Safety of Rwanda (Asylum and Immigration) Bill

Lord Kirkhope of Harrogate Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Scriven (LD)]

My Lords, I am again a poor substitute for my noble friend Lord German. This group is a suite of amendments that look at disapplication of not just the Human Rights Act but whole swathes of domestic law—I know that the Human Rights Act is domestic law. Some Members of your Lordships’ Committee may contest that, but it is a sovereign Act of this Parliament. We must always remember that it is not something foisted on us by any international body or court.

I will start with what this raft of amendments is about. Let us take a look at the Bill, starting with Clause 2(5), which is a “notwithstanding” clause. In layperson’s terms, it means that if an individual decides that Rwanda is not a safe country in their particular case, a court or tribunal of this country can no longer decide whether Rwanda is a safe country and an individual cannot bring a complaint that they are being removed to Rwanda, or any claim that the Republic of Rwanda will not act in accordance with the Rwanda treaty—not that they will not enforce the treaty. Everything could be in place, but Rwanda will not act in the spirit of the treaty.

Furthermore, the “notwithstanding” clause says that the court can look at any provision made under any immigration Act. Like many other noble Lords, only a few months ago I debated the Illegal Migration Act for hour after hour and was told categorically by the Government Front Bench that it would stop the boats. So here we are, with another piece of legislation, but that piece of legislation cannot be enacted or looked at by the courts or an individual. Neither the Human Rights Act—I know that Clause 3 is about the disapplication of the Human Rights Act—nor

“any other provision or rule of domestic law (including any common law)”

can be used by anybody who has arrived by an illegal route to protect them from being removed from this country to Rwanda, and nor can

“any interpretation of international law by the court or tribunal”.

This clause usurps the role of domestic courts. Let us be clear: the clause is not about international law or treaties. It usurps the role of domestic courts by not permitting them to do their job, tying their hands by not permitting them to apply key elements not just of the Human Rights Act but of any domestic law. Our courts and tribunals would not be able to consider claims about the general safety of Rwanda and grant interim remedies to prevent the Executive acting unlawfully.

More generally, it may be worth thinking about what the Government are scared of. If this treaty deals with every single issue that the Supreme Court said was going to happen, surely the organisation that should judge whether that is the case is the Supreme Court. It should determine whether its judgment and concerns have been addressed. So what are the Government scared of? I ask the Minister very carefully: if the treaty is enacted and all provisions are enshrined in Rwandan law and in the practice of administration in Rwanda, why are the Government scared of putting it before the court to decide whether Rwanda is a safe country? I am not a lawyer, but logic would dictate that that is what should happen: the courts should determine that the Supreme Court’s concerns have been addressed.

This is a very worrying symptom of what I call a creeping executive authoritarianism, or what the father of the noble Viscount, Lord Hailsham, called the “elective dictatorship”. It seems the Government feel that they have no constraint on their processes or decisions and that the legality of their power cannot be challenged in the courts. That is exactly what those clauses do: they take away the rights of individuals to use our domestic law to determine whether they are safe to go to Rwanda.

On the view that this is about the disapplication of only the Human Rights Act, it needs to be absolutely understood by your Lordships’ Committee, and those outside, that this is a complete disapplication of most of the domestic law of this land. That is what is happening when determining whether, in very limited cases, an individual can go before the courts or tribunals.

I know that the noble Lord, Lord Kirkhope of Harrogate, has a quite interesting amendment in this suite on Section 4 of the Human Rights Act and its disapplication. I will listen carefully not just to the noble Lord introducing his amendment but particularly to the Front Bench’s reply to the interesting suggesting within that amendment. I also look forward to hearing what I am sure will be the very interesting thoughts of the noble Viscount, Lord Hailsham, who added his name to the Clause 3 stand part notice. I look forward to all noble Lords’ contributions to the debate on this group.

