Safety of Rwanda (Asylum and Immigration) Bill

Lord Jackson of Peterborough Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, I am listening carefully to the noble Lord. In all sincerity, what is the difference between a foreign, unaccountable and anonymous single judge in a court over which the British people have no control, accountability or democratic sanction, and some of the more unappetising and less benign regimes and legal procedures to which he refers?

[Lord Kerr of Kinlochard (CB)]

The noble Lord is well aware that the Strasbourg court has decided to pass various reforms and the anonymity of the judge is a thing of the past. I am not an expert on the Strasbourg court. However, I am a believer that if we maintain that we believe in the rule of law, we cannot pick and choose which bits of international law we comply with. That is a point I put forward at Second Reading and one I feel very strongly about. I do not see how we can, in good conscience, pass Clauses 5(2) and 5(3), which is why I added my name to Amendments 57 and 59 as moved by the noble Lord, Lord Scriven.

[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?

[Lord Jackson of Peterborough (Con)]

My Lords, I want to speak very briefly to group 5 amendments. Specifically, I go back to the answer that the noble and learned Lord, Lord Hope of Craighead, gave to me earlier. Yes indeed, the plenary court—

[Lord Purvis of Tweed (LD)]

It might just be helpful if the noble Lord would apologise to my noble friend, to say that he was not in the Chamber at the commencement of this group.

[Lord Jackson of Peterborough (Con)]

It was very observant of the noble Lord, Lord Purvis, but I was in here. I left to get my notes that I needed, but I am touched by his interest.

On the issue from the noble and learned Lord, Lord Hope, the plenary session on 13 November did indeed undertake to de-anonymise the individual single judges involved in adjudication, but that has not yet happened, and there is no timetable for that. So I suppose each of us is half right.

The important thing to state, again, is that the wider context, as touched upon by the noble Lord, Lord Green of Deddington, is that the public are exceedingly concerned about the issue of illegal migration. It cannot be brushed aside when we talk about arcane legal and legislative points. People are angry and they want answers. As a Parliament, we have to find a way to face up to those very difficult issues. The point I made a week or so ago is that if there is a change of government, the Labour Party is most likely going to have to face those challenges as well. Instead of just criticising the Government, it will have to come forward with some really significant proposals to address those issues.

The Strasbourg court, as it happens, has never asserted or conferred, via member states, the right to authorise the court to grant interim relief in terms of the ECHR convention treaty. Indeed, domestic courts—the Supreme Court and the Appeal Court—have found quite the contrary, as was mentioned by the noble Lord on the Cross Benches earlier.

There is a concern about this battle between parliamentary sovereignty and accountability in this House and in the other place, and the idea that a decision which could have very profound public safety ramifications—this is a tiny minority, but it could possibly—is taken in foreign court with an anonymous judge where the Government are not permitted to present evidence in a timely way. There is no real accountability. I am sorry to say that the noble Lord, Lord Hannay of Chiswick, finds it disobliging to call it a foreign court, but that is how many voters, taxpayers and British citizens see it.

[Lord Hannay of Chiswick (CB)]

I am grateful to the noble Lord for giving way. My complaint about the use of the term “foreign court” was not due to any discomfort, but because people such as himself and the leader of his party encourage people to call courts which are not foreign courts “foreign”. They are courts of organisations which we have endowed with certain powers, and which often have British judges on their tribunals. That is my complaint.

[Lord Jackson of Peterborough (Con)]

I think that is a moot point, in so far as—

[Baroness Chakrabarti (Lab)]

Oh!

[Lord Jackson of Peterborough (Con)]

I am always delighted to amuse the noble Baroness, Lady Chakrabarti.

Articles 26 and 27 of the ECHR expressly limit the competence of a single judge vis-à-vis the Chamber of the Court or the Grand Chamber. I agree that in a case such as Hirst v UK (No. 2) [2005] on prisoner votes, we—as a Government, Ministers and the Executive—specifically set our face against a decision of the Grand Chamber. That was liable for criticism.

But the fundamental question here is: is the use of Rule 39 interim measures at the heart of what you would call international law? As I will set out very briefly, that is not necessarily the case, because the ECHR makes express provision for the constitution of the court and its jurisdiction. A single anonymous judge at the court breaches the limit of what the ECHR establishes as the competence of that single judge as the legal authority. Indeed, interim measures are not, in effect, de facto rulings of the Strasbourg court at all, and the Minister is therefore not in breach of “international law”. I make reference again to Articles 26 and 27 of the convention.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Lord for giving way. I am very interested in his points about international law and so on. As a matter of basic common sense and logic, does he understand why there is value in the interim measures of any court, domestic or international? Does he understand why it is sometimes necessary to have some kind of mechanism for preventing a case becoming totally academic and preventing the outcome being decided before the case has been properly and finally heard, whether in a domestic or an international court? If he agrees that there is sometimes value in that, and if he has concerns about the way the Strasbourg procedures work, does he not think that the first thing to do would be to try to negotiate reforms to those procedures, rather than just taking domestic powers to ignore them?

