. Is that a foreign court? I could go on. We have been trying to sustain the dispute settlement procedure of the World Trade Organization against the worst efforts of our closest ally, the United States. Is that a foreign court? We accept its jurisdiction. Could we please stop talking about “foreign courts”, and realise that it is in the interests of this country to stick with the obligations it has undertaken to obey such tribunals?

[Lord Jackson of Peterborough (Con)]

My Lords, I want to speak very briefly to group 5 amendments. Specifically, I go back to the answer that the noble and learned Lord, Lord Hope of Craighead, gave to me earlier. Yes indeed, the plenary court—

[Lord Jackson of Peterborough (Con)]

It was very observant of the noble Lord, Lord Purvis, but I was in here. I left to get my notes that I needed, but I am touched by his interest.

On the issue from the noble and learned Lord, Lord Hope, the plenary session on 13 November did indeed undertake to de-anonymise the individual single judges involved in adjudication, but that has not yet happened, and there is no timetable for that. So I suppose each of us is half right.

The important thing to state, again, is that the wider context, as touched upon by the noble Lord, Lord Green of Deddington, is that the public are exceedingly concerned about the issue of illegal migration. It cannot be brushed aside when we talk about arcane legal and legislative points. People are angry and they want answers. As a Parliament, we have to find a way to face up to those very difficult issues. The point I made a week or so ago is that if there is a change of government, the Labour Party is most likely going to have to face those challenges as well. Instead of just criticising the Government, it will have to come forward with some really significant proposals to address those issues.

The Strasbourg court, as it happens, has never asserted or conferred, via member states, the right to authorise the court to grant interim relief in terms of the ECHR convention treaty. Indeed, domestic courts—the Supreme Court and the Appeal Court—have found quite the contrary, as was mentioned by the noble Lord on the Cross Benches earlier.

There is a concern about this battle between parliamentary sovereignty and accountability in this House and in the other place, and the idea that a decision which could have very profound public safety ramifications—this is a tiny minority, but it could possibly—is taken in foreign court with an anonymous judge where the Government are not permitted to present evidence in a timely way. There is no real accountability. I am sorry to say that the noble Lord, Lord Hannay of Chiswick, finds it disobliging to call it a foreign court, but that is how many voters, taxpayers and British citizens see it.

[Lord Hannay of Chiswick (CB)]

I am grateful to the noble Lord for giving way. My complaint about the use of the term “foreign court” was not due to any discomfort, but because people such as himself and the leader of his party encourage people to call courts which are not foreign courts “foreign”. They are courts of organisations which we have endowed with certain powers, and which often have British judges on their tribunals. That is my complaint.