Amendment 31

Part of Safety of Rwanda (Asylum and Immigration) Bill - Committee (2nd Day) – in the House of Lords am 5:45 pm ar 14 Chwefror 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland 5:45, 14 Chwefror 2024

My Lords, as always, I am grateful to noble Lords who contributed to the debate on this group and added their wisdom to the Committee’s deliberations in relation thereto.

Clause 3 disapplies in particular circumstances certain provisions of the Human Rights Act 1998, specifically Sections 2, 3 and 6 to 9. I state and emphasise at the outset that we do not strip human rights from anybody by this means. It is

“a fundamental tenet of modern human rights that they are universal and indivisible”—

I happily associate myself with the views of the noble Baroness, Lady Chakrabarti, and the right reverend Prelate the Bishop of Chelmsford in that regard—

“this is reflected in, amongst many other things, Article 2 of the Universal Declaration of Human Rights, Article 2 of the International Covenant on Civil and Political Rights, and Articles 1 and 14 of the ECHR.

But it is legitimate to treat people differently in different circumstances: to take just two examples, a citizen may legitimately be treated differently, and have different legal rights, from a non-national; and a person in detention may have certain rights restricted when compared to a person at liberty. The ECHR, as interpreted by the case law of the ECtHR, fully recognises this principle. Rights are therefore universal, but what rights may mean for different people may legitimately differ depending on the circumstances, so long as any difference in treatment is justifiable within the framework of the relevant right. Therefore, everybody holds their rights without distinction on any ground; but the extent to which those rights may be limited, restricted, interfered with, or indeed vindicated, depends on each individual’s circumstances, and the legitimacy of the limitation, restriction, interference, etc.

To be clear, there is nothing in the Safety of Rwanda (Asylum and Immigration) Bill that deprives any person of any of their human rights: in accordance with Article 1 of the ECHR, we shall continue to secure to everyone within our jurisdiction the rights and freedoms defined in the Convention. What we can legitimately do, and what we are doing, is to draw legal distinctions between those with a legitimate right to be in this country, and those who have come to this country illegally”.

I have just quoted ad longum—extensively—the submission of the Lord Chancellor to the Joint Committee on Human Rights last year.

The disapplication of these provisions will ensure that the Bill’s provisions are interpreted to meet the legislative intent of Parliament and make it clear that people are prevented from bringing systemic challenges in our domestic courts about the general safety of Rwanda to prevent their removal.

The noble Lord, Lord Scriven, in opening the debate, referred to the underlying purpose as being to stop the boats. What we are doing is responding to the decision of the United Kingdom Supreme Court and to the points made by it in relation to a complex and multifaceted problem.

Section 3 of the Human Rights Act can require courts to interpret the meaning of legislation to make it compatible with convention rights, so far as it is possible so to do. Disapplying Section 3 confirms and ensures that the provisions will be interpreted in accord with the legislative intent of Parliament; it follows the approach taken in the Illegal Migration Act.

Disapplying Section 2 ensures that considerations about the Rwanda treaty and the safety of Rwanda are located firmly in the domestic sphere and, taken together with the rest of Clause 3 and the Bill as a whole, makes it clear that appropriate deference should be given to Parliament’s sovereign and final determination on the mater.

I turn first to Amendment 36, tabled by the noble Baroness, Lady Chakrabarti, which seeks to replace this clause with a new clause that would mean that the Human Rights Act applied in full to this legislation and to removals to Rwanda, save for limited disapplication of Section 6. As the Home Secretary set out in the other place, in order to prevent individual claims to prevent removal, the Bill disapplies certain relevant provisions from the Human Rights Act. We consider this to be fair, necessary and lawful, because we have now addressed every reason that has been used to prevent removal to Rwanda. With the leave of the Committee, I will not reply to the specific invitations to say what the ultimate justification for this is, as presented by the noble Baroness and by my noble friend Lord Deben. However, I will say that we are doing as little modification to the law as is necessary, in the context of the present circumstances, to make the policy work, demonstrating, I submit, the use of that very caution which my noble friend Lord Hailsham called for. We are not, as I said at the head of my submission, treating asylum seekers as being less than human. As a Government, we are taking steps to control the country’s borders, one of the most important functions which a Government can fulfil.

The right reverend Prelate the Bishop of Chelmsford made a number of points, on some of which I have sought allay her concerns already. With the right reverend Prelate’s pardon, I will deal with a couple of slightly technical matters. She referred to Section 19(1)(b) of the Human Rights Act. I did cover that point; I will come back to it, if I may, in the course of my submission, but I covered it in speaking to the Committee on Monday.