Let us be clear: this is about not just the disapplication of the Human Rights Act, which is domestic law, but the disapplication of whole rafts of domestic law in the very limited cases where somebody can put their application about the safety of Rwanda before a court or tribunal. I beg to move.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I will speak to my Amendment 33 to Clause 2. I acknowledge the support of the right reverend Prelate the Bishop of Chelmsford, who is in her place and may well wish to contribute later. The amendment addresses a critical aspect of our commitment to upholding human rights and the rule of law, ensuring that our legislative process remains transparent and, as was referred to recently by my noble friend the Minister, accountable and responsive to judicial declarations of incompatibility under the Human Rights Act 1998.

Before I delve into the specifics, I note that, as I stated at Second Reading, there are many tools available to our Government to alleviate the present pressures on the asylum system, but we need to know which tools to use and how to use them properly. I am pleased to take the opportunity to commend the progress made by the Government in reducing the number of small boats crossing the channel by using return agreements, dealing with backlogs, bilateral co-operation and other measures, including employing more staff and training them to interpret the criteria for granting asylum rather better than has been the position previously.

All these things have been done and are very important, but return agreements dealing with backlogs and bilateral co-operation are important. Of course, there is an issue on the questionable policy of sending asylum seekers to Rwanda for processing and permanent settlement. I am concerned that there is—in some quarters, anyway—some fixation which we are having to deal with in the Bill and in these amendments, a fixation which I think is unnecessary. This amendment seeks to rectify a significant issue that arises if a court declares—I emphasise the word “if”—our legislation incompatible with convention rights, protected by the Human Rights Act 1998.

As it stands, there exists a potential for delay in addressing such declarations, which could undermine the effectiveness of our legal system, and indeed further erode public trust in our commitment to human rights. I hope that what I am going to suggest will be helpful to the Government. It is certainly not an attempt to wreck the Bill or slow it down in any way, but to address this concern, the amendment proposes that a Minister of the Crown should lay before each House of Parliament a statement under specific conditions, which are, first, if

“a court makes a declaration of incompatibility, under section 4 of the Human Rights Act 1998”,

and, secondly, if

“the Minister has not laid a draft remedial order or a remedial order before Parliament, under section 10 of the Human Rights Act 1998”.

This would ensure timely action and prevent unnecessary delays in addressing the human rights concerns that may be raised by the judiciary.

The statement required by the amendment must provide clear reasons for the Minister’s proposed course of action. Specifically, it must address whether Ministers consider there are compelling reasons for proceeding with the policy, should a declaration of incompatibility be issued, and whether they intend to make a remedial order in response to such a declaration. This transparency ensures accountability and allows Parliament, including our own House, to scrutinise the Government’s decision-making process. I know that many noble Lords have raised this as a major concern.

Furthermore, the amendment sets a strict timeline for Ministers to lay the statement before Parliament, requiring it to be done within 28 days of the court’s declaration of incompatibility. Additionally, within three sitting days of laying the statement, a Motion must be moved by a Minister of the Crown for debate in each House. The Motion must require the House to consider the statement laid before Parliament and to indicate whether it agrees with it. This ensures that Parliament promptly considers the Minister’s proposed course of action, provides an opportunity for debate and scrutiny and, importantly, ensures that the voice of Parliament is heard. We have a duty to ensure that Parliament is engaged in such circumstances. In essence, the amendment aims to prevent delay in addressing judicial declarations of incompatibility and promotes a more responsive and accountable legislative process.

This amendment not only strengthens the framework but emphasises the importance of giving Parliament—including our House—a greater role, should the courts offer a declaration of this kind. I hope that it will be considered carefully by my noble and learned friend the Minister, and not rejected out of hand.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I find it a little odd for the noble Baroness to say that she is criticising the Government for disapplying various provisions of the Human Rights Act, yet criticising us for not, as it were, expressly disapplying Section 4. As we have heard, the reason for not disapplying Section 4 is clear; namely, it demonstrates that the Government are complying with their obligations on the international plane to provide a right of a remedy under Article 13 of the treaty.

