Amendment 17

Safety of Rwanda (Asylum and Immigration) Bill - Report (1st Day) – in the House of Lords am 7:18 pm ar 4 Mawrth 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Baroness Lawlor:

Moved by Baroness Lawlor

17: Clause 2, page 3, line 13, leave out subsection (5) and insert—“(5) This Act and the Illegal Migration Act 2023 will have effect in relation to removals to Rwanda notwithstanding—(a) any provision made by or under the Immigration Acts,(b) the Human Rights Act 1998,(c) EU derived law and case law retained under sections 2 to 7 of the European Union (Withdrawal) Act 2018,(d) any other provision or rule of domestic law (including any common law), and(e) international law, including any interpretation of international law by the court or tribunal.(6) Nothing identified in paragraphs (a) to (e) of subsection (5) may prevent or delay the removal to Rwanda of an individual under this Act or the Illegal Migration Act 2023, or affect the interpretation or application of any provision of this Act or the Illegal Migration Act 2023, including the actions or policies of public authorities, in relation to the removal of a person to Rwanda. (7) To the extent that any provision or requirement included in paragraphs (a) to (e) of subsection (5) has been given effect to in legislation (including the Asylum and Immigration Appeals Act 1993, the Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration (Treatment of Claimants etc) Act 2004), that legislation does not apply in relation to provision made by or by virtue of this Act or the Illegal Migration Act 2023 in relation to the removal of an individual to Rwanda, and shall not prevent or delay the removal to Rwanda of an individual under this Act or the Illegal Migration Act 2023.(8) A person or body to which subsection (9) applies may not have regard to international law, in the circumstances mentioned in subsection (11).(9) This subsection applies to —(a) the Secretary of State or an immigration officer when exercising any function related to removing, or considering for removal a person to Rwanda under this Act or the Illegal Migration Act 2023;(b) a court or tribunal when considering any application or appeal which relates to a decision or purported decision to remove, or to consider the removal of a person to Rwanda under this Act or the Illegal Migration Act 2023.(10) No inference is to be drawn from this section as to whether or not a person or body mentioned in subsection (9) would otherwise have been required to have regard to international law.(11) The Asylum and Immigration Appeals Act 1993 is amended as follows. (12) In section 2, at end insert “except in relation to the removal of a person to Rwanda under the Safety of Rwanda (Asylum and Immigration) Act 2024 and the Illegal Migration Act 2023”.”

Photo of Baroness Lawlor Baroness Lawlor Ceidwadwyr

My Lords, I support the aims of the Bill and I hope that it—and they—will succeed, that it will not be challenged and that there will be no further obstacles put in the way of removing people who come to this country illegally and by these dangerous routes.

My Amendment 17 would leave out Clause 2(5) and substitute the text on the Marshalled List. The aim is to tighten the Bill on what may

“prevent or delay the removal to Rwanda of an individual” under any of the Immigration Acts, the Human Rights Act 1998,

“EU derived law and case law … under sections 2 to 7 of the European Union (Withdrawal) Act 2018” and

“any … provision … of domestic law (including … common law), and … international law” relevant to the aim, so as to limit legal challenges to the Bill. I do not share the views of those who say that the Bill contravenes the rule of law. Their view rests on assumptions about the role of international law, its place within our own system, the creative approach of the Strasbourg court in applying the convention and the tendency now to accord something of a primacy to courts over Parliament.

These assumptions are contested within the legal profession itself. I will refer to one KC, Anthony Speaight, whose paper was published at the weekend by Politeia, of which I am research director. I therefore declare a special interest in the matter. Speaight explains the comparative novelty of the view, which he dates from Lord Bingham’s 2010 book, that the rule of law requires adherence to international law.

I am not a lawyer. I approach the question as a historian of British political and constitutional history. It is a history, by and large—and certainly in the era since the franchise was extended in the 19th century—of the interplay between Executive and Parliament, with the Government accountable through Parliament to the will of the people, even before the extension of the franchise. At the moment, both the Government and Parliament are intent on being accountable on the matter of curbing illegal immigration. But they are prevented by laws and the judiciary that operates them or, as in the case of the Strasbourg court, interprets them in a manner that takes from and does not protect their liberty, on which good law is based—the freely expressed will of the people who are governed.

On immigration, legal and illegal, the people have spoken loud and clear. They want Britain’s borders controlled and the flow of immigration curbed. Parliament has passed the laws to bring such control, but each Bill it brings forward meets a challenge in the courts. Is removal to Rwanda to be stopped not by a recalcitrant authoritarian monarch or an oligarchic, aristocratic, landowning Parliament, as in the past, but by a judiciary acting—I do not doubt in good faith—to give effect to a cocktail of legislation binding this country from an era whose laws are not our own and from times that are not our own?

