Amendment 31

Safety of Rwanda (Asylum and Immigration) Bill - Committee (2nd Day) – in the House of Lords at 4:30 pm on 14 February 2024.

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Lord Scriven:

Moved by Lord Scriven

31: Clause 2, page 3, line 13, leave out subsection (5)Member’s explanatory statement This amendment removes the “notwithstanding” provision from Clause 2.

Photo of Lord Scriven Lord Scriven Liberal Democrat

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.

Photo of Lord Kirkhope of Harrogate Lord Kirkhope of Harrogate Conservative

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.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, it is a great pleasure to follow the noble Lord, Lord Kirkhope of Harrogate, who was, of course, an Immigration Minister in the Home Office and therefore is not a “lefty lawyer” or someone who would be out to wreck any government legislation in this area. I want to say a little about disapplication of the Human Rights Act in general and a little in support of his amendment and to explain my probing Amendment 36.

In my lifetime, in different decades perhaps, both the main parties in this country have at times been divided on Europe. It is particularly sad that, for the party opposite, divisions over Europe have morphed into divisions over human rights and perhaps even the rule of law. As a self-identifying lefty human rights lawyer, I find that very sad because of the rich Conservative rights and rule of law tradition in this country, which was essential to the settlement that some of us are here to defend.

In attempting to paper over the splits in the Conservative Party over the European Convention on Human Rights and our domestic Human Rights Act, the Government seem to be trying the following trick: “We do not currently think there’s consensus in our party to do what we’ve promised to do in various manifestos, which is to repeal the Human Rights Act altogether. We don’t currently think we have the will, the mandate or the time to walk out of the European convention, as some of us want to do, but what we can do, and what it might be quite politically expedient to do, is instead to chip away at rights protection for particularly vulnerable groups of people. So we’ll disapply the UK Human Rights Act, for example, in relation to prisoners in the Victims and Prisoners Bill. We will disapply the UK Human Rights Act from asylum seekers and refugees in the Illegal Migration Act, or the safety of Rwanda Bill, and so on. We can then say to the electorate, ‘You can have your cake and eat it. There can be rights for some people and not for others. There can be rights for the many and not the few, and not the demonised few in particular’”.

Of course, that is the opposite of human rights protection. I will not bang on about this, but many noble Lords in this Committee, lawyers and non-lawyers, are constitutionally and historically literate enough to know that the word “everyone” features in many human rights instruments. It is particularly diabolical to chip away at rights protection for the most vulnerable groups and people who cannot even vote, as these people cannot. That is a huge concern that is addressed by some of the amendments and the clause stand part notice in this group.

I am particularly grateful to the noble Lord, Lord Kirkhope, for his Amendment 33, because he addresses a further problem with the way the Government have gone about disapplying the Human Rights Act for this vulnerable group. The interpretation of convention rights is disapplied. The interpretation of legislation in a compatible way, which is key to the way the Human Rights Act allows judges to interpret other legislation compatibly where it is possible to do so, is disapplied. Section 6, on the acts of public authorities and the duty on public authorities to exercise any discretion compatibly, is also disapplied.

What is left, as the noble Lord, Lord Kirkhope, identifies, is the Section 4 declaration of incompatibility. That is pretty much all that our domestic courts will be able to use if this Bill passes in its current form, which means that the moment the Act comes into force, a refugee or a group thereof will bring a challenge and it will quickly find its way to the High Court. I fully believe that our courts will make a Section 4 declaration of incompatibility.

However, such is the exquisite constitutional compromise that is the Human Rights Act that a Section 4 declaration has only persuasive effect; it is not a strike down power. The noble Lord, Lord Clarke of Nottingham, said eloquently that he hoped that, if this statute passes, our higher courts will strike it down. Strictly speaking, there is no formal power to do that unless we are heading for a very serious constitutional clash, which I hope we can avoid. All there will be is this declaration of incompatibility, which has only persuasive effect on a Government. If the Government carry on with the attitude they have been displaying towards rights, freedoms, the courts and the constitution, it will be two fingers to the Section 4 declaration of incompatibility as well.

This is meant to be about parliamentary sovereignty, not executive diktat, as was warned of in 1976 by the noble Viscount’s father. As the noble Lord, Lord Kirkhope, said, we must at least accelerate a conversation in Parliament before the Government give another two-finger salute to our courts, as they are already doing in relation to the judgment of the Supreme Court. I really welcome the elegant improvement proposed the noble Lord, Lord Kirkhope. There is no way that anyone could describe his Amendment 33 as a wrecking amendment.

As for my Amendment 36, because I object to disapplying the Human Rights Act per se, because it is a constitutional rights instrument in this country— I disapprove of disapplying the US Bill of Rights to particular groups or to everyone, and so on—why on earth have I tabled a limited disapplication of the Human Rights Act myself? That is surely a curious thing to do. I did it to demonstrate that some of us believe that the separation of powers is a two-way street. I was demonstrating that, if, as many of us hope—on the Cross Benches and other Benches too, I believe—one improvement that we make to the Bill will be for there to be some kind of process, parliamentary or other, before the Act comes into force, it would not be appropriate for anyone to litigate at the beginning of that process.

