Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Wolfson of Tredegar and Lord Purvis of Tweed

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Purvis of Tweed (LD)]

I thank the noble Lord. I said that the court issued a press release; I did not say it made a judgment by press release. I think that is taking it a little too far.

The noble Lord states that the domestic judicial processes had been concluded, but the court said that they had not. All I am relaying to the Committee is the decision that was made. In my view it is reasonable, but I am not a lawyer, as the two noble Lords are. That was the reason the court made the decision, and the Government accepted it.

The point I wanted to make is that there were five other cases that day, which are not referred to as frequently. The requests for two interim measures were granted in order for the court to consider the cases in greater detail. That is correct, yes? Two were refused, which has not been mentioned so far, and one was withdrawn because the Home Office had changed policy in the meantime. Looking at the consideration of cases on that day, I do not think you would come to a conclusion—with three accepted, two refused and one withdrawn—that there was some deliberate blocking of the measure.

That prompted me to ask what the record of the UK has been on interim measures over the last years. There have been 178 applications overall, with most of them withdrawn, since 2021. We have fared fairly well against Germany with a total consideration of 264. That compares with 478 cases for France. We are doing quite well as far as cases against the UK go. If this is judicial blocking, and therefore the motives are to empower the courts to stop what the Government want to do, we need to look at the record of the decisions.

In 2021 five interim measures were granted against the UK and nine were refused. In 2022, five were granted against the UK and 12 were refused. In 2023—the most recent data—one interim measure was granted against the UK and 13 were refused. Far from this being judicial blocking—these cases are all to do with expulsions and relocations; this is not just in general terms—the UK’s system has worked really rather well, especially when compared with those of Germany and France. I would have thought that this is something that the Government would want to protect.

[Lord Wolfson of Tredegar (Con)]

My Lords, the ancient court known as the Sanhedrin, at its full complement, sat with 71 judges and had a rule that the most junior judge would give judgment first. I understand the reason was that, if the senior judges had spoken and the junior judge disagreed, that would be arrogant; if they agreed, it would be impudent. I find myself speaking after the noble and learned Lords, Lord Hoffmann and Lord Etherton, who disagreed. Therefore, whichever side of this argument I take, it seems I am going to be guilty of both. I ask forgiveness from each of them.

Like the noble Lord, Lord Anderson, I will spoil any questions as to which way I will go by saying that I respectfully agree with the noble and learned Lord, Lord Hoffmann, and the reasons he gave for supporting Professor Ekins’ paper. It was interesting that, in opening the debate, the noble Lord, Lord Scriven, said that for about 20 years the jurisprudence of the European Court of Human Rights has been clear. That is true, but it begs the question: since the European Court of Human Rights has been there for rather longer than 20 years, why did the noble Lord limit his position to 20 years? The answer is that if he had said “for 23 years” the jurisprudence would have said something completely different.

What is remarkable in this area is that this is not a new question. As I said at Second Reading, the question whether the European Court of Human Rights should have the jurisdiction—and this is a question of jurisdiction—to issue interim injunctions or interim measures was specifically debated by the contracting parties back in 1949, and it was deliberately not put into the text in 1950. It was a deliberate omission, not an oversight. The states considered whether the court should have the power and, no doubt for reasons similar to that set out by the noble and learned Lord, Lord Hoffmann, decided that it should not. That caused no problem at all.

Year after year, the court operated perfectly well without this power. It ruled, in terms, that it did not have this power in 1991 and, a decade later, in 2001, it upheld that ruling. As I said at Second Reading, you then have a judicial volte face in 2005, and the judgment from which the noble Lord, Lord Anderson, quoted. It is an open question, and it is interesting to consider why there was this volte-face by the European Court of Human Rights. I suggested that it might have been “jurisprudential envy”, because the International Court of Justice held that it had the power to issue interim injunctions. But, of course, that is different, because the statute of the ICJ, particularly the French version, provides a basis in the foundational document of that court for it to have that jurisdictional power.

With respect, question of whether the court has a power to issue these interim measures rests on very slender foundations. How is it now said that the court has the power, and we are bound by it? The primary argument put this evening has been based on Article 32, which provides that the court has jurisdiction to decide on the operation of the convention. What is interesting about that argument is that it is not used by the court itself, which, so far as I am aware, has not based its jurisprudence on the fact that Article 32 gives it the right to say, “This is what our jurisdiction is, and this is what we are doing”. It is outside commentators who have tried to find a proper basis—because Article 34, which the court does rely on, is not one—for the court’s jurisdiction. It is rather like the archer who scores a bull’s-eye not by firing the arrow at the target, but by firing it and then drawing the target around it.