On the second slightly technical point—and I mention it really for the benefit of Hansard’s record of your Lordships’ Committee’s proceedings—the right reverend Prelate referred to a matter as being the Attorney-General’s view. I simply place it on record that the document from which she quoted was the government legal position. I have to say that because the Committee will be aware that there is a convention on law officers’ advice and opinions, so it is correct to say that the document from which the right reverend Prelate quoted was not that advice, lest the record present in any sense the idea that that convention has been departed from.

The noble Baroness’s Amendment 36 seeks to replace this clause with a new clause, meaning that the Human Rights Act applies in full to this legislation and to removals to Rwanda, save for the limited disapplication of Section 6. As I said, the Home Secretary has expressed a view in the other place to the effect that disapplication of certain provisions is necessary to prevent individual claims to prevent removal.

Clause 3 also disapplies Sections 6 to 9 from decisions, whether by decision-makers or the courts, related to the conclusive presumption that Rwanda is safe and any application of the serious and irreversible harm test. Section 6 says that it is unlawful for public authorities, which includes Home Office decision-makers and the courts, to act in a way that is incompatible with convention rights. It is a defence if the public authority could not have acted differently because of the provisions of primary legislation. Disapplying Section 6 confirms that public authorities are not bound in domestic law to act in a particular way as a consequence of convention rights. In the context of this Bill, which deems Rwanda a safe country, this measure is targeted at preventing people from frustrating removal by bringing systemic challenges in our domestic courts.

We consider, none the less, that the Bill is compatible with our international obligations. In particular, it allows individuals to bring challenges against removal to Rwanda on the basis of particular individual circumstances.

The disapplication of Sections 7 to 9 follows from the disapplication of Section 6. These are the operative provisions of the Human Rights Act that flow from Section 6, providing for judicial processes and remedies. Given that Section 6 is disapplied, these provisions are not needed.

The “notwithstanding” provision in Clause 2 requires courts to honour previous clauses within the Bill notwithstanding all relevant domestic law, the Human Rights Act to the extent disapplied by the Bill, and any alternative interpretation of international law reached by the court or tribunal.

With regard to Amendment 31, tabled by the noble Lord, Lord German, and introduced by the noble Lord, Lord Scriven, as debated at length earlier in the week, the purpose of this provision is to ensure that the courts accept Parliament’s view that Rwanda is a safe country, building on the treaty between the United Kingdom and the Government of Rwanda and published detailed evidence that the Government have used to inform their assessment on the safety of Rwanda. This is an essential part of the Bill to confirm the sovereignty of Parliament passing this legislation and directing the courts in interpreting it, to the extent which those courts may have regard to other legal sources when interpreting Clause 2.

I now turn to Amendment 33, tabled by my noble friend Lord Kirkhope of Harrogate. I am grateful for my noble friend’s acknowledgement of progress in relation to small boats by way of returns agreements and other means. The system of declarations of incompatibility under Section 4 of the Human Rights Act represents an elegant compromise—the noble Baroness, Lady Chakrabarti, described it as an exquisite compromise. It is a compromise between the value of human rights scrutiny by our domestic courts and the preservation of parliamentary sovereignty. Section 4(6) expressly does not allow a judicial ruling to prevent the operation or enforcement of legislation passed by Parliament and does not oblige any action to be taken as a result, as the Committee heard from both sides, from my noble friend Lord Murray of Blidworth and from the noble Baroness, Lady Chakrabarti.

Under the Human Rights Act, the Government are therefore under no obligation to make a proposal to Parliament to legislate, or indeed take any action, as a result of a declaration of incompatibility. It has, however, been the accepted practice, since the introduction of the Human Rights Act, for the Government to address such declarations either through a proposal for primary legislation or by way of a remedial order.

I therefore submit that this amendment is unnecessary, as it seeks to move a Motion for the statement to be debated by each House within the period of three sitting days if a remedial order has not been laid. It seeks to make it so that declarations of incompatibility take on a binding character, which is expressly not what they were designed to be, and specifically to place pressure on the Government to present legislative proposals to Parliament. I submit that it is not for this House to legislate for parliamentary procedure in the manner of this amendment, which is designed to expand the current process relating to declarations of incompatibility.

I submit that the declaration of incompatibility procedure has worked well: it has served Parliament well. The strength of it is seen by the rarity with which Governments do not act in reflection of such declarations when they are imposed. I do not agree that they do not provide an effective remedy. I think that we are required to bear that in mind when we consider the desirability or necessity of my noble friend’s amendment.