For example, if we end up with an amendment, yet to be agreed, whereby the Secretary of State is to lay some kind of advice before Parliament that Rwanda is now safe because the treaty is now fully implemented, it would not be appropriate for that Act or legislative initiative—whatever you want to call it—to be second-guessed in the courts. The proper place for the courts is after government has initiated and Parliament has decided. That is the moment when the courts should review the factual situation as well as legality. That is what my Amendment 36 is there to demonstrate. It is probably unnecessary. It is there really to demonstrate that the courts in this country are very restrained and respectful of parliamentary sovereignty; it is the Government who do not respect parliamentary sovereignty, as opposed to executive diktat. The Government do not respect the courts.

Photo of Viscount Hailsham Viscount Hailsham Conservative 4:45, 14 February 2024

My Lords, I rise to speak briefly to the generality of Clause 3. I signed the notice opposing Clause 3 standing part—not on this occasion, although that may be something to do at a later stage. We need to be cautious about advancing the proposition contained in Clause 3, because it disapplies the provisions of the Human Rights Act in the various respects specified in Clause 3(2). As the noble Lord, Lord Scriven, has rightly reminded your Lordships, this is domestic legislation. It is not legislation imposed on us but legislation that Parliament chose to enact. It is also the cornerstone of the proposition that human rights in this country should be universal in their application.

I regard what we are doing in disapplying serious sections of the human rights legislation in respect of specified groups in the community as deeply dangerous. It is a precedent which we should not formulate. At Second Reading, I took the liberty of reminding your Lordships of what Pastor Niemöller said about not crying out in opposition when bad things were being done. We are being asked to stand on a very slippery slope, and very slippery slopes lead very often to very dirty waters. We should not embark on this exercise.

That is not just my view but the view of, for example, the Constitution Committee. I commend to your Lordships paragraphs 27 to 31 of the report that was published on 9 February. I also commend to your Lordships the views of the Joint Committee on Human Rights, which were published on 12 February. Paragraph 95 and conclusion 7 are extremely critical of the Bill.

I turn directly to my noble friends on the Front Bench. I do not blame them personally for what is happening. My noble friend Lord Deben and I were Ministers for many years at all levels. I know perfectly well that my noble friends will communicate our views to their departments, but I also know that they do not determine policy and it is not their fault. However, the overriding conclusion that I have come to from this whole debate is that this Government intend to railroad this Bill through without challenge.

It is on that point that I would like my noble friends to communicate another message to the Government. People such as me are Conservatives. We will always be Conservatives. Yet we are deeply troubled, deeply distressed, by how this Government are operating. It is manifest in many ways in this Bill. We are disregarding the rule of law. We are ignoring the principles of the separation of power. We are disapplying protection given to minorities. We are becoming immoderate in our tone. We have abandoned pragmatism in the conduct of policy. I know why they are doing that. They suppose that they can win the election by dog-whistle policy, but they cannot. The outcome of the election is probably already determined by circumstance and by Mr Johnson and by Liz Truss and various other things that have already happened and which the public are probably not going to forgive the Government for. You cannot solve that problem by dog-whistle policies, but you can deepen the rift between the electorate and us.

I am a great admirer of Matthew Parris, one of my oldest friends. His articles, which he writes regularly, tell one what moderate conservatism should be about. At this stage in government, we need to show that we can reinstate the traditional values of conservatism. That will not save us at the general election, but it will make recovery a lot easier.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, it is a privilege to follow the noble Viscount—probably inadequately. I added my name to the clause stand-part notice because, as I made clear at Second Reading, I am dismayed by Clause 3’s disapplication of parts of the Human Rights Act. I support everything that has already been said by various noble Lords.

The main concern raised by bodies such as the Equality and Human Rights Commission, the Northern Ireland Human Rights Commission, the Law Society and the JCHR, on a majority, together with more than 250 civil society organisations, is that, in the words of the EHRC, this

“undermines the fundamental principle of the universality of human rights” and

“damages the UK’s human rights legal framework”.

One of them, MIN voices, a group of asylum seekers and refugees, some of whom are from Rwanda, have said how painful they have found the idea of a two-tier human rights system and the loss of what they rightly see as a legal right to seek protection.

Not only is this becoming a habit on the part of the Government, as my noble friend Lady Chakrabarti has pointed out, but the JCHR report, on a majority, cites as particularly alarming the disapplication, for the first time ever, of Section 6 of the HRA. It warns that this

“would effectively grant public authorities statutory permission to act in a manner that is incompatible with human rights standards”.

As such,

“it is very hard to see how it could be consistent with a commitment to complying with international law”.

As has already been pointed out, the Constitution Committee comments that disapplication—

Photo of Lord Murray of Blidworth Lord Murray of Blidworth Conservative 5:00, 14 February 2024

The noble Baroness appears to suggest that, because the Bill disapplies Section 6, local authorities would be obliged to act or could act in a manner that was unlawful. She ignores the fact that, from the British accession to the European Convention on Human Rights until 1998, our domestic bodies were still deemed to be a part of the United Kingdom state, which obviously had an international obligation to comply with the rights convention. All the provision of Section 6 did was to impose a domestic law obligation. Its removal in this context does not have the effect that the noble Baroness seeks to persuade your Lordships it does.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

I am sorry, but I was only quoting—I know it was a majority vote and that the noble Lord did not vote for this bit—from the Joint Committee on Human Rights report, which still stands, even though it was a majority vote for that particular paragraph. Perhaps I will leave it to the lawyers, if I have not quite got the legal point.