One comes to the conclusion that people would like the court to have the jurisdiction and then say, “Ah, well, there must be a basis for it—what about Article 32?” But it is not an argument that the court itself uses, and it is also a false argument. Article 32 is about disputes about the convention and its operation; they are to be resolved by the court. It is not a grant of unlimited jurisdiction to the court to defy the express terms of the convention, including Article 46.1, which says that states are bound only by final judgments and therefore, by implication, nothing else—and by the history of the convention, which, as I have set out, is contrary to the court having these powers.

Article 32 is not the “get out of jail” card. This is not a new point. A similar point came before the Supreme Court in the case of Pham in 2015—what would happen if the European Court of Justice exceeded its jurisdictional powers? The noble and learned Lord, Lord Mance, dealt with that issue in paragraph 90. I do not need to go through the answer, but it certainly was not, “Well, the European Court of Justice has a power to interpret the treaties, and if it says it has the power to do this, that or the other, necessarily it does”, which would be the analogue to the Article 32 argument.

With the greatest of respect, Article 32 simply will not do as a basis on which to found the jurisprudence of the court. Of course, there are other points to be made as to the process of the court, and those have already been set out by the noble Lord, Lord Faulks. For those reasons, the point underlying many of the amendments in this group—that the court has jurisdiction to issue these interim measures and they are binding in international law—is wrong. Therefore, these amendments ought to be resisted.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Wolfson of Tredegar and Lord Purvis of Tweed

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

A very good touchstone of when lawyers realise that—if I may respectfully say—the argument does not quite work is when they start referring to spirits of things. With great respect, that is not a vested right. If you have a right to asylum, you have a right to asylum. Under this Bill, you also have a right to asylum. What this changes is where you have the right to asylum.

[Lord Purvis of Tweed (LD)]

The person who would have a right to asylum in the UK under this Bill would no longer have the right to asylum in the UK. It is completely different. They may have a right to asylum in Rwanda, but that is not the right that they had when they were here which is going to be taken away from them.

[Lord Falconer of Thoroton (Lab)]

Will the noble Lord explain why if I come here and am entitled to asylum that is not a right?

[Lord Wolfson of Tredegar (Con)]

The right is to make a claim for asylum. That is the vested right absolutely. The right is the right to asylum.

[Lord Purvis of Tweed (LD)]

In the UK.

[Lord Wolfson of Tredegar (Con)]

It does not work if the noble Lord shouts at me when he is sitting down. I am happy to give way. I hear what he says—that it is the right to asylum in the UK, and I am respectfully suggesting that is not the case under the law. The hour is late, and we will no doubt come back to this.

Asylum: UK-Rwanda Agreement

Debate between Lord Wolfson of Tredegar and Lord Purvis of Tweed

Monday 22nd January 2024 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, it is a particular pleasure to follow the noble Lord, Lord Carlile of Berriew, who I know will appreciate, although I think he and I will disagree on this topic, that I always listen to anything he says with real care, and often I learn from it. I am very grateful to the noble and learned Lord, Lord Goldsmith, and his illustrious committee for the report, which I have read and reread. I am also grateful to the powers that be for providing time for this debate, which the noble and learned Lord opened with his customary skill and persuasiveness. As judges who find themselves in a minority are wont to say, I have the misfortune to take a different view. So, although I will vote for the first Motion if there is a Division on it, I will vote against the second.

Let me clear one point out of the way first, although it is an important point, about the procedure that lies behind this debate. As my noble friend Lord Sandhurst explained, under the current legislation this House cannot block the treaty. That is as it should be: it would be a significant rewriting of the role of this House for it to block a treaty or to do any such thing. Under the relevant Act, the other place can delay a treaty again and again, but this House has no such power. I accept that there is a real debate to be had about the role that Parliament, and especially the other place, should have with regard to the review and ratification of treaties. This all used to be done under the prerogative, but times have moved on.

My friend—not in the parliamentary sense but in the actual real-world sense—Alexander Horne has co-authored a paper with Professor Hestermeyer on this topic, under the aegis of the Centre for Inclusive Trade Policy, and I am grateful to them for advance sight of it. I do not agree with all the paper’s conclusions—Alex will, I hope, forgive me for saying that—but it is a valuable contribution to an important debate. As my noble friend Lord Howell of Guildford said, our procedures in this context are not replicated in many other countries and may well require review and perhaps updating. But that is not the issue today; the issue today is not our procedures for ratifying and discussing treaties but the treaty itself. As my noble friend Lord Sandhurst noted, the issue is the treaty, not the Bill, which we will debate at Second Reading next week.

I know that many noble Lords do not like the Bill—I look forward to some vigorous and perhaps lengthy debates on the Bill—but next week’s Bill is not today’s topic. We are looking at the treaty, not the Bill, although it is interesting that I have not so far—I think I am the last speaker from the Back Benches—heard a speech today that says, “I like and support the Government’s policy in this area and I will vote for the Bill next week, but I just don’t like this treaty or the way the Government have gone about it”. For some reason, those opposing the treaty also oppose the policy underlying it and will also no doubt oppose the Bill next week.

