Safety of Rwanda (Asylum and Immigration) Bill

Lord Faulks Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I have Amendments 58, 60 and 61 in this group, and I share them with the noble and learned Baroness, Lady Hale of Richmond, and the most reverend Primate the Archbishop of Canterbury. I shall also say a few words about Amendment 63, which I have not signed but which is proposed by the noble Viscount, Lord Hailsham, who is sadly unable to be here today, and I said I would say something about his amendment, because I think it is very valuable to the Committee’s consideration.

Amendments 58, 60 and 61 would require the Government to comply with international law in responding to an interim measure of the Court of Human Rights. They would require domestic courts to take such interim measures into account and would disapply offending provisions in Section 55 of the Illegal Migration Act for those specific purposes.

It is difficult to contemplate why the Government want to take specific powers to disapply Rule 39 measures, given, as we have heard from the noble Lord, Lord Scriven, and others on different days, how few interim measures have been made in the history of the convention against the United Kingdom—something to be proud of—how we have pretty much always complied with them, and how we try to take a position on the world stage to encourage others in the Council of Europe, and powers outside the Council of Europe, to comply with other international courts. I need not develop that too much further; I am sure everyone knows what I am alluding to. I find it difficult to understand.

If certain noble Lords opposite are going to pop up and say there is nothing in international law that says that you have to comply with Rule 39, one answer came from the noble Lord, Lord Scriven: it is ultimately for the court to decide whether Rule 39 is binding in international law or not. When you sign up to the club that is the Council of Europe, do you sign up to the referees of that club, yes or no?

The other thing is this. If it is not a matter of international law that we comply with Rule 39 and we just do it because we are gentlemen—and ladies and noble Lords—then why would we take specific domestic statutory powers to say we can ignore it? It seems very odd and troubling to me—but I would say that, would I not?

Even though I did not sign it, because I take a rather trenchant position on the importance of complying with Rule 39, I think it is important to expose Amendment 63 from the noble Viscount, Lord Hailsham. He was prepared to go a little towards the government position and to say that there might be certain circumstances where a Minister of the Crown may ignore an interim ruling of the court. Remember, the court in Strasbourg makes these only rarely, and only where it thinks there is a real danger that something so bad will happen to the person between the case being brought and a final outcome that the case will be virtually academic, to use a phrase coined earlier by the noble and learned Lord. Here, “academic” means that you will be dead before the final outcome of the case, or you will be sent for torture. That is the territory we are talking about when we talk about interim measures.

The noble Viscount, Lord Hailsham, is prepared to go further towards his noble friends’ position than I am. In honouring comments from the Government on previous occasions, he tabled Amendment 63, which says that Ministers may sometimes ignore interim measures but only when the Government were not allowed a proper opportunity to argue against the making of the interim measure.

This goes back to a debate that arose during the passage of what is now the Illegal Migration Act, and that now rages on in certain parts of the media and on Twitter: that the wicked old Strasbourg court is constantly granting these interim measures to frustrate our immigration controls and is doing so behind our backs—so-called pyjama injunctions. I have heard all sorts of people who do not often talk about legal process pick up this soundbite of “pyjama injunctions”. The Strasbourg court is granting these ex parte injunctions to applicants without due process—that is the argument that is being made.

The noble Viscount says, “Of course we must have due process, and therefore the Minister can ignore these measures if he thinks we’ve not been allowed due process”. Since the passing of the Illegal Migration Act, which is when this argument was first ventilated, there have been productive discussions between the Government—they are indivisible, but I am talking about that nice bit we call the Foreign Office—and the Strasbourg court, because I believe everybody agrees that there should be due process. Sometimes, you need to make an urgent interim measure to stop someone being put on a plane potentially to ill treatment or death. But, even in that emergency situation, any state or Government should have the opportunity to say, “Actually, you got that wrong, so can we return to that?”