The Constitution Committee comments that disapplication of HRA provisions is of “considerable constitutional concern”, and invites us to

“consider the potential consequences of undermining the universal application of human rights”.

The UNHCR expresses its deep concern at the exclusion of asylum seekers from some of the human rights protections, not only because it

“undermines the universality of human rights” but because of its

“implications for the rule of law both domestically and internationally”, setting

“an acutely troubling precedent”.

Universality means all humans, regardless of their immigration status. In the words of the Universal Declaration of Human Rights, universality principles stem from recognition of the

“inherent dignity and of the equal and inalienable rights of all members”— all members—

“of the human family”.

As I said at Second Reading, breaching this principle speaks volumes as to how the Government see asylum seekers, for they are, in effect, being treated as less than human.

I make no apology for repeating these points from Second Reading, because even though a number of noble Lords raised their disquiet about the disapplication of the Human Rights Act, the Minister, the noble Lord, Lord Sharpe, did not address our concerns in his closing speech or his subsequent letter to Peers.

The closest the Minister came in the debate was perhaps to do so implicitly, when he dismissed in a peremptory manner the advice of the Northern Ireland Human Rights Commission, which was established under the Northern Ireland Act 1998 to

“review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights”.

When challenged by the noble Baroness, Lady O’Loan, who is no longer in her place, as to whether he had actually read the commission’s advice, he responded that

“the Government take a different view to those opinions”.—[Official Report, 29/1/24; col. 1099.]

The commission’s opinion, which is perhaps better described as formal advice, concludes that the Bill

“does not consider the Belfast (Good Friday) Agreement, and the integral role of both the Human Rights Act and ECHR in the complex fabric of the NI Peace Process and devolution”.

Indeed, it warns that it

“appears to be incompatible with obligations under the … Agreement”.

That position is echoed by the Human Rights Consortium in Northern Ireland. In its view, these proposals

“represent a violation of the Belfast/Good Friday Agreement by effectively limiting access to the Human Rights Act … for those seeking refuge in Northern Ireland. They also represent a violation

The JCHR saw these concerns as “serious” and, by a majority, reported that

“The Government has not adequately explained why it considers those concerns are not merited”.

It therefore asks for

“a full explanation of why it”— the Government—

“considers the Bill to be consistent with the Windsor Framework and Good Friday Agreement before … . Report stage”.

I am not quite sure which Minister will be responding, but will the noble and learned Lord undertake to provide such an explanation? Can he please explain why we should put more faith in the Government’s interpretation of the implications for the Belfast/Good Friday agreement than those of both official and unofficial human rights watchdogs in Northern Ireland? That is all the more so given the Constitution Committee’s invitation to us

“to pay particular attention to the constitutional consequences … for the Good Friday Agreement”, and the questions that it raises about the compatibility of Clause 3 with ECHR rights. I know that the question of Northern Ireland came up late on Monday, but it was from a rather different perspective.

Finally, more generally, can the Minister tell us what he thinks the universality of human rights actually means? What is the Government’s justification for breaching this fundamental tenet of human rights?

Photo of The Bishop of Chelmsford The Bishop of Chelmsford Bishop

My Lords, I support Amendment 33 from the noble Lord, Lord Kirkhope of Harrogate, to which I am a signatory. I am grateful to the noble Lord for the amendment and I welcome the opportunity to discuss the role of Parliament if a higher court were to declare this legislation to be incompatible with the convention right, or indeed a number of rights.

We should not forget that the Government have been unable to make a statement in the Bill that it is compatible with convention rights. As the Government nevertheless wish Parliament to proceed with the Bill, it seems prudent to probe what the role of Parliament would be in determining how any potential incompatibility should be addressed. In fact, the Attorney-General has said in the Government’s own legal position paper that it should be for Parliament to address any determination of incompatibility by the courts. The noble Lord, Lord Kirkhope, has eloquently set out the motivation for this amendment, and I agree that what it does is simply to expound what parliamentary sovereignty would look like in this context.

I appreciate that the Government believe that there is no basis for a declaration of incompatibility, and that therefore Section 4 of the Human Rights Act has not been disapplied. However, if Parliament proceeds to pass the Bill on the basis of this view, but the domestic courts declare otherwise, can the Minister say what objection there can be for giving Parliament a clear opportunity to revisit this issue? Surely the Government and Members across all Benches agree that parliamentary sovereignty includes the legislative function’s ability to oversee the executive function. As the legal position paper reads:

“The principle that Parliament should be able to address any determination by the courts of incompatibility, rather than primary legislation being quashed by the courts, is part of the fundamental basis of Parliamentary sovereignty”.

The Human Rights Act does not compel the Government or Parliament to remedy an incompatibility, but Parliament must be able to take steps to do so. It is not unreasonable to expect Ministers to explain—and to explain without delay—why they may not be bringing forward a remedial order. If the Minister disagrees with this supposition, can I ask him to please make clear the Government’s position?

Your Lordships will know that we have spoken with one voice on these Benches, as we believe that the Rwandan partnership agreement is an abdication of both our legal and our moral responsibility to refugees seeking sanctuary here in the UK. It is highly disturbing that this Bill implies that human rights are somewhat discretionary, somehow no longer universal, and that they can be disapplied for those reasons outlined in domestic law.