There are practical limits to what a good Government can achieve. It is recognised, perhaps more clearly by voters than by rulers, that uncontrolled immigration facilitated by the obstacles now put by the courts, often—as in the case of illegal immigration through asylum claims—has consequences for the economy in terms of the budgetary costs. It puts demands that cannot be satisfied on Britain’s domestic arrangements—not just for processing claims but on every manner of the support that the UK’s people have over the centuries shown to those who, for whatever reason, come to make their lives in this country.

If our constitution is to survive the onslaught of legal challenge, the will of Parliament, reflecting the mandate of the voters, must triumph and, with it, the stability, transparency and accountability it has brought to Britain and its people, rather than be challenged on account of international or our own laws.

This country is no outlier. Across the channel, the political systems of western European neighbours are buckling under the political immediacy of uncontrolled immigration, each seeking to exploit or avoid the system to which in law they are bound under EU law, convention law and the mass of internal legislation to which these have given rise. They also have to take account of Schengen.

Take the case of France. Its political system was practically frozen for two years, haggling over an immigration Bill that many see as promising too little, too late. The problems with which it grapples are immense. Constitutional arrangements and stability are under threat at different levels. Departments are pitted against national powers, as in the recent stand-off with some mayors, who refuse to accept and look after unaccompanied minors because they have no ability to do so. At government level, against the ruling of the Strasbourg court, it is voters against the traditional systems of the political parties, the republicans and the socialists.

In this country, we are free to make our own laws. Other noble Lords will speak to their amendments on the same theme. My amendment aims to tighten the Bill and to pre-empt further challenge. As the Minister mentioned earlier, a core principle and aim of the Bill is to prevent further challenge to the workings of ordered, representative and accountable democracy. It aims to promote the aims of the Bill to delay illegal and unsafe crossings and deter the horrid loss of life, such as the death of a little girl of seven in freezing waters in the channel on Sunday night. I therefore beg to move.

Photo of Lord Frost Lord Frost Minister of State (Cabinet Office)

My Lords, I will also speak in favour of Amendment 17, tabled by my noble friend Lady Lawlor, to which I have added my name. As I said at Second Reading, I support the Bill. I am afraid that the Rwanda policy is a bit of a Heath Robinson arrangement. It shies away from some of the tough decisions needed to solve the problems. But I support the Bill because it is the plan we have, and we must hope it makes a difference.

It can certainly be improved. Most of the amendments discussed today would make it worse rather than better, and less effective rather than more effective. Amendment 17 is one of the few exceptions to that. It aims to provide a more clearly drawn Bill—one that can withstand challenges and fulfil its purpose more effectively, by making clear that no other legal provisions of any kind, whether in domestic or international law, can be used to frustrate the policy.

I do not want to repeat issues that have already been raised in Committee and discussed again at length today, but I will briefly explain why I support this amendment and then make one comment based on my involvement in recent years in the intersection between international and domestic law.

First, it is absolutely clear that this Parliament may legislate against international law, and indeed the Government may act in contravention of international law. As we have already heard, Clause 1(4) makes that clear and nobody is seeking to amend that. It is a long-standing, fundamental element of our constitution. It is not some sort of weird, UK-specific provision; there is good reason for the dualism in our system. First, otherwise Governments could act to create domestic law merely by signing an international treaty and thereby sidestep normal democratic processes. Secondly, it reflects the reality that international treaties are in practice very difficult to adapt to changing conditions because all the parties must agree to changes. It has been suggested by some noble Lords today and in previous debates that that is what should happen and that we should seek to renegotiate the international framework. The refugee convention, for example, has 149 state parties, including such well-known supporters of international law as China, Russia and Iran. Are we going to wait for them all to agree to amend this framework? We are clearly not, but if national Governments accept that they can deal with pressing national challenges only by renegotiating these treaties, they are in effect abandoning their duty to govern their own countries on matters of huge importance.

If a Government choose to act against international law, they may pay a reputational price, one that is often hugely exaggerated, as we have heard in the case of France. They may consider that price justified, depending on circumstances, but they must weigh it up. That is what the Government have done in this case. I worry that they have set the balance in the wrong place, setting supposed compliance with international obligations crafted in a different era on a higher plane than the core state function, which is one of the basic raisons d’être of a Government: controlling the country’s borders.