[Lord Kirkhope of Harrogate (Con)]

I am sorry, but as I listened to the noble Lord, I was getting the impression that he was agreeing with my amendment to a large extent, except perhaps for my suggestions that we move the process on a bit more and improve the accountability with this House. Is that not the case? He said that my amendment serves no purpose; I think that it serves a very valuable and important purpose to give reassurance to this House that Parliament will have some say on, and be involved in, these processes; otherwise, I think that he is trying to minimise the impact of these matters and the way in which we can look at them.

[Lord Murray of Blidworth (Con)]

I am afraid that the amendment still has no purpose. The point is, as I hope I demonstrated to your Lordships’ Committee, that the decision as to whether and how to act on a declaration of incompatibility is clearly set out in the Human Rights Act, and it rests with a Minister of the Crown. This Parliament does not have a role other than to consider, under the procedure for a remedial order, whether a decision is taken to lay one. That is the law as it stands and as it should be, so this amendment is unnecessary.

Northern Ireland Protocol Bill

Lord Kirkhope of Harrogate Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Kirkhope of Harrogate (Con)]

My Lords, I was not sure whether to speak in this debate on a Bill which I simply do not like, but after all the efforts to conclude the internationally acclaimed Good Friday agreement and then the withdrawal agreement and protocol with the EU, in which some noble Lords were involved, I was very disappointed to see this Bill being presented. My noble friend Lord Frost, who was much involved, describe the withdrawal agreement and protocol at the time as a carefully negotiated agreement. In the light of some of his remarks earlier this evening, I think he perhaps might want to revisit that quotation, but I think it probably was. The then Prime Minister, my right honourable friend Boris Johnson, called it

“a great deal for England, Scotland, Wales and Northern Ireland”,—[Official Report, Commons, 19/10/19; col. 591]

but we are now trying to unpick it just as our negotiators, to whom I pay full tribute, are hoping to achieve the flexibility to alleviate the known concerns of all the communities in Northern Ireland, as well as the interests of the EU, the Republic of Ireland and the USA.

In considering the effects of our contributions today and bearing in mind the sensitivities, I hope nothing I say or others say will have harmed the progress being made. It would have been better if we had held off while the process is so active. However, we have had the chance to speak on the proposals in the Bill, and although it is inevitable that what I say will involve a lot of repetition of remarks made by others, I hope the Government will take note of all the remarks.

The Bill is unnecessary. Its provisions and the extra powers it gives to the Executive are unnecessary. At Second Reading in the other place, a long discussion took place as to whether necessity kept this measure within our international law obligations. The doctrine of necessity—noble Lords have heard from distinguished lawyers—requires a solid evidential base showing “grave and imminent peril” as a reason for such a measure. That, I would say, was not present at the time when the Bill was in the other place, and it certainly is not present now. To meet that test, there must be no alternative available. Here there is an abundance of alternatives, including the negotiations and Article 16.

In the other place, my right honourable friend the Prime Minister, then the Foreign Secretary, cited the refusal of the EU to co-operate as evidence of necessity. That was, and is, in my view, incorrect. Otherwise, how are we in the current situation? The Government cited the opinion of mainly outside lawyers to support their proposals that seemed to ignore the views of their own First Treasury Counsel. If breaking international law is not of concern, then how could we lecture others such as Bolivia, Sri Lanka, Myanmar, South Sudan, Ethiopia and, of course, Russia and China?

What about Article 16? As my right honourable friend Theresa May said in the other place,

“Article 16 does not justify this Bill … Article 16 negates the legal justification for the Bill.”—[Official Report, Commons, 27/6/22; col. 63.]


I agree. As long as we are negotiating, we do not currently need either Article 16 or this Bill.

My second concern is with regard to the extensive extra powers given to the Executive by the Bill. This is not the first time we have debated this trend. Trying to exclude proper parliamentary scrutiny of sensitive and important matters is undesirable. This Bill would have Henry VIII seething with envy. No less than 15 of the 26 clauses give the Executive new powers to amend Acts of Parliament, disapply part of the Northern Ireland protocol and increase secondary legislation to avoid scrutiny, and Clause 19, in particular, allows for a new deal with the EU without any primary legislation. This is a serious overreach by the Executive and our Ministers.

