Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Howard of Lympne and Lord Hannay of Chiswick

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?

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Howard of Lympne and Lord Hannay of Chiswick

Committee stage
Monday 12th February 2024 Lords Chamber

[Lord Howard of Lympne (Con)]

As I said in answer to the noble Lord, Lord Kerr, it is not simply a question of seeking advice from the United Nations High Commissioner for Refugees. The amendments clearly state that, unless positive advice is obtained, no one can be removed to Rwanda. So the decision will no longer be the decision of the Secretary of State; it will be the decision of the United Nations High Commissioner for Refugees. That is the point. It is not just advice; it is advice which would be binding, according to these amendments, on the Government.

[Lord Hannay of Chiswick (CB)]

I thank the noble Lord for that point. He interrupted me before I got to the answer to his question—but that is fine. I had been going to say that the doctrine, according to the noble Lord, Lord Howard, is that every member that has signed the refugee convention—well over 150, I think—and ratified it, including our sovereign Parliament, has the right to reinterpret the convention as it wishes. You have only to stop and think for one minute what that implies to realise that it implies complete chaos and the law of the jungle. If all 150-plus members of the United Nations refugee convention are able to stand up and say, “Well, actually, this is what I think the convention means, and I don’t care a damn what the High Commissioner for Refugees says”, then we are living in chaos. It is to avoid that that these amendments are being put forward.

I strongly support the arguments of the noble Baroness, Lady Helic, who expressed extremely eloquently the reason this country has a real interest in paying attention to these matters.

European Union (Withdrawal) (No. 6) Bill

Debate between Lord Howard of Lympne and Lord Hannay of Chiswick

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Howard of Lympne]

With respect to my noble friend, I did not say that. I repeat what I said: peace in western Europe after the Second World War owed more to the Soviet Union than it did to the European Union. I did not say that the Soviet Union’s threat was the only factor. Of course there were other factors. Many of the things said in questions to me in the past few minutes have considerable truth to them, but it is ridiculous to ignore the extent to which peace in western Europe was a consequence of the existential threat that the western part of the continent faced from the Soviet Union to the east. I would like to proceed to consider the Bill.

[Lord Hannay of Chiswick (CB)]

I do not intend to prolong this historical debate, other than to say to the noble Lord that he is falling into the trap that an earlier speaker warned us about—he is being too Manichean. He is juxtaposing the Soviet Union threat, the NATO response and the European Union. It is all of them together. It is because they are all working together to common aims that we have managed to come through better. When war broke out in Europe again in the 1990s, in the Balkans, the longer-term response to that has come mainly from the European Union. Surely we can move away from this distorted view of history and accept that the European Union has played an integral part in our security and prosperity but not the only part.

[Lord Howard of Lympne]

I do not disagree with the noble Lord. His intervention establishes that we have made some progress because, in common parlance, the European Union is frequently given the entire credit for creating peace in western Europe after the Second World War but I do not believe that to be true.

European Union (Withdrawal) Bill

Debate between Lord Howard of Lympne and Lord Hannay of Chiswick

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, I have great respect for all the proposers of this amendment. It makes me all the more astonished that they should put forward a clause which could, and very probably would, lead to not one but several constitutional crises. I am reluctant to draw the conclusion that that is the purpose of the new clause, that that is the intention behind the new clause, that so determined are its movers to thwart the will of the British people to leave the European Union that they wish to provoke a constitutional crisis, but that is the perilous outcome to which this new clause opens the door.

My noble friend made a very fine speech, but the new clause which stands in his name goes far beyond the fine sentiments which he addressed. I shall concentrate on just two of its consequences. First, the new clause gives your Lordships’ House a veto on any agreement which the Government have reached and which the other place has endorsed. It is instructive to compare the wording of subsection (1)(b) of the new clause with subsection (3). We have not heard very much so far from the movers of the new clause about its precise terms, so it falls to me to draw your Lordships’ attention to those terms.

[Lord Hannay of Chiswick]

The noble Lord is giving us the speech he gave us in the Article 50 Bill, when it was indeed the case that the amendment then moved did not differentiate between the Lords and the Commons. If he looks at this amendment with care, he will see that there is a very clear differentiation and that it is only the Commons that has the right of decision; we have the right of consideration.