That is where Amendment 17 is designed to help. It is designed to deliver the goods that are invoiced, as it were, in Clause 1(4). That clause recognises that there is a right for Governments to act, and, if Amendment 17 were agreed to—I suspect it will not be—it would be the necessary action. It does what is necessary to make this policy work by closing off, as far as possible, the ability to challenge it and the ability of domestic or foreign courts to act against it. It does that with a goal of delivering what people in this country want: a Government who are actually in control of our borders.

I briefly turn to my second point. This is the third time that Parliament has debated compliance with international law. I had a small hand in two of the previous occasions: the United Kingdom Internal Market Act, where the relevant clauses that would have explicitly breached international law were withdrawn, and then the Northern Ireland protocol Bill, the whole of which was withdrawn. Now we have the Rwanda policy. It is not a coincidence that this keeps coming up. The UK is enmeshed in a set of international legal obligations that, in defiance of our constitutional traditions, in practice constrain the sovereignty of this Parliament and therefore the ability of any Government to act in the interests of the good governance of this country. While we were members of the EU, the huge constraints of that made those other legal obligations less visible, although no less intrusive. Now we are not in the EU, they are there for everybody to see.

Mark my words: this issue will not go away, I am afraid. I do not think the Government have quite faced up to it with the Bill. In particular, they have not faced up to the need to free ourselves from the ECHR. The only issue is: how much more time will be wasted? How many more constitutional traditions will we lose? How much more will democracy be circumscribed before government does what is necessary in making the top priority the democratic wishes of our citizens and the good governance of this country? That is why I support Amendment 17. It at least shows the necessary direction of travel, and it signals very clearly what will, in the end, be necessary to fix this problem.

Photo of Baroness Hoey Baroness Hoey Non-affiliated 7:30, 4 Mawrth 2024

My Lords, I will briefly support Amendment 17 in the name of the noble Baroness, Lady Lawlor. I will say a few words about the Northern Ireland perspective on this, because whether this will really apply to Northern Ireland has been discussed at various stages, as have the effects if it does not.

A number of things in the Safeguarding the Union Command Paper have already been exposed as not correct. I would have liked more specific language in proposed new subsection (5)(c) in the amendment and more specific mention of Section 7A of the European Union (Withdrawal) Act when we talk about international law. The noble Lord, Lord Frost, is absolutely right: this will not go away and, sooner or later, we will have a legal challenge, probably first in Northern Ireland, on Section 7A and whether this applies.

Last week, we saw that the effect of the protocol framework is to give EU law supremacy in Northern Ireland, even to the point whereby the legacy Act that was passed—whether you agreed with it or not—could be struck down due to inconsistency with EU law applying because of the protocol. The Government and the Minister need to clarify because there is a lot of confusion and—I will put this gently—misleading information about how Article 2 works.

In a Written Answer to me on the Rwanda Bill, the noble Lord, Lord Caine, claimed that the EU Charter of Fundamental Rights did not apply to Northern Ireland via Article 2 of the protocol framework, and this is directly at variance with the High Court judgment in Angesom and the High Court in Northern Ireland disapplying 10 provisions of the legacy Act last week. The Government cannot keep making claims that are so obviously not true and then get almost angry when we point out things about how it is working legally.

This is another example of the degree to which control over part of the United Kingdom has been genuinely surrendered by this Government while they pretend that it is not happening. Let us not forget that the Windsor Framework is very specific: paragraph 46 of Safeguarding the Union says that

“the Windsor Framework applies only in respect of … trade” and that Article 2 does not apply to immigration issues. I think we will find that this is not correct.

On the Rwanda Bill and the effect of Article 2 of the protocol framework, the proponents of the deal need to be clear. The Bill does not apply in the same way in Northern Ireland because Article 2 prevents it from doing so. The EU Charter of Fundamental Rights continues in Northern Ireland, and we should be honest about that. The protocol framework provision trumps domestic law and the wishes of our sovereign Parliament. Noble Lords should be aware that, whatever your views on this Rwanda Bill, we will find that this will ultimately end in another legal challenge. Whether the Bill has gone through or not, this will delay its implementation. I support the amendment, even if it does not specifically mention the Windsor Framework.

Photo of Baroness Chakrabarti Baroness Chakrabarti Llafur

My Lords, I will speak to Amendments 18, and Amendment 20 which I share with the noble Viscount, Lord Hailsham, the noble and learned Baroness, Lady Hale of Richmond, and the right reverend Prelate the Bishop of St Edmundsbury and Ipswich. I support the starred Amendment 21 in the name of the noble Lord, Lord German.

Amendments 20 and 21 both restore Human Rights Act protection in full for those subject to the Bill pending removal to Rwanda. The amendment of the noble Lord, Lord German, does this in even clearer language by not referring internally to last year’s immigration Bill but clearly stating for the lay reader that Human Rights Act protection is restored.