The fundamental truth that I believe in is that every person is equally deserving of rights, as every person is equally made in the image of God. However, this is not just a theological statement but also an indisputable legal principle that underpins our international human rights framework: that all are equal before the law. Noble Lords will know that I am not a lawyer, but this point was very well made by the noble Baroness, Lady Chakrabarti. She made it powerfully, better than I could do. Removing asylum seekers from certain protections enshrined by the Human Rights Act severely undermines the universality of human rights and our collective access to justice. As the refugee convention states, protection is not a simple concession made to the refugee; he is not an object of assistance but rather a subject of rights and duties.

Human rights are not an opt-in or opt-out concept, and Section 4 of the Human Rights Act gives the courts the opportunity to remind us of that. This is surely central to the UK’s commitment to the rule of law. Parliament has the right to create law, but our authority cannot extend to creating injustices. Parliament therefore may need to ask whether we should maintain parliamentary consent if the Bill is found to not afford adequate protection of fundamental human rights, and Amendment 33 facilitates this. It is a perilous time for the protection of human rights across the globe, and the UK’s contribution should not be to diminish their value or put them further out of reach for some of the world’s most vulnerable people. I hope and pray, therefore, that we have the chance to revisit the proposals in the Bill.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

My Lords, I shall speak in qualified support of Amendment 33, but before I do so I should say that it is a pleasure to follow the right reverend Prelate. Outside this House as well as within the House, I have heard her deploying her calm, compelling advice on a range of subjects connected with refugees and asylum seekers, and she has done so with her usual skill this evening.

Before I get to Amendment 33, however, I need to make two apologies and I hope the court will bear with me. The first is for my absence from the Committee until I arrived back this afternoon. My second apology is that right at the end of the debate at Second Reading, I made a factual error, for which I take full responsibility, although the advice came from elsewhere, when I said that homosexual acts were still illegal in Rwanda. I am glad to say that homosexual acts are not illegal in Rwanda: I was wrong. Having said that, the evidence of how homosexual acts are seen by society in Rwanda is now well behind the law that the Government there have introduced.

I turn to Amendment 33. We heard earlier from the noble and learned Lord, Lord Stewart, about the importance of Parliament as a court. Yes, the lawyers are more familiar than others with the expression “the high court of Parliament”. It is a nice conceit that Parliament likes to deploy from time to time, but it does not actually add up to a statement of fact. Let us just think about how courts operate. I am concerned to some extent about the abstraction of our debates on the subjects we are discussing at the moment. Let us consider what actually happens when a lawyer—say me or one of a number of my noble friends and colleagues around the House—has a client, in a room which they have entered extremely nervously, or in a very unpleasant surrounding in a place of detention, who has a very serious problem on which their whole future depends, whether it is a very long prison sentence, the break-up of the family or being sent to a faraway country where they never intended to go.

What we as lawyers do is, first, to analyse the complaint that is made. Secondly, we give an opinion as to whether there is an injustice. I hope that we are always frank; we sometimes have to be cruel to be kind in telling the truth. But if there is an injustice then we explain that the golden thread of English law actually has a number of strands. Yes, one is the jury system— I heard that replayed on the radio today—but another is that if there is a wrong, there is a remedy for it. It may be difficult to achieve a remedy for the wrong but there is a remedy and a procedure, and that procedure can be taken to a court.

In 50 or more years as a barrister, I have never sat in a room with a client and said, “We’re going to take your case to the court of Parliament”. They would rightly look at me with a face full of risibility and say, “What on earth do you mean? What is that concept all about?” If there is to be a court of Parliament applicable to what we are discussing, I suspect that Amendment 33, spoken to so ably by the noble Lord, Lord Kirkhope, and the right reverend Prelate, at least goes some of the way to showing how such a court could work. As set out in the amendment, it would require “a declaration of incompatibility”, which would not in itself produce a remedy, followed by an act or a failure to act by a Minister, which would then be discussed in this “court of Parliament”.

If we are not to have a normal judicial process, what is suggested in Amendment 33 at least goes some of the way. What is the result? If it goes some of the way and those of us who feel both viscerally and intellectually—the two are not incompatible—opposed to the general design of the Bill are looking for a way to allow the Government to have their legislation, on which they are so determined, but with a mitigation that can be determined through a court in relation to allegations of the generic unsafeness of Rwanda, then there we have the beginning of it, perhaps to be worked into a more sophisticated amendment on Report.

We were told by the noble and learned Lord that Parliament is a court because it cannot bind its successors. However, that sets an unrealistic task for the person who is sitting in the room with a barrister who is desperate for his or her future and is expecting an opinion to be given as to how a wrong can be put right. If Rwanda is demonstrably unsafe, there must be a justiciable and realistically available method of providing a remedy, even if that is by a construct of the sort in Amendment 33.

As for domestic proceedings, for example, I once appeared in a judicial review case for some female litigants who were IRA prisoners. They were being strip-searched in a prison far more often than was appropriate or necessary, so I was able to argue before what is now called the Administrative Court in judicial review that the decision not to stop that strip-searching—a decision by a Minister—was Wednesbury unreasonable, as we would say in the law. That is the normal process we follow and what we are doing here, unless at the very least we include something like Amendment 33, is to allow for there to be no remedy which can be offered to that person sitting in the room with the barrister. I urge the Government to consider this amendment, offered from a highly respected member of their own party, so that it may be a way of finding a compromise which some of us, at least, will be able to accept.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 5:15, 14 February 2024

Does the noble Lord share the concern, that I and various committees of your Lordships’ House have, that the declaration of incompatibility, by itself and without the other remedies and provisions of the Human Rights Act, is not an effective remedy for convention rights? That is the first part of my concern.