[Lord Faulks (Non-Afl)]

The noble Baroness said that the Strasbourg court would make such an order only in dire straits, when there was a matter of real emergency and death was the almost inevitable result. Can she help the Committee with the reasons the Strasbourg court gave last year, when it issued the rule 39 order?

[Baroness Chakrabarti (Lab)]

No, I will not set that out, given the hour. I am talking about the general principle here, and I will not rehearse the specific details of that interim measure. I want to focus on the fact that everybody agrees that due process requires that any state, including the UK, ought to be able to put its case, and, if it cannot do so in an emergency, it should be able to thereafter. My understanding of the Government’s position during the passage of the Illegal Migration Act was that the UK Government were in negotiations with the Strasbourg system to make sure that due process was restored. Even if an emergency interim measure needs to be made, there will be the opportunity to put the other case thereafter—that is the position we are used to in the domestic courts. That seems sensible to me.

I had an amendment to the Illegal Migration Bill, akin to the amendments I have today, and I withdrew it and did not press it at subsequent opportunities because I thought that the UK Government were entitled to have those negotiations with the Strasbourg court. Everything I read suggests to me that these negotiations have been fruitful, presumably because of the endeavours of people like the noble Lord, Lord Ahmad of Wimbledon, who spoke so powerfully about rights, freedoms and the rule of law a few moments ago.

In his reply, can the Minister tell us where we are with those discussions with the Strasbourg court? It seems to me that it would be common sense and better for everybody—not just the UK Government but other states, as well as the Strasbourg system itself, which is so important in the current dangerous times—if that mechanism worked well, so that, even if there occasionally need to be emergency interim measures, it would be clearly open to any state that felt that it had not had the opportunity to put its case to do so subsequently. An interim measure, if not needed, could be set aside. That is my first question to the Minister.

My second question is this: how can we pursue measures of this kind, taking a specific express power for Ministers of State to ignore interim measures of the Strasbourg court, when there are currently interim measures against, for example, the Russian Federation to prevent the execution of prisoners of war in the Ukraine conflict? I am becoming a little tired of hearing the Government speak with two voices: the Foreign Office voice and the Home Office voice. The poor Minister is of course a law officer and has to sit across all of this, but it is not consistent to talk about international law and how everyone must obey it, including the Russian Federation, which, while it is expelled from the Council of Europe, we say is still bound by interim measures of the Strasbourg court.

That is important because, one day, there will be a reckoning for Mr Putin and his cronies, and it may be in the ICC. It will then be relevant that there were interim measures of the Strasbourg court, and particularly relevant if they ignored them. How does that stand with what the Government propose in this Bill?

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No Minister would therefore wish to break international law. If judicial review was sought of an order by a Minister not to comply with Rule 39, it would presumably be open to the court to say that whether the Minister is acting lawfully depends on whether not to comply with a Rule 39 order is in breach of international law—for which the court could then make an interim order restraining the effect of the Minister refusing to comply with Rule 39.

[Lord Faulks (Non-Afl)]

The noble and learned Lord kindly referred to the Answer that I gave at the Dispatch Box, which I think was a correct analysis of the law, but I am sure that he would agree that it is important not to conflate the Ministerial Code, and the obligations placed on the Minister, with the position in our law, which is the separate law. We have a dualist system as opposed to a monist system so the fact that there is a Ministerial Code does not mean that we are obliged to follow international law, wise though it may be to do so.

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[Baroness Butler-Sloss (CB)]

My Lords, I was in a queue waiting to pay my bill at dinner and therefore arrived a few minutes late. I am very grateful for the Committee allowing me to speak.

I listened with particular interest to two of the most distinguished lawyers in this House: the noble and learned Lord, Lord Hoffmann, with whom I sat on the Court of Appeal regularly, and the noble and learned Lord, Lord Etherton. There is undoubtedly a potential dispute. Without going into what it should be, Clause 5(2) and (3) exclude the English court. The noble Lord, Lord Jackson, complained about the international court; ought we not to be complaining that the English court is excluded?