However, Amendment 18 is a revision of the amendment tabled in Committee by the noble Lord, Lord Kirkhope. It is a modest revision to address the concerns of some of his noble friends. He is not able to be here this evening. I begin with that one because it is so mild and in keeping with the thrust of the Bill, and it cannot be described as wrecking or disturbing the framework—even of a Bill I object to—in any way.

Noble Lords will know that, in Clause 3, most Human Rights Act protection is removed for these vulnerable people. The one thing that is left is the possibility of a declaration of incompatibility. Contrary, I fear, to some of the comments made by the noble Lord, Lord Clarke of Nottingham, and others, there is no possibility in our arrangements for the Supreme Court to strike down the Bill, were it to become an Act, because that is not the arrangement that we have in the elegant British constitutional compromise of the Human Rights Act and the balance it strikes between the rule of law, which is the bedrock of any democracy, and parliamentary sovereignty.

If an Act is declared incompatible, that declaration has merely moral and persuasive effect, and the Act continues in operation. That is why, with the greatest of respect to him, the noble Lord, Lord Clarke, was optimistic to the point of being wrong about that. What the noble Lord, Lord Kirkhope, came up with last time was just the suggestion that, if there were to be a declaration of incompatibility made by a higher court in relation to this legislation, there should be accelerated consideration in Parliament. That is it. I am flabbergasted by the Government’s response, that they would not even have a look at that most modest amendment from their noble friend—a former Immigration Minister, the noble Lord, Lord Kirkhope of Harrogate.

In the noble Lord’s absence, I have retabled the amendment, and it has been tweaked slightly to address some of the points made by his noble friends last time—and I really look forward to hearing what the objection is to that modest suggestion that he made, that, if is there is a declaration, Parliament should have an accelerated timetable, and Ministers should put their arguments to Parliament, not to a court, and Parliament should be given the opportunity to consider what to do next.

As for our amendments to restore Human Rights Act protection, that is another way of trying to restore the protection of the domestic courts. I say to the Government—and here the noble Lord, Lord Frost, has a point—that where they have left us with this Bill, if it passes unamended, is in a situation whereby the only court that will really be seized of these matters and have full jurisdiction over the safety of Rwanda and individual removals, from this country to that country, will be the European Court of Human Rights. Of course, interim measures will be ignorable by a Minister of State, but final orders of the European court will still be an international legal obligation, which is not removed by the Bill.

The noble Lord, Lord Frost, is the one who is telling the truth about the logic of where this Government are heading—really, for walking out of the European Court of Human Rights and walking out of the Council of Europe. We can follow Russia and be the next one out. At least the noble Lord is honest about that position, whereas the Government are trying to have it both ways. They have defenestrated domestic courts and gaslit the Supreme Court, but the only court that will be left for redress in any real terms will be the Strasbourg court. Then the Prime Minister can say, “I told you what I said about foreign courts”, because foreign courts will be all that is left, if that is what we now say about international courts. Goodness me, what terrible politics.

The noble Lord, Lord Frost, has had enough of international law, really—that is where he is coming from—but how on earth are we going to address in a unilateral way the pressing challenges of the 21st century, facing not just the United Kingdom but the world today, whether it is climate change, war and peace or the challenge of the ungoverned continent that is the internet, AI or robotics? It is just nonsense.

The noble Baroness, Lady Lawlor, does not seem to like law, whether it is domestic or international, I hope that she never has need of it and that she is never subject to the kind of abuse of power that sometimes people are subject to, and they need the protection of the courts.

Photo of Baroness Lawlor Baroness Lawlor Ceidwadwyr

I ask the noble Baroness to be clear about what I proposed and to what I was referring. I was referring to the laws of this country, made by the people of this country, with the support of the people of this country—good laws. Yes, they support international treaty law, when that is in the interests of this country, and other wider interests that arise, whether they are trade treaties or international agreements over other matters. It is wrong to suggest that I am not in favour of law; I am in favour of good law, but not politicised law, as it very often is, by the interpretations of the Strasbourg court of the convention.

Photo of Baroness Chakrabarti Baroness Chakrabarti Llafur 7:45, 4 Mawrth 2024

I am very grateful to the noble Baroness for her clarification. As I pointed out, and I think the noble Lord, Lord Frost, was nodding, the Strasbourg court is unaffected in its final jurisdiction by the Bill—it is our domestic courts that are defenestrated by this government policy.