The current negotiations must be carried on in a calm manner, while recognising the fears and concerns of all those communities in Northern Ireland, which I greatly respect. The UK must retain its position as a trusted and responsible power in the world. Leading roles in the G7, the United Nations and with our European and American friends can exist only with adherence to a rules-based system, in which we, this country, set the example. There is great potential for this country, but the rule of law must always prevail.

Royal Commission on Criminal Justice

Lord Kirkhope of Harrogate Excerpts

Wednesday 3rd June 2020 Lords Chamber

[Lord Keen of Elie]

The manifesto commitment was that the royal commission would address prosecution, trial, sentence and parole, and I have no doubt that within that it will give consideration to the length of sentences and the need for rehabilitation.

[Lord Kirkhope of Harrogate (Con)]

While I understand that my noble and learned friend cannot talk directly about terms of reference for the commission so far, the original idea was that it would look at the efficiency and effectiveness of the criminal justice process. Does he agree that to be effective in the eyes of the public, it must also be local? The closure of many magistrates’ courts has caused considerable problems in local access to the criminal justice service. Can he ensure that the terms of reference look again at how ordinary members of the public who are involved can get access to the system?

European Union (Withdrawal) Bill

Lord Kirkhope of Harrogate Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Cashman (Lab)]

This amendment is in my name and that of my noble friend Lady Kennedy. I agree wholeheartedly with what has just been said by my noble friend Lady Hayter. It seems to me we need the protections on the listed exclusions not least because the Government are intent, following Monday evening, on not retaining the Charter of Fundamental Rights or the right of action on the general principles of EU law. My noble friend Lady Kennedy and I merely want to make the important and explicit amendment that “human rights protection” is included. I feel there is no need for me to say any more than that.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I support the noble Baroness, Lady Hayter, on Amendment 21. I do not intend in my remarks to spend a lot of time with the actual list at the bottom of the amendment, because she put across very well the need to protect in particular certain things which do credit to this country and which will give us advantages in the future, whatever the status of this country is.

I certainly felt my optimism rising today as I heard the reactions of my noble and learned friend the Minister to the whole question of how EU retained law will be protected in future. He seemed to be suggesting at one point that there might be some sort of hybrid approach. I am not sure what that might result in, but in the meantime we are in a situation where, as I am sure noble Lords are aware, the law, however it is made, comes in various forms. It comes in various packages, some of which are packages of principle of law, while other parts of the packages are the levers or the actual technical means by which laws are implemented.

That is why the amendment specifically states that primary legislation should of course be the main means by which any modification could take place, but also that subordinate legislation would be appropriate in certain cases to deal with technical areas that are not appropriate for a primary approach. Indeed, it is very sensible that even subordinate legislation be dealt with in a manner that allows it to have the support and security afforded to the principal legislation itself. I think there are certain doubts—to say the least—about the list of retained EU law. We have had several debates today and previously about what is actually meant by retained EU law, and we need greater clarity as to precisely what components make up this category.

There was a debate in another place on a very similar area and amendment. It was a very strong debate, to which a considerable number of people contributed, and real concerns were expressed about the way in which retained EU law, however it is finally listed, could be supported. As I said, I will not spend any time on the main areas that have been listed, but the Government have given many assurances—which I welcome—that the main areas of retained law will be specially protected and that they regard them as terribly important. That is only being affected, in a negative sense, by remarks from legislators who in the main do not form part of our Government but who nevertheless have been making statements indicating that, almost with immediate effect from its arrival, the retained EU law will be either tampered with or destroyed. That has meant that a considerable number of people currently affected by the law are seriously worried about what might happen to those areas that are so important to our public and social life. The reasons for this amendment are to make sure that the Government are aware of the concerns and to ask them to do their best to put in place the security necessary to protect these areas on an ongoing basis. I support the amendment.