The second part is more political: if, because of this Act, the only legal court, as opposed to metaphorical court, that still has jurisdiction to look at the safety of Rwanda—for example, for torture victims—is the European Court of Human Rights in Strasbourg, the Prime Minister will have turned courts into foreign courts. The collision course between the UK and the Strasbourg court will be determined.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

On the noble Baroness’s first question, I agree with the sentiments that she expressed earlier.

I will answer her second question slightly differently: I am puzzled by the hostility that some in the governing party show to the European Court of Human Rights. My understanding is that, on a weekly if not monthly basis, our Government call the European Convention on Human Rights into use to justify government arguments in individual cases. I do not understand that the Government are saying that they do not want to use the convention to their advantage anymore; it is done on a very selective basis for a small number of cases, and generally against the justice of those cases.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, all of us lawyers can tell war stories about cases that we have been involved in or that we remember, but the first test of the declaration of incompatibility happened after the introduction of the Human Rights Act, when 9/11 had happened and we too were concerned with national security. We entered into a process of arresting people—detention without trial. It was a shameful thing at that time, and the case worked its way through the courts, which said that this is not compatible not only with our respect for due process and the rule of law but with the human rights protections under our new legislation. The Supreme Court—actually it was the committee of the House of Lords at that time—in the case of A and others v Secretary of State decided that this was indeed in contravention of the Human Rights Act. It spoke about how foreign nationals in particular were being gathered together in detention. There were issues about creating hierarchies and about detention without due process. As a result, a declaration of incompatibility was made.

It is important for people to know that what happened then was that the Government of the day—it happened to be a Labour Government—respected the court’s decision. That is the concern of some of us now: there seems to be less respect for court decisions. That worries us. In the ordinary way, if our Supreme Court were to make a declaration of incompatibility, one would expect a Government to do as the Labour Government did at that time, which was to look for ways in which they could introduce law that was not discriminatory to those to whom it applied and that introduced a certain level of oversight and due process. Nobody would know that better than my colleagues on the Cross Benches who, as lawyers then, sat in special capacities to oversee that sort of legislation.

It was a very interesting moment, because it was about declarations of incompatibility and how Governments should respect courts that are saying, “This is incompatible”. It concerns us that there seems to be a rising level of disrespect for the rule of law—it is happening not just in this country but elsewhere—but we should be better than other places, because that is deeply embedded in our tradition and is so important to us.

In answer to what was said by the noble Lord, Lord Murray, that somehow the European Convention on Human Rights was invoked even before the Human Rights Act, in fact it took six years to take cases from start to finish to get to the European court on matters, and that is not what we wanted. That is what the Human Rights Act was all about: bringing human rights home. That is what it did, and it is something that we should all be proud of.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

My Lords, I took it that the noble Baroness was asking me a question from the way she started—no, do not ask again. First, I absolutely yield pre-eminence to her in anything related to war stories. On her substantive point, she is right. I was the Independent Reviewer of Terrorism Legislation at the time when holding people without charge in prisons on suspicion of terrorism was declared unlawful. In 2005, the law was changed. It was changed only because of the intervention of the courts following rational and detailed argument. The country did not become a more dangerous place. It became a more lawful place, with better argument about the results. There were huge benefits from that change, but it was made only because there was a fairly complex but easily dealt with legal process.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

I rise with great humbleness to intervene at this point. I was planning to refer to the noble Baroness, Lady Chakrabarti. I know that she has a book coming out shortly, Human Rights: The Case for the Defence. After listening to the noble Baroness, Lady Kennedy, I feel that possibly one of the two noble Baronesses should write a book “Courts and the Law: The Case for the Defence” because it seems to have been clearly identified that that is something we need. The point I want to make about the title of the noble Baroness’s book—she has kindly given me a copy, and I have not had time to read it yet, but I will —is how tragic it is that we feel as if we have to make a case for the defence of human rights. That is the place we are in now. That explains why I chose to attach my name to the notice of our intention to oppose the Clause 3 standing part of the Bill, as did the noble Lord, Lord German, the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Lister.

I think it is worth going back to the title of this clause:

“Disapplication of the Human Rights Act 1998”.

I fully understand that other amendments in this group are trying to make this less bad, but, following what the noble Viscount, Lord Hailsham, said, I feel that crying out in opposition to any disapplication of human rights is where I have to be. It is the only place that I feel that I can be. This picks up points made by the right reverend Prelate the Bishop of Chelmsford that human rights have to be universal. I was looking at one of the main United Nations websites, which defines human rights as

“rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status”.

If we take human rights away from some people, it does not affect just those people; it makes all of us far poorer and far more vulnerable.

Photo of Lord Deben Lord Deben Conservative

My Lords, I remember as a young boy walking with my father in a town. We passed a building which had “Constitutional Club” written on it. I said to him, “What does that mean?”, and he said, “It is the Conservative club. It is called a constitutional club because the Conservative Party believes that the constitution is very important to maintain the stability of the nation”. I rise to support my noble friend in his comments about this Bill in general and the particular clause which we are discussing now.