I look to the noble Baroness’s amendment, which abrogates domestic laws. It refers to

“any provision made by … the Immigration Acts … the Human Rights Act” and other domestic statute, as well as

“any other provision or rule of domestic law (including any common law)”— in case Magna Carta still got a shout-out there—and, of course, international law. The noble Baroness has been pretty comprehensive in her approach to law in the amendment, whether domestic or international.

Of course, the noble Baroness says that it is only bad law that she does not like—but of course we all have our own views about good and bad law. Some of us believe that there should be referees in a democracy that is built on the rule of law, and the rule of law was invoked by the Prime Minister, even in his slightly odd Downing Street declaration on Friday.

Photo of Baroness Lawlor Baroness Lawlor Ceidwadwyr

May I clarify that my amendment is designed to promote the aims of the Bill to remove people who come to this country illegally to Rwanda and stop obstructions on that matter?

Photo of Baroness D'Souza Baroness D'Souza Crossbench

My Lords, perhaps I might add a few words to this debate on the Human Rights Act. I point out that this is the first time that I have spoken in this group. This amendment seeks to return the responsibility of interpreting the law to the courts and specifically underlines the unacceptability of a law on the statute book that is incompatible with domestic law, which of course includes the UK Human Rights Act. Unless and until the courts affirm that the Act conforms with the strictures of the Human Rights Act, it must not have any effect; to do otherwise would be to reject the rule of law, which is one of the pillars of the UK constitution.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Llafur

My Lords, I wanted to make a couple of brief points in support of Amendments 20 and 21. In Committee, the Minister, the noble and learned Lord, Lord Stewart, quoted at length the Lord Chancellor’s submission to the Joint Committee on Human Rights to justify breaching the universality of human rights. Clearly, the Lord Chancellor did not convince the Joint Committee on Human Rights, which in its majority report concluded that the provision

“threatens the fundamental principle that human rights are universal and should be protected for everyone”.

I still do not understand, given the concerns expressed by the JCHR, as well as the EHRC, the Law Society and the Northern Ireland Human Rights Commission, why this Government continue to try to argue that disapplication does not affect the principle of universality, which the noble and learned Lord waxed lyrical about in his speech.

Secondly, the noble and learned Lord promised to write to me in response to my concerns about the implications for the Windsor Framework and the Good Friday agreement—following on from the comments of the noble Baroness, Lady Hoey—and the Joint Committee on Human Rights’ request for a full explanation before Report as to why the Government consider Clause 3 to be consistent with these agreements. I thank the noble and learned Lord for his letter but, to echo what the noble Lord, Lord German, said earlier, I gently point out that it was sent at 3.24 pm this afternoon, after Report began. That really is not good practice, and it does not meet the JCHR’s request that a full explanation should be published before Report. It seems that the actual full publication will not be until some time on Wednesday, when we will be finishing Report.

I am not convinced that the answers to my questions would satisfy the JCHR, the Northern Ireland Human Rights Commission or the Human Rights Consortium of Northern Ireland. I am also not clear why the letter was not copied to the noble Baroness, Lady O’Loan, given that she originally challenged the Minister on this point at Second Reading. I am not going to pursue the matter here, except to point out that I do not think we yet have a satisfactory explanation of the interactions with and the implications for these agreements.

Photo of Lord German Lord German Democratiaid Rhyddfrydol

My Lords, I will speak to Amendment 21 in my name and also link that with Amendments 20 and 18. If Amendment 20 had had any space, I would have signed it as well, because it makes the same case. I will address Amendment 17 later and look forward very much to seeing how the Government deal with it in their response.

At the moment I will just repeat the universality issue of human rights—they are for all. I read once again the response from the noble and learned Lord, Lord Stewart of Dirleton, about legitimacy and I am sure we will hear it again today. But the underpinning of the Human Rights Act is that the protections should not be disapplied just to some people. Human rights are for all; if they become qualified, they are no longer human rights but only rights for some people. This violates the principle of the universality of human rights, which is why this amendment is in place.

It does not matter that this is directed at illegal migrants: once the Government do this for one group, they will choose—or could choose—to use it for other groups such as protesters.

Photo of Lord Murray of Blidworth Lord Murray of Blidworth Ceidwadwyr

Is the logic of the noble Lord’s point therefore that the Government would be better to repeal the Human Rights Act completely and revert to the pre-1998 situation?

Photo of Lord German Lord German Democratiaid Rhyddfrydol

No, we simply keep the Human Rights Act, which does the job we are seeking here. Naturally, of course, if the Government want to move and create a special group, as here—what they call “illegal migrants”—what about the other groups that might follow from it? It is very clear that there may well be an issue with protesters—groups that are not in vogue with the Government. It is a very dangerous precedent and this is a warning sign. Fundamentally, what we are seeing here is a chasing of short-term headlines that will have a significant consequence for people’s rights in this country.