[Lord Pannick]

My Lords, I too support Amendments 21 and 22, which would restrict the powers of Ministers to modify retained EU law by secondary legislation in the contexts that have been mentioned: employment rights, equality rights, health and safety, consumer standards, environmental standards and human rights. All of those are vital areas. It is important in considering these amendments to recognise the breadth of the secondary legislation powers that are being conferred on Ministers under the Bill—and not just by Clause 7, to which we will come next week or the week after. The point is made by the organisation ClientEarth in a helpful opinion, which I commend to the Committee, written by Pushpinder Saini QC. He draws attention—and I draw the attention of the Committee—to some provisions that are tucked away in Schedule 8 to the Bill, on page 55. Paragraph 3(1) refers to existing powers in legislation to make subordinate legislation. It says:

“Any power to make, confirm or approve subordinate legislation which was conferred before exit day is to be read, on or after exit day and so far as the context permits or requires, as being capable of being exercised to modify … any retained direct EU legislation”.


That is a remarkably broad power. On page 56, at paragraph 5(1) of Schedule 8, there is a similar power for any future power to make subordinate legislation. Of course, the word “modify” has a very broad meaning, because it is defined in Clause 14(1), on page 10, to include amending, repealing or revoking.

That gives context to the importance of these two amendments. Can the Minister confirm that this really is the Government’s intention? Schedule 8 does not have the two-year limitation period that Clause 7 has. Clause 7 applies only for two years, which is bad enough, but at least it is time-limited, whereas Schedule 8 is not. Is it really the Government’s intention to confer power on Ministers to repeal by secondary legislation—with all the difficulties that poses for adequate scrutiny by Parliament—any employment rights and any of the other important protections mentioned in Amendment 21 and 22 in so far as they are part of retained EU law, which as we have heard covers the Equality Act and many other Acts in so far as they derive from, or are linked to, EU law obligations?

Prisons

Lord Kirkhope of Harrogate Excerpts

Thursday 22nd February 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, any death in custody is a tragedy. What I can say is that, in the period of 12 months to September 2017, the number of self-inflicted deaths in the prison system dropped by about 30%.

[Lord Kirkhope of Harrogate (Con)]

My Lords, speaking as a former Mental Health Act commissioner, I am deeply disturbed by the high incidence of mental illness in our prison population. I would be very grateful if my noble and learned friend could inform us of how much attention has been given to this by the Government, working not only through his department but with other agencies to address what I believe to be quite a serious issue.

[Lord Keen of Elie]

My noble friend is quite right to highlight such a serious issue. There is a very large proportion of prisoners with mental health issues within the system. We are working with the Department of Health and NHS England to develop a new health and justice protocol that should ensure timely access to mental health and substance misuse services. In addition, we have been providing grant funding of £500,000 a year to the Samaritans for the last two years in order that they can support their Listener Scheme for those who require it.

Asylum Seekers: Legal Advice

Lord Kirkhope of Harrogate Excerpts

Monday 5th February 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, current figures show that 103 children were put into detention in immigration-related matters in 2016, of which 42 were under 12. Some of those may have been unaccompanied but, under the policy of the 2014 Act, unaccompanied children should not actually go into immigration removal centres; they should be held pending removal decisions. With regard to exceptional case funding, the figures for the first two quarters of 2017 indicate that the success rate for immigration-related applications was 73%. Some 652 applications were made during that period.

[Lord Kirkhope of Harrogate (Con)]

My Lords, we should remember the United Nations convention, which originally set out the criterion for granting asylum: to people in great need of protection. Does my noble and learned friend agree that it is terribly important for us to restate that, and to make sure that asylum is not used as a vehicle for immigration rather than giving the protection that the most extreme cases require?

[Lord Keen of Elie]

My Lords, it is clearly in the interests of genuine asylum seekers that the system for seeking asylum as permitted under the UN convention should not be abused and should not be seen to be abused.