It is not a clause that respects our constitution, and, in that, it undermines our stability. By disapplying the Human Rights Act to some people, we disapply it to all of us, because we are saying that some people are worth more than other people. I find that, philosophically and religiously, wholly unacceptable. It is also unconstitutional; there is no argument that can maintain it. I rise only to say to my noble friends on the Front Bench that what my noble friend Lord Hailsham said applies to me and to very large numbers of other people. This party is not Conservative in presenting this Bill. Mrs Thatcher would never have produced it; no Prime Minister until two ago would have produced it. This is a unique situation, and the reason we feel so angry about it is that the name “Conservative” has been taken by those who do not have Conservative principles.

Photo of The Bishop of St Edmundsbury and Ipswich The Bishop of St Edmundsbury and Ipswich Bishop 5:30, 14 February 2024

My Lords, it is a pleasure to follow the noble Lord from Suffolk. The most reverend Primate the Archbishop of Canterbury regrets that he cannot be in his place to speak to Amendment 36, tabled in the name of the noble Baroness who has just briefly left, and to which he has added his name. I will speak briefly and again repeat the moral point.

The amendment leaves out Clause 3, where the Bill disapplies large chunks of the Human Rights Act and replaces it instead with one very limited disapplication of the Act to allow the Secretary of State to lay positive UNHCR advice before Parliament. This seems a necessary corrective to the wider issues in the Bill and supports the other amendments tabled by the noble Baroness, Lady Chakrabarti, to Clause 1 of the Bill, to give the UNHCR a role in providing positive advice on the safety of Rwanda before any asylum seekers can be sent there.

As my right reverend friend the Bishop of London said at Second Reading, in this Bill the Government are effectively deciding to whom human rights apply and to whom they do not—and specifically that certain rights do not apply to asylum seekers. As she asked, has history not taught us the risk of this? It undermines the basis on which human rights are made: the principle of universality. At the heart of the faith that I espouse is a belief in the precious value of every human being, asylum seekers included. Clause 3 of this Bill, and the Bill as a whole, which I described at Second Reading as “immoral”, risks placing less value on some human beings than on others—and, as the noble Viscount, Lord Hailsham, said, that is a very slippery slope indeed.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

My Lords, I am absolutely not entitled to speak on the Human Rights Act, but I found that the arguments advanced by the noble Lord, Lord Kirkhope, rather convincing and attractive. The House should remember that the noble Lord knows whereof he speaks—he served in the Home Office with the relevant portfolio.

I want to put in a little word for the outside world. My name is on Amendment 31, which was so well moved by the noble Lord, Lord Scriven. The reason I was attracted to his amendment was not so much because the notwithstanding clause covers the Human Rights Act but because it also covers any interpretation of international law by a court or tribunal. Of course, we have international law defined in this Bill as

“the Human Rights Convention … the Refugee Convention … the International Covenant on Civil and Political Rights … the United Nations Convention against Torture … the Convention a fairly wide definition.

Prohibiting the use of any arguments derived from international law as a way of trying to override the ruling—which all decision-makers, including Ministers, immigration officers, tribunals and courts, must abide by—that Rwanda is a safe country is a fairly major thing to do.

The legal adviser to the Foreign Secretary is probably the most important official in the Foreign Office—certainly more important than the Permanent Secretary—because they have the task of trying to ensure that what this country does and how it does it remains within international law. Sometimes that brings them into conflict with the Permanent Secretary, who dreams up all sorts of wheezes that the legal adviser rules out, and the Foreign Secretary automatically goes with the legal adviser.

I am talking not just of Foreign Secretaries such as Geoffrey Howe who knew their law, but Foreign Secretaries in general. Down the years, Foreign Secretaries in this country have tended to believe that respect for the international rule of law was in the UK’s interest. The idea that one can pick and choose, dine à la carte and say “Well, we’re not going to apply that bit” is extraordinarily dangerous. The habit could catch on. We have heard already in this debate how the Prime Minister of Pakistan has noticed what we are up to in this Bill and is using it as a justification for sending Afghans fleeing the Taliban back to Afghanistan. We are setting a very dangerous precedent.

Mrs Thatcher has been referred to. Whatever arguments officials such as myself put to her, she would always say “Well, we need to stick within the law”. When we lost cases, she would say, “We can appeal if you think we have a chance, but we must respect the outcome if we lose”. As we have this debate and watch the travails in the Conservative Party, hearing moving speeches such as those from the noble Viscount, Lord Hailsham, and the noble Lord, Lord Deben, there is a missed procession watching us: the Carringtons, the Douglas-Homes, the Howes—and I do wish Douglas Hurd could be with us. None of these people would have allowed a Government in which they had the privilege of serving to put forward a Bill which decided that international law could be set aside.

Photo of Baroness Lawlor Baroness Lawlor Conservative

My Lords, I have found this group of amendments very interesting and I am grateful to the noble Lord, Lord Kirkhope, for introducing it. But there has been a liberal use of certain concepts in the debate that I would like to comment on. We have heard a great deal about parliamentary sovereignty and history, including the history of the party on whose Benches I have the honour to sit.