Not content with arguments that they are having with the views of the ECHR and the UNHCR, the Government in the last seven days have now drawn swords with the United Nations Human Rights Council. Published last Friday, the council’s report said:

“Prohibiting courts and tribunals in the UK from applying and interpreting principles of domestic human rights law and international law would undermine the ability of the courts to protect all those under UK jurisdiction from violations of their human rights as provided under international law”.

It goes on to say that the Government should look at this matter again and the United Nations has offered to work with the UK Government on this matter. So, when he responds, will the noble Lord tell us whether the Government have read the United Nations Human Rights Council’s review and whether they are prepared to meet the council and discuss this matter further?

There is also a logical inconsistency in what the Government are doing; they cannot have it both ways. They want to rely on the international convention and jurisprudence in justifying the disapplication of the Human Rights Act, but they are then seeking to disapply the findings of that same court in relation to the same international convention with respect to the consideration of interim orders. You cannot have it both ways and the Government need to be clear on that matter.

All the comments that the noble Baroness, Lady Chakrabarti, made about Amendment 17 are absolutely accurate, but one thing worries me completely and that is the part of the amendment that basically takes away every law that this country might apply in this direction—domestic law and common law. For goodness’ sake, with common law as interpreted by the courts, I do not know how you find which parts of it you want to disapply. You have to be specific in what you say if you want to disapply anything of this nature. Amendment 17 looks to me like a complete wiping out, blanking out and blindfolding of every single possible piece of legislation that might stand in the way of this Government’s view, and that absolutely must affect the balance of the rule of law in this country.

I look forward to seeing how the Government will deal with that amendment, but I suggest they might need to consider how they move forward with no further disapplication of the Human Rights Act.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, I will speak quite briefly. The amendments in this group again demonstrate the threat to the domestic rule of law posed by this Bill. This is not the first Bill that threatens the Human Rights Act in this way, but the fact that it now seems almost commonplace for the Government to strip back human rights legislation does not mean it should go without objection each and every time.

There is much to object to in this Bill and Clause 4 is no exception. Each cut to the Human Rights Act matters and each piece of domestic law cut away in search of a quick political gain matters as well. I hope the Government listen to the arguments put forward by my noble friends and see sense.

I have to say I found this relatively brief debate quite refreshing. The noble Lord, Lord Frost, was perfectly candid with the House, and for a layman it was much easier to understand the political differences between the view articulated by the noble Lord and the view on the other side of the House. It was much easier to understand that difference than when I try to decipher the words of the Ministers when they respond to these amendments. Nevertheless, I look forward to what the Minister has to say.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, the noble Lord, Lord Ponsonby, has flung down the gauntlet and, on behalf of His Majesty’s Government, I am happy to pick it up.

I am grateful to all who participated in this debate and sincerely echo the words of the noble Lord when he said that there was a refreshing quality to this short debate. I think that the House articulated some important points and contrasting positions were properly and clearly laid out for the consideration of the House.

My noble friend Lady Lawlor opened with the support of my noble friend Lord Frost and I begin by saying, as I said at an earlier stage in the handling of this Bill, that it is important to recognise, as my noble friend did, that the levels of illegal migration to this country, perhaps to the whole of western Europe and other comparatively prosperous parts of the world, are not only placing enormous strain on us economically but straining the fabric of society and straining perhaps also public confidence in the ability of our courts and democratic legislatures to address problems.

I am grateful to both my noble friends for their broad support for the aims and objectives of the Bill. The noble Lord, Lord Frost, put it clearly and accurately in constitutional terms when he repeated that this Parliament may legislate in contravention of international law and that it is a long-standing element of our constitution.

The noble Lord also correctly identified that the high price to be paid for any such step is a matter of reputation. Reputations of countries, as of people, may be easily lost. I echo what he said about how it is difficult to adapt international treaties drawn up at different times and in different circumstances. The noble Baroness, Lady Chakrabarti, intervened on him; it seemed to me that he was not saying that he had had enough of international law but that he wished it to operate in its proper context.

The noble Baroness, Lady Hoey, made an extremely important point, which the noble Baroness, Lady Lister of Burtersett, touched on—the status of the law of the United Kingdom in one of its constituent parts as opposed to another. The Government are considering the judgment in the case of Dillon, to which the noble Baroness referred, in relation to Article 2 of the Windsor Framework and all the available options, including appeal against that decision, very carefully. Our position is that the Bill will apply in full in Northern Ireland and we are clear that nothing in the Windsor Framework, including Article 2, or the trade and co-operation agreement affects the Bill’s proper operation on a UK-wide basis—a matter very important to this Government.