If there is to be a dispute with the Court of Human Rights, we might bear in mind that we are a member of the Council of Europe. If we blatantly refuse to follow the ECHR at Strasbourg, we might be turfed out, like Russia. Would we want to be the second country after Russia to be excluded from the Council of Europe? Some might not care, but others might think it would not look very good.

What I am complaining about is that Clause 5(2) and (3) will stop our domestic court making a decision. That seems a very good reason to support some, if not all, of the amendments.

[Lord Faulks (Non-Afl)]

My Lords, these amendments all concern the response to interim orders of the European Court of Human Rights—not a foreign court, I entirely accept, but a court of which we are a member. At Second Reading, I absolutely accepted that courts, particularly domestic courts, will need to have powers to make interim orders—to stop a child being taken from the jurisdiction, or to stop someone disposing of assets, knocking down a building or any number of different matters that ought to be ruled on immediately, rather than waiting for the worst to happen.

However, the granting of such orders, particularly if they are obtained ex parte—that is, in the absence of the other side—is always subject to stringent safeguards, and none seemed to be honoured when the court in Strasbourg determined that the Government could not remove an asylum seeker to Rwanda. We still do not know who the judge was; there is no record of his or her reasons. That is why I asked the noble Baroness, Lady Chakrabarti, whether she could enlighten us as to the reasons why the order was made. She told us that they would be made only in extremis, when an individual was likely to suffer death or something similar, but there is no explanation of the reasons or any basis on which they came to that conclusion. We do not know what the reasons were.

[Baroness Chakrabarti (Lab)]

Hence, as I think I said, many of us across the Committee agreed with what some Ministers opposite proposed last year: that the Strasbourg process for interim measures should be reformed to encourage greater transparency and the possibility of rectification, and to give states that felt they would like to correct an erroneous interim measure the ability to do so.

[Lord Faulks (Non-Afl)]

Indeed, but not only were reasons not given; the Government were not given an opportunity to come back on a return date, which is the norm on interim applications. All this amounts, effectively, to a breach of natural justice on any basis.

Nor is the comparison with the availability of domestic interim remedies wholly analogous, as the noble and learned Lord, Lord Hoffmann, said. The Government are, of course, a valued member of the court in Strasbourg. If, at a full hearing, the court determined that there had been a wrongful removal then the Government would be expected to comply, as they have always done in the past. But, as the noble Lord, Lord Wolfson, made clear in his address to the House at Second Reading, and as we have already heard this evening, there is very considerable doubt, to put it neutrally, as to whether the court has any power to make such an order. Other countries are extremely doubtful about the legality of the rule. Of course there is talk of improving the procedure, as the noble Baroness said. That may or may not transpire.

But I understand—although it is a slightly peculiar provision—why the Government have decided to give the Minister the powers that he has under Clause 5. Otherwise, the whole policy could potentially be undermined by an unnamed judge’s decision, given without reasons. Even the most fervent supporter of the Strasbourg court must be a little uneasy at that state of affairs.

I do, however, echo the question asked by the noble and learned Lord, Lord Falconer: do the Government consider that the exercise of this power under Clause 5 would be amenable to judicial review and, if so, on what grounds? The Government must have taken a view about that. The answer to the question would, I suspect, be relevant to whatever side of the argument you favour.

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[Lord Purvis of Tweed (LD)]

I am not a lawyer and I do not wish to refer to any of the legal aspects of the amendment; there has already been enough of that in the excellent contributions from noble and learned Lords. I just want to address the point about why the United Kingdom should feel that we are particularly vulnerable to this court.

There has been reference to other countries that have had interim measures granted against them. It is of course the case that the interim measures relating to the Rwanda MEDP have a high profile. The noble Lord, Lord Faulks, seems to continue to be uncertain as to why the interim measures were given. I think he knows that, on the day that the court issued the interim measures, it also issued the statement of the decision when it notified the UK Government of the interim measures. These are public documents and they are online.