The Conservative Party is a very broad church; it is no more the party of my noble friend Lord Hailsham than the great party opposite is the party of Mr Corbyn. These are great parties because, from time to time, they catch the hem of history as she passes by. On this occasion, I suggest that it is well worth listening to the Front Bench of this party, with its great electoral mandate, to do what is necessary to control these borders. I have no doubt that the party opposite will catch that hem sometime, but on this matter it is with our Front Bench.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

My Lords, I am afraid that this will be a more prosaic and lawyerly contribution than the two we have just heard, but at least I will keep it short. When I first read the title of Clause 3, I did not appreciate quite how radical and unprecedented it is. I thought it right to bring that to the attention of the Committee, because I sit on the Constitution Committee with the noble and learned Lord, Lord Falconer, and others, and it certainly preoccupied us there. It is true that the Government have recently acquired what has been called a habit of seeking to disapply the strong duty of interpretation in Section 3 of the Human Rights Act. We saw that in the Illegal Migration Act 2023 and we see it in the Victims and Prisoners Bill. Had Mr Raab’s Bill of Rights Bill been brought forward, we would have seen a general disapplication of Section 3 across the board.

When we came to look at this in the Constitution Committee, we noticed the ways in which Clause 3 goes beyond even these precedents. It disapplies Section 3 but also Section 2 and Sections 6 to 9; I believe I am right in saying that neither of those things has ever been done before. Furthermore, those novel disapplications apply more widely than just to this Bill. Clause 3(3) states that Section 2 does not apply to Rwanda safe country determinations

“under any provision of, or made under, the Immigration Acts”.

Thirteen such Acts are listed by the Constitution Committee in a footnote. Clause 3(5) clarifies that Sections 6 to 9 of the Human Rights Act do not apply to sections of the Illegal Migration Act 2023 in relation to the assessment of whether removal to Rwanda could give rise to serious and irreversible harm.

Of course, the noble Lord, Lord Murray, is right that there was a world before the Human Rights Act—a less satisfactory world, I would say, in terms of human rights protection. What all this means in practice is that decision-makers and courts making decisions in relation to the safety of Rwanda, save in an application for a declaration of incompatibility, are instructed to ignore what the ECHR has to say about one of the most important of human rights, perhaps the most important of all—the right not to be subject to torture or inhuman and degrading treatment—and to ignore it, furthermore, in relation to one group only: the particularly vulnerable group of asylum seekers. That puts added weight on Strasbourg, as the noble Baroness, Lady Kennedy, said, as a backstop. That backstop is itself weakened, as we will see when we come on to Clause 5.

As a unanimous Constitution Committee said in our usual moderate terms:

“This is of considerable constitutional concern”—

I pause to note that the four Conservative members of that committee signed up to that formulation. We also invited the House

“to consider the potential consequences of undermining the universal application of human rights”.

For my part, I consider that this is an unhappy and dangerous road to go down.

Photo of Lord Tugendhat Lord Tugendhat Conservative

My Lords, I will briefly address the point raised by my noble friend Lady Lawlor. The Conservative Party is a great historic party, and there is a lot to be said for drawing on the wisdom of ages. What my noble friend Lord Deben said a few minutes ago about Mrs Thatcher’s attitude, Douglas Hurd’s attitude and so forth is something we ought to consider. They were important figures in our history; they contributed a great deal to the country as well as the party.

If one goes back further, one of the progenitors of the European Convention on Human Rights was of course David Maxwell Fyfe, Lord Kilmuir, one of our Lord Chancellors. He was working under the supervision of Winston Churchill, who regarded the European Convention on Human Rights as a great achievement. Now, my noble friend Lady Lawlor may feel that our present Front Bench understands the world better than Winston Churchill or Mrs Thatcher. Perhaps it does; I am not sure.

Photo of Lord Tugendhat Lord Tugendhat Conservative

Let me finish. It is also finally worth remembering that the one Conservative Prime Minister since the war who did not have the same respect for the rule of law and international law as the people I have mentioned was Anthony Eden. He does not stand as high in the historic record as Churchill or Thatcher.

Photo of Baroness Lawlor Baroness Lawlor Conservative 5:45, 14 February 2024

My Lords, I thank my noble friend for saying I could hold on. My remarks were related to what was being debated at that point. In respect of Sir Winston Churchill, about whom I have written— I agree with my noble friend’s very sensible assessment of him—he was dealing with another world. Mrs Thatcher was dealing with another world. I am not saying, with respect to the law, that her views were any different from those of the Front Bench we have. Our Front Bench is seeking to address the problems that have so exercised the electorate of this country, from whom the authority of Parliament is derived. For this reason, we must think of the new circumstances that have arisen, which we as a country have entrusted to this Parliament and this Government.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

I understand the point the noble Baroness is making; it is a very valid point. But what deduction should one draw? One of the tasks of the legal advisers in the Foreign Office is to lead on the development of international law. I do not argue that international law is set for all time, fossilised and ossified. Where are the proposals from the noble Baroness and her friends for the future development of international law? Why does she simply say that we must pull out of the bits we do not like? Where are the ideas for reforming and advancing? That is where the hem of history is going.

Photo of Lord Murray of Blidworth Lord Murray of Blidworth Conservative

My Lords, tempted though I am to engage with the noble Lord, Lord Kerr, on that very interesting philosophical question, that might be beyond the ambit of this particular amendment.