The Government have always been consistent about the position of Article 2. For it to be engaged, it would be necessary to provide evidence that the alleged diminution of rights relates to rights set out in the relevant rights, safeguards and equality of opportunity chapter of the Belfast/Good Friday agreement, concerns a right that was given effect in domestic law in Northern Ireland on or before 31 December 2020 and occurred as a result of the United Kingdom’s withdrawal from the European Union. Nothing in the Bill, which is about matters of asylum and immigration, engages any of those issues. As such, it would be incorrect to claim that its provisions are within the scope of Article 2.

The noble Baroness, Lady Lister of Burtersett, referred to the importance of speed of communication with letters written after earlier stages—I see the noble Lord, Lord Cashman, nodding his head. I apologise to the noble Baroness and to others in the House who were recipients of letters. I signed the terms of the letter off, however inadequate she may ultimately have found it, on Saturday afternoon.

The amendment tabled by my noble friend Lady Lawlor, with the support of the noble Lord, Lord Frost, would limit legal challenges. On one view, it may be seen as undermining the safeguards necessary to ensure that this Bill and the Illegal Migration Act are compatible with the United Kingdom’s international obligations. That Act and this Bill include provision for a person subject to removal to a safe third country to make a limited class of suspensive claim on the ground that they would face a real risk of serious and irreversible harm if they were removed. The threshold for serious and irreversible harm is high and the harm in question must be both imminent and permanent. This reflects the test applied by the European Court of Human Rights.

This legislation provides that a court may grant interim relief which prevents removal to Rwanda only where it is satisfied that there is a real, imminent and foreseeable risk of serious and irreversible harm. These measures are necessary to ensure compatibility with the European Convention on Human Rights and ensure that the grounds by which people can challenge removal are appropriately narrow. As my noble friend Lord Sharpe of Epsom and I have set out from the Dispatch Box on other amendments—I will come back to this—the Bill reduces unnecessary challenges while preserving the principle of access to the courts where an individual may be at real risk of serious and irreversible harm. As a whole, the limited availability of domestic remedies maintains the constitutional balance between Parliament’s authority and the powers of our courts to hold the Government to account.

This country has a strong track record on rights, liberties and protection of human rights internationally. We are committed to enhancing that record. Some of the provisions in the Bill are novel, though not without precedent. Noble Lords will know that Australia has undertaken a similar approach with Nauru and we know that other countries are exploring similar models. For example, Italy has announced a partnership with Albania. The Government are satisfied that the Bill can be implemented in line with the convention rights, so I ask my noble friend to withdraw her amendment.

The theme of the Bill, to echo the words of my noble friend Lord Howard of Lympne, who is no longer in his place, is accountability. It addresses the concern that my noble friends advanced to the House that illegal migration on the scale at which we currently experience it, notwithstanding the successes we have recorded and which I spoke about on an earlier group, is straining both our ability to fund the phenomenon of illegal migration and the electorate’s faith in both the courts and this place.

Removing Clause 3 entirely and disapplying Section 1(5) of the Illegal Migration Act, as Amendments 20 and 21 seek to do, would mean that the Human Rights Act applied in full to this legislation, as well as the Illegal Migration Act, in relation to removals to Rwanda. This would increase the risk that a person challenging their individual removal would frustrate the entire scheme by bringing systemic challenges on human rights grounds. It would also increase the risk of litigation, asking the courts to interpret the Bill in a way that is inconsistent with the clear intent of Parliament, undermining Parliament’s conclusion on the safety of Rwanda being accepted by the domestic courts.

Section 3 of the Human Rights Act requires the courts to interpret the meaning of legislation to make it compatible with convention rights so far as it is possible to do so. Disapplying Section 3 confirms and ensures that the provisions will be interpreted in accordance with the usual principles of interpretation, primarily by applying the ordinary meaning of the provisions. This follows the approach taken in the Illegal Migration Act, which the amendment from the noble Baroness, Lady Chakrabarti, also seeks to disapply. Disapplying Section 2 of the Human Rights Act ensures that considerations about the Rwanda treaty and the safety of Rwanda are firmly located with Parliament, providing that element of accountability which my noble friend Lord Howard of Lympne called for so eloquently. Taken together with the rest of Clause 3 and the Bill as a whole, the provision makes it clear that appropriate deference should be given to Parliament’s sovereign and final determination in the matter.

Clause 3 also disapplies Sections 6 to 9 of the Human Rights Act 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. 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 is targeted at preventing people frustrating removal by bringing systemic challenges in our domestic courts.

The disapplication of Sections 7 to 9 of the Human Rights Act 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.