[Lord Howard of Lympne]

If the noble Lord waits until I have concluded my remarks, I think he will be better able to form a judgment about how careless I have been.

Subsection (1) of the new clause provides that the Government may conclude an agreement only if the draft has been approved by the House of the Commons and has been subject to the consideration of a Motion in your Lordships’ House. The Minister may have something to say about the circumstances in which such a Motion might be considered. It is not a point I intend to dwell on, although there is clearly a possibility that your Lordships may vote not to consider such a Motion.

Subsection (3) of the new clause provides that a withdrawal agreement may be implemented only if it has been approved by an Act of Parliament, and subsection (7) provides that that Act must have received Royal Assent by the end of next January, so the new clause expressly contemplates a situation in which the Government have reached an agreement with the European Union, the House of Commons has approved that agreement, but your Lordships’ House, simply by delaying the passage of the Bill beyond next January, could defy not only the will of the people but the will of the elected Chamber of Parliament. If that would not provide a constitutional crisis, I do not know what would.

The new clause goes on to provide a prescription about what would happen if such a situation were to arise. It proposes that the negotiations should be taken out of the hands of the elected Government of our country and be decided on a resolution of the other place and the consideration of a Motion in your Lordships’ House. I had the great privilege of serving in the other place for 27 years—not quite as long as my noble friend, but almost—and I have the greatest respect for it, but it is not a negotiating body. I do not believe it has ever taken that role upon itself, I do not believe it wants it and nor should it have it. I need hardly add that if this new clause were to become law, the situation would arise that it would immeasurably weaken the Government’s negotiating position with the EU and would make our Government and our country a laughing stock.

The truth of the matter is that, while a great deal has been spoken about the House of Commons—my noble friend talked about the House of Commons—at the end of the day the House of Commons will have its say and the House of Commons will have its way. The House of Commons does not need to be given any guidance by your Lordships’ House as to how it should go about its business. There are many ways in which the House of Commons can achieve that objective, and the House of Commons will do so.

This new clause is thoroughly and fundamentally misconceived. I am afraid that it illustrates the appalling lengths to which die-hard remainers are prepared to go to achieve their aim, and I urge your Lordships to reject it.

European Union (Notification of Withdrawal) Bill

Debate between Lord Howard of Lympne and Lord Hannay of Chiswick

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Howard of Lympne]

There are many occasions when this House can bring forward new arguments and a fresh perspective on a situation, and genuinely make the other place think again. I do not believe that this is one of them. The question we must ask ourselves today is: how can we best help the EU nationals resident in this country? The best way is to bring the uncertainty of their position to an end as quickly as possible and the best way to do that is to pass the Bill and activate Article 50 as quickly as possible.

[Lord Hannay of Chiswick (CB)]

My Lords, on the issue of new facts, does the noble Lord agree that one new fact is the communication from all the expatriate groups across the European Union that they wish the House to pass this amendment because they believe it is the best way to secure their position?

[Lord Howard of Lympne]

I am sure many of those groups made their views known when the matter was debated in the other place. Though of course their views need to be taken into account, I do not see that as tantamount to a new fact.

--- Later in debate ---

[Lord Howard of Lympne]

I think that I have already answered that question. I quite accept, as I said to the noble Lord, that it is proper for Parliament to ratify an agreement that has been reached—or, indeed, reject it. That is what Parliament’s role should be. That is in accordance with what the Prime Minister has said. What I am objecting to is subsection (4) of the proposed new clause, which could have the effect that I have identified and would lead to an extremely unsatisfactory and unconstitutional position.

[Lord Hannay of Chiswick]

Has the noble Lord given proper consideration to a circumstance in which the Prime Minister and the Government wish to throw in the towel in the negotiation? It cannot possibly be ruled out because, as I understand it, his right honourable friend the Minister responsible for Brexit has just told the Cabinet that it might well happen. So why on earth is it wrong to put in the Bill that Parliament should have the right to say yes or no to such a decision?

[Lord Howard of Lympne]

Well, for all the reasons that I have given. I do not want to repeat my speech to the noble Lord. The effect of the proposed new clause, the effect of giving Parliament the ability to say, “You cannot bring the negotiations to an end”—not just once, but twice or three times, or four times or any number of times; that is all in the proposed new clause—is to intrude Parliament into the negotiating process. It is wrong, it is improper and it should not be in the Bill.