The interim measure relating to the case of NSK was put in place on the grounds that that the individual should not be removed to Rwanda until the ongoing domestic judicial review process was concluded. That is the reason the court gave for that case. I am not a lawyer and I know the noble Lord, Lord Faulks, is, but it sounds reasonable to me that while a domestic—

[Lord Faulks (Non-Afl)]

My Lords—

[Lord Purvis of Tweed (LD)]

Just one moment—I will say what is reasonable and the noble Lord can say it is not. I think that, if there is an ongoing domestic judicial review process but the Government decide to deport that individual before it has concluded, there are reasonable grounds there. I will happily give way to the noble Lord.

[Lord Faulks (Non-Afl)]

With respect, a statement of conclusion does not give any of the reasons for coming to that conclusion.

[Lord Purvis of Tweed (LD)]

It gave the decision that the ongoing domestic judicial review process should be concluded.

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[Lord Howard of Lympne (Con)]

My Lords, I am sorry to detain your Lordships at this late hour. I shall try to be very brief. This amendment, particularly proposed new subsection (6), is remarkably similar to an amendment put forward earlier in Committee by the noble Baroness, Lady Chakrabarti, which I characterised as outsourcing decision-making to the UNHCR. I had a little spat with the noble Lord, Lord Kerr, about that and the right reverend Prelate, who spoke in favour of the amendment, denied that it was outsourcing. Very graciously, the noble Baroness intervened to say that that was the effect of her amendment and that she would consider making it, in her words, less rich when she brought it forward on Report.

This amendment falls into exactly the same trap. In proposed new subsection (6), on the renewal of the Act after two years, the decision is again outsourced to the UNHCR. I will not go through all the reasons I gave in my earlier speech as to why that is entirely inappropriate but, for those same reasons, this amendment is also completely inappropriate.

[Lord Faulks (Non-Afl)]

My Lords, I will briefly comment on the relationship between Rwanda and the United Kingdom contained in the treaty. A lot has been said about the treaty being inadequate and how it depends on what happens in future. The noble and learned Lord took a certain amount of flak during earlier debates in Committee when he was asked what the treaty is doing if Rwanda is safe. He suggested that it might make it safer. The rather scornful response to this observation was somewhat unfair. The treaty contains a number of obligations and is entirely typical of treaties in that respect. These obligations use the word “shall” and are directed to future activity.

The general principle of international law is that a treaty is binding on the parties and must be performed in good faith. That principle is embodied in the maxim “pacta sunt servanda”. We take that very seriously. If a party breaks the terms of a treaty, provided there has been a fundamental change of circumstances, as the Vienna Convention on the Law of Treaties makes clear, the treaty in effect comes to an end. The noble Lord, Lord Clarke of Nottingham, spoke of the possibility of a coup and seemed to suggest, as the proposer of this amendment did, that because Parliament had determined that Rwanda was safe, we would be stuck with that determination.

I respectfully disagree. The treaty bears close reading. I will not refer to it at this stage of proceedings, but Clause 8(1) makes its nature clear, Articles 14, 15 and 16 concern the arrangements for monitoring and Article 22 provides a dispute mechanism. Further, the treaty will end on 13 April 2027 in any event. These seem to me to be sufficient safeguards built into the treaty, but if there is a coup or a fundamental change of circumstances, or any Government think that Rwanda is unsafe, the treaty can be brought to an end, at least until a subsequent agreement has been reached. To suggest that Parliament must somehow not be satisfied that there are obligations in international law seems to me unreal.

[Lord Purvis of Tweed (LD)]

I respect the noble Lord and am listening carefully to what he is saying, and as always, he makes well-considered arguments. I have a genuine question. I agree with everything he said, but only the Executive, under the prerogative power, would be able to make the judgment to end that treaty. Parliament cannot do it. Is that correct?

