Amendment 31

Part of Safety of Rwanda (Asylum and Immigration) Bill - Committee (2nd Day) – in the House of Lords am 4:30 pm ar 14 Chwefror 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Baroness Chakrabarti Baroness Chakrabarti Llafur 4:30, 14 Chwefror 2024

My Lords, it is a great pleasure to follow the noble Lord, Lord Kirkhope of Harrogate, who was, of course, an Immigration Minister in the Home Office and therefore is not a “lefty lawyer” or someone who would be out to wreck any government legislation in this area. I want to say a little about disapplication of the Human Rights Act in general and a little in support of his amendment and to explain my probing Amendment 36.

In my lifetime, in different decades perhaps, both the main parties in this country have at times been divided on Europe. It is particularly sad that, for the party opposite, divisions over Europe have morphed into divisions over human rights and perhaps even the rule of law. As a self-identifying lefty human rights lawyer, I find that very sad because of the rich Conservative rights and rule of law tradition in this country, which was essential to the settlement that some of us are here to defend.

In attempting to paper over the splits in the Conservative Party over the European Convention on Human Rights and our domestic Human Rights Act, the Government seem to be trying the following trick: “We do not currently think there’s consensus in our party to do what we’ve promised to do in various manifestos, which is to repeal the Human Rights Act altogether. We don’t currently think we have the will, the mandate or the time to walk out of the European convention, as some of us want to do, but what we can do, and what it might be quite politically expedient to do, is instead to chip away at rights protection for particularly vulnerable groups of people. So we’ll disapply the UK Human Rights Act, for example, in relation to prisoners in the Victims and Prisoners Bill. We will disapply the UK Human Rights Act from asylum seekers and refugees in the Illegal Migration Act, or the safety of Rwanda Bill, and so on. We can then say to the electorate, ‘You can have your cake and eat it. There can be rights for some people and not for others. There can be rights for the many and not the few, and not the demonised few in particular’”.

Of course, that is the opposite of human rights protection. I will not bang on about this, but many noble Lords in this Committee, lawyers and non-lawyers, are constitutionally and historically literate enough to know that the word “everyone” features in many human rights instruments. It is particularly diabolical to chip away at rights protection for the most vulnerable groups and people who cannot even vote, as these people cannot. That is a huge concern that is addressed by some of the amendments and the clause stand part notice in this group.

I am particularly grateful to the noble Lord, Lord Kirkhope, for his Amendment 33, because he addresses a further problem with the way the Government have gone about disapplying the Human Rights Act for this vulnerable group. The interpretation of convention rights is disapplied. The interpretation of legislation in a compatible way, which is key to the way the Human Rights Act allows judges to interpret other legislation compatibly where it is possible to do so, is disapplied. Section 6, on the acts of public authorities and the duty on public authorities to exercise any discretion compatibly, is also disapplied.

What is left, as the noble Lord, Lord Kirkhope, identifies, is the Section 4 declaration of incompatibility. That is pretty much all that our domestic courts will be able to use if this Bill passes in its current form, which means that the moment the Act comes into force, a refugee or a group thereof will bring a challenge and it will quickly find its way to the High Court. I fully believe that our courts will make a Section 4 declaration of incompatibility.

However, such is the exquisite constitutional compromise that is the Human Rights Act that a Section 4 declaration has only persuasive effect; it is not a strike down power. The noble Lord, Lord Clarke of Nottingham, said eloquently that he hoped that, if this statute passes, our higher courts will strike it down. Strictly speaking, there is no formal power to do that unless we are heading for a very serious constitutional clash, which I hope we can avoid. All there will be is this declaration of incompatibility, which has only persuasive effect on a Government. If the Government carry on with the attitude they have been displaying towards rights, freedoms, the courts and the constitution, it will be two fingers to the Section 4 declaration of incompatibility as well.

This is meant to be about parliamentary sovereignty, not executive diktat, as was warned of in 1976 by the noble Viscount’s father. As the noble Lord, Lord Kirkhope, said, we must at least accelerate a conversation in Parliament before the Government give another two-finger salute to our courts, as they are already doing in relation to the judgment of the Supreme Court. I really welcome the elegant improvement proposed the noble Lord, Lord Kirkhope. There is no way that anyone could describe his Amendment 33 as a wrecking amendment.

As for my Amendment 36, because I object to disapplying the Human Rights Act per se, because it is a constitutional rights instrument in this country— I disapprove of disapplying the US Bill of Rights to particular groups or to everyone, and so on—why on earth have I tabled a limited disapplication of the Human Rights Act myself? That is surely a curious thing to do. I did it to demonstrate that some of us believe that the separation of powers is a two-way street. I was demonstrating that, if, as many of us hope—on the Cross Benches and other Benches too, I believe—one improvement that we make to the Bill will be for there to be some kind of process, parliamentary or other, before the Act comes into force, it would not be appropriate for anyone to litigate at the beginning of that process.

For example, if we end up with an amendment, yet to be agreed, whereby the Secretary of State is to lay some kind of advice before Parliament that Rwanda is now safe because the treaty is now fully implemented, it would not be appropriate for that Act or legislative initiative—whatever you want to call it—to be second-guessed in the courts. The proper place for the courts is after government has initiated and Parliament has decided. That is the moment when the courts should review the factual situation as well as legality. That is what my Amendment 36 is there to demonstrate. It is probably unnecessary. It is there really to demonstrate that the courts in this country are very restrained and respectful of parliamentary sovereignty; it is the Government who do not respect parliamentary sovereignty, as opposed to executive diktat. The Government do not respect the courts.