[Lord Jackson of Peterborough (Con)]

I say, gently, to the noble Baroness that this issue with unrestricted, unprecedented levels of geopolitical change and immigration is sui generis. Therefore, one has to see it through that prism. Yes, broadly and in principle, it is better to negotiate than to withdraw from a convention or another legal regime. But you cannot always use the case that, because Putin has been beastly, we self-evidently and axiomatically have to deal with his breach of international law. After all, invading a sovereign country such as Ukraine is a bit different from some of the other cases the noble Baroness used. It does not mean that you cannot be critical of the overall application of the legal regime we are discussing.

In fairness, my noble friend Lord Hailsham’s amendment is very fair-minded, enabling the Government potentially to present the evidence that, hitherto, they were not able to do in the 2022 case. Indeed, the amendment in the name of the noble Lord, Lord Coker, is eminently sensible—actually, it is rather otiose, because one would always assume that the Home Secretary would seek the advice of the Attorney-General in proceeding in these small number of cases.

Two of the amendments the noble Baroness put forward are clearly wrecking amendments. The amendment that would disapply Section 55 of the Illegal Migration Act would specifically remove the express parliamentary sanction and authorisation of non-compliance with the interim measure, which, in itself, is a draconian move. Amendments 58 and 60 go to the heart of what we assume to be international law, in terms of what is justiciable in domestic law.

Let us be honest and put our cards on the table. This is about tying up the Bill in endless judicial reviews to stop any people being removed and to stop us tackling one of the biggest, endemic, troubling issues in politics. It is about bringing this back under the purview of domestic legislation in order to establish a roadblock via judicial review.

My final point is about the Human Rights Act 1998. It does not give legal effect in domestic legislation to the Strasbourg court’s Rule 39 practice, which is grounded in Article 34 of the European Convention on Human Rights and is not one of the Commission rights set out in Schedule 1 to the 1998 Act. For those reasons, therefore, there is a very big question mark over the use of Rule 39 interim measures. Are they really international law as we would define it? Noble Lords would be wise to consider that when they come to vote for these amendments.

[Lord Hoffmann (CB)]

The noble Lord, Lord Howard, did me the honour of quoting a passage which I had written in a foreword to the paper by Professor Ekins of St John’s College, Oxford, on the jurisdiction to grant interim injunctions. I adhere to what I said in that foreword, but I ought to go a bit further. I will not go into the reasons Professor Ekins gave. He looked into the terms of the treaty, the travaux préparatoires and what the court had been saying until relatively recently, and he came to the conclusion that it had simply invented the power to grant interim injunctions. Indeed, the court in Strasbourg does not even have the power to grant final injunctions. If it is determined that there has been a breach of the treaty, what is to be done about it is a matter for the Committee of Ministers and not for the court itself.

However, the power to grant an interim injunction is an important part of the armoury of any court. Anyone who has held judicial office will know that it usually involves not so much any question of law but a practical question of deciding what lawyers perhaps rather frivolously call the balance of convenience between facts, which means the power to balance the possibility of injustice in one direction or the other. That is to say, you say to yourself, “Well, what is the position? Assuming that he turns out to be right but I don’t stop this going ahead, what injustice will he have suffered; and likewise, if I do stop it, what injustice will have been suffered by the person who has been stopped?” You weigh these things against each other and come to a practical conclusion.

It seems to me that it was sensible for the original treaty not to have included a power to grant interim injunctions, because this is essentially a practical and local matter which ought to be considered by English courts—by the courts of this country—and particularly not by a court in Strasbourg, whose sole function is to say what the terms of the convention mean. What the convention means is what it says it means, and that is perfectly well understood. However, the power to grant injunctions seems really to be a question for local courts.

If we go ahead with Clause 5, we have the bizarre situation in which the courts are, by virtue of the other clauses we discussed earlier, prevented from themselves granting interim injunctions. For the reasons I have given, I wholly supported the amendments proposed earlier today by the noble Baroness, Lady Chakrabarti, and my noble and learned friend Lady Hale. They seem absolutely essential to enable our courts to give justice.

On the other hand, however, what we have is a provision by which the orders of a court which, in my view, does not have jurisdiction can nevertheless be enforced, provided that the Minister—like the Emperor at the Colosseum—puts his thumb up rather than his thumb down in relation to those particular orders. That seems an extremely strange situation. For that reason, I am unwilling to support the amendment that gives effect to the interim injunctions in our report, but I certainly supported the amendments that were moved earlier.