Safety of Rwanda (Asylum and Immigration) Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I strongly agree with the point that the noble Baroness has made. My name is to Amendments 57 and 59. It is rather appropriate that we come to these amendments immediately after the House has considered the murder of Navalny.

There is a precedent for what we are asked to do in Clauses 5(2) and 5(3)—a Russian precedent. In 2016, the Russian Parliament passed a decree enabling the Russian Constitutional Court to ignore rulings from the European Court of Human Rights. It is not a very exact precedent; the Russian Parliament was passing permissive legislation, which permitted the Constitutional Court in Moscow to ignore rulings from Strasbourg.

What we are doing is not permissive but proscriptive and prohibitive. We are being asked to ban all our courts from having regard to or paying any attention to any interim measure from Strasbourg if it relates to a decision on transportation to Rwanda. We are being asked to pass a law which bans any official from paying any attention to a Strasbourg ruling in a relevant case; only a Minister is allowed to decide whether we comply or not. There is no role for Parliament or the courts, and the role of the Executive is strictly at ministerial level. That is extraordinary.

Russia is no longer in the Council of Europe. It lost some of its rights with the second Chechen war and more with the seizure of Crimea, and after the invasion of Ukraine it lost them all. However, we seem to think that we can stay even though the law we are being asked to pass is much more draconian, trenchant, in the words of the noble Baroness, Lady Chakrabarti, and hostile to the convention than the Kremlin’s. It is a very strange fact that at this moment—

[Lord Jackson of Peterborough (Con)]

My Lords, I am listening carefully to the noble Lord. In all sincerity, what is the difference between a foreign, unaccountable and anonymous single judge in a court over which the British people have no control, accountability or democratic sanction, and some of the more unappetising and less benign regimes and legal procedures to which he refers?

[Lord Kerr of Kinlochard (CB)]

The noble Lord is well aware that the Strasbourg court has decided to pass various reforms and the anonymity of the judge is a thing of the past. I am not an expert on the Strasbourg court. However, I am a believer that if we maintain that we believe in the rule of law, we cannot pick and choose which bits of international law we comply with. That is a point I put forward at Second Reading and one I feel very strongly about. I do not see how we can, in good conscience, pass Clauses 5(2) and 5(3), which is why I added my name to Amendments 57 and 59 as moved by the noble Lord, Lord Scriven.

[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”.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, I do not often say this to the noble Lord, Lord Sharpe, but that was a really disappointing response, partly because the Committee is seeking numbers and information and numbers were there none. The Government will have assumptions about what is happening. The other place has spent months and months debating Rwanda and this place has spent months doing so too; we have spent weeks on this Bill, including three days in Committee.

What I was asking with Amendment 67—and I am grateful to the noble Lords, Lord Carlile and Lord Purvis, for their support—was what the Government’s assumption is about the number of people who are going to go to Rwanda. It is no answer to say that the numbers are uncapped. That is a Civil Service response; it is what you say when it is difficult to answer and you do not want to do so.

[Lord Kerr of Kinlochard (CB)]

It is quite wrong to insult the Civil Service.