[Lord Faulks (Non-Afl)]

The noble Lord is entirely correct about the prerogative, but Parliament, perhaps unusually, in considering this Bill has the opportunity to see the treaty and the obligations contained within it. Parliament should look at those obligations and see whether it is satisfied with the terms of the treaty and whether it provides sufficient safeguards. These are relevant factors for Parliament to consider but, ultimately, I accept that the noble Lord is right—it is for the Executive to decide.

[Lord Purvis of Tweed (LD)]

I am very grateful to the noble Lord for giving way again. In essence, that was my argument in the previous group when it came to the necessity for us to have the information for the monitoring committee and the joint committee, given the circumstances, to allow us to form that view. Ultimately, we do not have the power to bring the treaty to an end or amend it because it is a prerogative power. We are, therefore, very limited as to what we are able to do if there are changes of circumstances in Rwanda that our Government and their Government do not then wish to change within the treaty.

[Lord Faulks (Non-Afl)]

That shows very little faith in a Government of whatever colour. This particular Government will take a view as to whether or not there was a breach of the treaty in relation to the various safeguards contained within it. The Opposition are proposing to repeal the legislation in any event, so the matter might well disappear as a result of such an Act. We must credit the Executive, however, with the power to review and seriously consider if there was a sufficient change of circumstances—a coup, for example—to warrant a different approach.

[Lord Falconer of Thoroton (Lab)]

My Lords, I strongly support the right reverend Prelate the Bishop of Chelmsford in moving the amendment. We have gone through, in some detail, the question of when this Bill is going to become law and whether it will become law before the changes are effected as a result of the new treaty.

Noble Lords will remember that the Home Secretary is asking us to bear in mind the key part of his evidence that the position has changed since the Supreme Court judgment: namely, the treaty for the provision of an asylum partnership, which was laid before this House in December. Obviously, it is only when the provisions of that treaty are implemented that the position will have moved on from what the Supreme Court found, because the Home Secretary quite rightly is not challenging the finding of the Supreme Court; he is saying the position will change when the treaty is given effect to.

Obviously, this House is very sceptical of what Ministers are saying about when the treaty changes take place. Earlier in the afternoon, Ministers were unable to identify when the law in Rwanda would be changed to give effect to it. Ministers were not able to tell the Committee at all when the monitoring committee was going to recruit a support team, independent experts were going to be appointed to advise the first instance body, and all the other things set out in paragraph 19 of the International Agreements Committee report. We have no idea at the moment whether this Bill will be brought into force before the changes envisaged by the agreement and therefore the place will then become safe, so I am very surprised the Government are willing to go ahead with it before the changes are implemented.

That is the beginning. As far as the end is concerned —as this amendment is concerned with—Ministers will be aware that the agreement that gives effect to the changes, which remedies the problems identified by the Supreme Court and accepted as problems by the Government, ends on 13 April 2027, unless the agreement is renewed. I assume, though I invite Ministers to confirm, that if the agreement with Rwanda is not extended beyond 13 April 2027, it is the Government’s intention that the Rwanda Bill will come to an end. If that is not the position, how on earth could the Government contend that Rwanda continued to be a safe country after 13 April 2027?

In any event, the possibility of changes of circumstances are something that Parliament should be able to debate. The two-year sunset clause the right reverend Prelate is proposing is a means by which that debate could take place. Everybody who has debated the Bill in this House agrees it is a very grave thing that the Government are seeking to do by promoting the Bill. The idea that it is a permanent state of affairs that can never be looked at again without the consent of the Executive promoting another Bill is an inappropriate way to deal with it.

For all those reasons, I submit that this Committee should agree to the amendment proposed by the right reverend Prelate. However, I am extremely interested to know what the answer is to the position if this agreement with Rwanda is not extended beyond 13 April 2027.