Queen’s Speech

Lord Kirkhope of Harrogate Excerpts

Wednesday 28th June 2017 Lords Chamber

[Lord Kirkhope of Harrogate (Con)]

My Lords, I refer you to my register of interests, which includes a pension from the European Parliament, although to balance up any unintended bias tonight I must indicate that I also receive a pension from the UK Parliament. I was originally going to concentrate my remarks on a limited analysis of a post-Brexit relationship in the ever-moving and developing field of regulation and legislation for future intelligence and criminal data sharing. I have been concerned for at least the last 10 years in that subject, but as the hour is late my views on that will have to await revelation on another day in another debate. Instead, I want to follow on from the noble Lord, Lord Soley, with whom I will be pleased to work to maintain positive relations with our European partners in the future. I wish to emphasise the urgent need tonight for more understanding in the Brexit process, understanding not only the principled views of all sides in the Brexit discussion here in the UK and in both our Houses, but understanding the views and positions of our European friends.

I have made many friends in Europe and I know how much they want us to remain closely linked, not only geographically but bonded by common ideals. My noble friend Lord Hunt of Wirral, cited the remarks of the late Rab Butler, who talked about politics being “the art of the possible”. How true, but little is possible without a full appreciation and understanding of those with whom we must deal. This understanding must not only be of the views and positions of individuals or parties but of the institutions in Europe. I am amazed at the lack of knowledge in some quarters of the powers and influence of the European Parliament that I recently left, since the Lisbon treaty of 2009, and even of the European Commission, where a number of noble Lords and Baronesses have served over the years.

We will, of necessity, have to work together in future, with common causes and in resisting common threats, so we really need no unnecessary belligerence, no threats and no ultimatums. The Prime Minister herself has made it clear that in the Brexit negotiations we are looking for a positive relationship in the years ahead, but some of the rhetoric, referred to earlier by my noble friend Lord Lamont, does little to assist. Respecting the feelings of our neighbours and recognising their general desire to maintain close connections with us is vital, as is the need for us to understand and sympathise with their wish to continue and develop the community relationship between themselves when we leave. We have worked closely, often with the UK leading the way with our partners in Europe, for many years and we can point to many areas of co-operation and friendship. There is no doubt that we are going to be missed, but whatever the outcome of the present situation we owe it to ourselves and future generations to maintain that friendship and a constructive approach to European as well as wider world affairs.

Prosecutions: Defence Legal Costs

Lord Kirkhope of Harrogate Excerpts

Wednesday 15th March 2017 Lords Chamber

Asked by

[Lord Kirkhope of Harrogate]

To ask Her Majesty’s Government, in the light of the recent acquittal in the Crown Court of a defendant who had discharged a weapon at an intruder, whether they intend to review section 16A of the Prosecution of Offences Act 1985 which limits or prevents defendants claiming costs on acquittal.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I refer to my register entry as a solicitor.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, in 2012 the Government limited reimbursement of the legal cost of defendants who had been convicted of a criminal offence. Where legal costs are still allowed—for example, where the defendant was not eligible for legal aid—the recoverable costs are limited to the equivalent of legal aid rates. A review will be conducted by April 2018.

[Lord Kirkhope of Harrogate]

My noble and learned friend the Minister will be aware I am sure of the recent case of an 83 year-old gentleman of good character who was acquitted of violence against an intruder on his property, but was not permitted under current rules to claim his reasonable defence costs. How can we reconcile the presumption of innocence and an acquittal with the fact that claiming legal costs incurred to maintain innocence is no longer normally possible? I know that a review of these rules is taking place; I am delighted to hear my noble and learned friend confirm that. I would be grateful if he ensured that these and similar circumstances are part of such a review, bearing in mind that the present situation is not only a deterrent to innocent parties defending themselves, but positive encouragement to sloppy preparation and decision-taking by the prosecuting authorities.

[Lord Keen of Elie]

My Lords, we are of course aware of the particular case to which my noble friend refers. I observe that the individual in question did apply for legal aid, was eligible for it and was offered it, but declined to accept it. Had he accepted that offer he would have been required to make a relatively modest contribution, which he would have been able to recover upon being acquitted. However, the individual in question decided not to accept the offer of legal aid and instead instructed lawyers privately. In those circumstances he was not eligible for recovery of costs. Of course, all these matters will be subject to the review that is to be completed by April 2018.