I turn to Amendment 47, tabled by the noble Baroness, Lady D’Souza, and Amendment 18, tabled by the noble Baroness, Lady Chakrabarti. These amendments are designed to expand the current process under Section 4 of the Human Rights Act, and to place pressure on the Government to present legislative proposals to Parliament. In doing so, they seek to oblige the Government to respond to declarations of incompatibility in a certain way. That is expressly—

Photo of Baroness Chakrabarti Baroness Chakrabarti Llafur 8:00, 4 Mawrth 2024

I think a closer reading of Amendment 18 will demonstrate that it is not ensuring that the Government respond in a certain way. They can respond favourably or negatively to the declaration; they just need to come to Parliament and have the debate.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

In her address today and I think at an earlier stage, the noble Baroness described the functioning of declarations of incompatibility in Section 4 of the Human Rights Act 1998 as an elegant compromise. I freely agree that it is an elegant constitutional compromise, which ultimately reflects parliamentary sovereignty, which lies at the very heart of our processes and constitution.

As detailed in Committee, Section 4 of the Human Rights Act in relation to the system of declarations of incompatibility is designed to strike an appropriate compromise between scrutiny of human rights and parliamentary sovereignty. Section 4 does not oblige the Government to take any specific action as a result of a declaration of incompatibility, and Section 4(6) expressly does not allow a judicial ruling to prevent the operation and enforcement of legislation passed by Parliament.

The operation of the section is to afford the Government the opportunity to reflect on matters, to listen to concerns brought by the courts and to act upon them as they see fit. I do not consider it necessary to adopt the amendment which the noble Baroness has tabled and argued for. I do so purely on the basis that the history of the application of this section, in my view, respectfully, shows it to be working.

The noble Baroness, Lady D’Souza, tabled Amendment 47, seeking to undermine Section 4(6) of the Act by providing that a declaration of incompatibility results automatically in the legislation ceasing to have effect. It seeks to give such declarations a binding character, and, as I said a moment ago in relation to the noble Baroness’s point, that is contrary to what those provisions were designed to be and removes discretion or oversight as is currently afforded to the Government and Parliament as to what action would be most appropriate to take in the circumstances.

It has been the accepted practice since the introduction of the Human Rights Act for the Government to address such declarations either through primary legislation or by way of a remedial order. Again, given how well the declaration of incompatibility procedure is working and has worked in the past, I respectfully submit that there is no reason for us to innovate on that basis. These amendments are therefore not only unnecessary but inappropriate in their attempt to legislate for parliamentary procedure in this manner. The declaration of incompatibility procedure works well to strike the right balance, and there is no reason to upset it.

I was addressed on the subject of the remarks made by the Lord Chancellor to the Joint Committee on Human Rights. As your Lordships have said—it was predicted that I would refer to this again, and I will—the Lord Chancellor recently set out in his letter to the Joint Committee that while

“it is a fundamental tenet of modern human rights that they are universal and indivisible … it is legitimate to treat people differently in different circumstances”.

For example,

“a citizen may legitimately be treated differently, and have different legal rights from, a non-national”, recognising that there is a difference between a citizen and a non-national. The convention,

“as interpreted by the case law of the ECtHR … recognises this principle” in full.

“There is nothing in the … 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”.

As I say, the provisions in the Bill, while novel, are not without precedent. We are satisfied that the Bill can be implemented in line with the convention rights. I therefore ask noble Lords not to press their amendments.

Photo of Baroness Lawlor Baroness Lawlor Ceidwadwyr 8:15, 4 Mawrth 2024

I thank my noble friend the Minister; I am very grateful to him for his courteous and thoughtful reply on my amendment. I also thank all noble Lords who spoke in this debate. As others have commented, we have had a very refreshing debate, and it has been very spirited too. We all share a commitment to and a respect for the rule of law, but we differ over the interpretation we give to that, and the weight we give to the different parts of our constitutional powers: government, the judiciary and Parliament.

I especially thank my noble friend Lord Frost for reflecting on the continuing tension between laws made in this Parliament on the express wish of the people of this country, which command popular support, and laws made elsewhere, very often originating from different times to apply to different circumstances. I understand that my noble friend the Minister is keen to reject this amendment, but I hope he will reflect further on the aims of this measure: to prevent legal challenge to removing to Rwanda people who come to this country illegally, and to ensure that we operate a deterrence to stop the ghastly tragedies that we see too often in the channel. I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

Amendments 18 and 19 not moved.

Clause 3: Disapplication of the Human Rights Act 1998

Amendments 20 and 21 not moved.

Clause 4: Decisions based on particular individual circumstances