I suggest that there is nothing objectionable about the treaty, what it does or what it says. It improves the protections as compared with the previous memorandum, not least by providing that persons can be removed from Rwanda to the UK, and only to the UK, thus directly addressing the risk of refoulement that lay at the heart of the Supreme Court’s judgment.

The thrust of the argument of those in support of the second Motion is, “We can’t be sure that the Rwandan Government will actually do what they say they will do”. That is not the view I take, but it is a position that of course I understand, in which case I respectfully say: put some measures into the Bill to make sure that the Rwandan Government live up to their obligations; or, if noble Lords cannot be satisfied by way of such amendments, vote against the Bill. To pick up the metaphor of the noble Lord, Lord Carlile: if you do not like the foundations, do not build the skyscraper—but let us have the argument about the skyscraper, not the foundations.

Before I sit down, I will respond to an important point made by the noble Lord, Lord Purvis of Tweed, which deserves a proper response. He made the point that my noble friend Lord Murray of Blidworth was wrong when he informed the House, when he spoke from the Front Bench, that the view of the United Nations High Commission for Refugees as to the interpretation of the refugee convention was not binding. That was the point that the noble Lord made this afternoon; he has made it before as well. His contention was that it is binding. He also said that the Supreme Court has said that it is binding. He quoted from the decision of the Supreme Court—let me reply to it.

The statement he referred to in the decision of the Supreme Court was that the UNHCR is entrusted with the

“supervision of the interpretation and application of the Refugee Convention”.

The Supreme Court did say that, but that shows that the UNHCR is not itself mandated with giving a binding interpretation of the convention. It does not have that right. Its role is to supervise the interpretation of the convention by the signatory states.

Indeed, the Supreme Court goes on to make that point in the rest of the paragraph from which he quotes, paragraph 64 of the judgment. The Supreme Court goes on to say, citing its own decision in the case of Al-Sirri in 2013, that the UNHCR’s guidance—note that word, guidance—as to the interpretation of the convention

“should be accorded considerable weight”.

So it should, but when judges say that something should be accorded considerable weight, they are necessarily saying that it is not binding. The UNHCR does not hold the pen on the interpretation of the convention. That was the point that my noble friend Lord Murray of Blidworth made, and indeed it is a point that I have made on previous occasions.

I am very happy to give way to the noble Lord.

[Lord Purvis of Tweed (LD)]

I am grateful, since the noble Lord mentioned me, because I know interventions are unusual in this debate. I quoted the noble Lord, Lord Murray, word for word from Hansard when he said:

“The UNHCR is … a UN body; it is not charged with the interpretation of the … convention”.—[Official Report, 24/5/23; col. 968.]


The Supreme Court disagreed very clearly. I did not insert the word “binding”; Hansard will show that. I quoted like for like, and I think the Supreme Court’s position was perfectly clear that the noble Lord, Lord Murray, was wrong.

[Lord Wolfson of Tredegar (Con)]

I know that this is a legalistic point, but that is the thing about the Supreme Court: it tends to make them. It went out of its way to say that the UNHCR is not interpreting the convention; it is supervising the interpretation of the convention by the signatory states. That may seem to be a subtle distinction, but it is critical, because it remains the right of the states themselves to interpret the convention. At least we have managed to have one intervention in this afternoon’s debate. That exchange has shown that we can all look forward to some interesting and vigorous debates next week and thereafter—but that is not today’s business.

I invite the House not to take a sideswipe at the policy—or, in advance, at the Bill—by way of the second Motion. Of course, we should support the first Motion, but I urge the House to vote against the second Motion.

Prisons Strategy

Debate between Lord Wolfson of Tredegar and Lord Purvis of Tweed

Thursday 16th December 2021 Lords Chamber

[Lord Purvis of Tweed (LD)]

The Minister indicated that the PCSC Bill included non-custodial sentences. Can he highlight what they are, and would he say that there will be a net increase or decrease in the number of people likely to go to prison as a result of the Government’s measures in that Bill?

[Lord Wolfson of Tredegar (Con)]

I was trying to say that on a number of occasions in debates on the PCSC Bill—I think perhaps the noble Lord was not participating in them—I have explained that under the sentencing guidelines, before somebody can be sent to custody the sentencer has to be satisfied that there is no proper alternative to custody. Even when that threshold is met, the sentencer then has to be satisfied that an immediate custodial sentence must be passed. We have had interesting debates on out-of-court disposals and alternatives to custody. I am happy to continue those conversations. As to the projections, I do not have those to hand but am happy to write to the noble Lord with them.