I will speak in particular to Amendment 33, which I oppose because it has no purpose. I remind the Committee that Section 4 of the Human Rights Act provides to the courts, at High Court level and above, a power to make a declaration of incompatibility, but the section itself is clear. Section 4(6) of that Act sets out in crystal clear terms:

“A declaration under this section (‘a declaration of incompatibility’) … does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and … is not binding on the parties to the proceedings in which it is made”.

In those circumstances, the noble Baroness, Lady Chakrabarti, said that this amendment is required to preserve some sort of responsibility belonging to this Parliament. That seems to be a misreading of Section 10 of the Human Rights Act, which provides a power to take remedial action. The important part in Section 10(2) says:

“If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility”.

It is therefore clear that, if there is a declaration of incompatibility, the default setting is that the law continues as passed by this Parliament. Therefore, there is no need for the amendment proposed by my noble friend Lord Kirkhope because it is clear that, if no remedial order is laid, the law remains as it is.

Photo of Lord Murray of Blidworth Lord Murray of Blidworth Conservative

I will give way to the noble Baroness, Lady Chakrabarti, in a second. The very idea that, in some way, the argument would be better achieved by accelerating the process is simply mistaken, not least because Section 10 says that the declaration of incompatibility can take effect only following the conclusion of the final appeal and confirmation by the parties that that is so. That is likely to be a long time afterwards, given the nature of the types of cases that tend to go to appellate courts. So there is no need for Amendment 33. I give way.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

I am grateful to the noble Lord for giving way. I am intervening because he referred to something I said. Let me be clear: I totally agree with his analysis that Section 4 declarations of incompatibility have no binding legal effect; I think that I said so and emphasised that in my remarks. I referred to that as part of the exquisite constitutional compromise between parliamentary sovereignty, on the one hand, and the rule of the law, on the other, that is the Human Rights Act’s scheme.

I am delighted that the noble Lord, Lord Murray of Blidworth, knows the scheme so well and is seeking to honour it so well. In fact, when he reads from Sections 4 and 10, he treats them as sacrosanct—something that the Government do not generally do in relation to the Bill. If it is okay for the Government to disapply reams of the Human Rights Act for the purposes of sending some of the most vulnerable people in our territories to Rwanda, why should his noble friend—the noble Lord, Lord Kirkhope—not be able to improve on the Human Rights Act too, by accelerating the procedure for bringing a declaration to Parliament, rather than to the Government, for consideration?

Photo of Lord Murray of Blidworth Lord Murray of Blidworth Conservative

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.

Photo of Lord Kirkhope of Harrogate Lord Kirkhope of Harrogate Conservative

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.

Photo of Lord Murray of Blidworth Lord Murray of Blidworth Conservative

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.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, this group of amendments focuses on Clause 3 and demonstrates the threat to the domestic rule of law posed by the Bill. The Bill proposes ripping up not only our international obligations but our existing domestic legal structure, and it sets a dangerous precedent. It is clear that, when taken in combination with the serious limitations put on our own courts to decide what is and is not true, the Bill shows no respect for our domestic structures. I ask again: what are we getting in return? Do the Government really believe that delivering this scheme as it is currently proposed is worth it?

The noble Lord, Lord Scriven, moved the first amendment in this group, and he said, quite rightly, that the Bill usurps the role of the domestic courts and disapplies the Human Rights Act. He emphasised that the domestic courts are usurped within the Bill.

There has been a lot of discussion about Amendment 33 from the noble Lord, Lord Kirkhope, and there was some legal discussion just now between noble Lords about the best way that that amendment can prevent delay in considering making a remedial order. I will not comment further on that because it is above my pay grade as a magistrate rather than a lawyer who deals in this type of law.

More widely, there were very wide-ranging comments on the law, the theological principles underlying the Human Rights Act itself, and the principle of treating everybody equally, and an almost theological debate about whether this is a properly Conservative Bill. I am reluctant to trespass on theological or Conservative Party debates but, from the Opposition’s point of view, this group and the disapplication of a number of elements within the Human Rights Act go to the core of the objections to the Bill. I am sure we will come back to this in some form at a later stage. I look forward to the Minister’s response.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, as always, I am grateful to noble Lords who contributed to the debate on this group and added their wisdom to the Committee’s deliberations in relation thereto.

Clause 3 disapplies in particular circumstances certain provisions of the Human Rights Act 1998, specifically Sections 2, 3 and 6 to 9. I state and emphasise at the outset that we do not strip human rights from anybody by this means. It is

“a fundamental tenet of modern human rights that they are universal and indivisible”—

I happily associate myself with the views of the noble Baroness, Lady Chakrabarti, and the right reverend Prelate the Bishop of Chelmsford in that regard—

“this is reflected in, amongst many other things, Article 2 of the Universal Declaration of Human Rights, Article 2 of the International Covenant on Civil and Political Rights, and Articles 1 and 14 of the ECHR.

But it is legitimate to treat people differently in different circumstances: to take just two examples, a citizen may legitimately be treated differently, and have different legal rights, from a non-national; and a person in detention may have certain rights restricted when compared to a person at liberty. The ECHR, as interpreted by the case law of the ECtHR, fully recognises this principle. Rights are therefore universal, but what rights may mean for different people may legitimately differ depending on the circumstances, so long as any difference in treatment is justifiable within the framework of the relevant right. Therefore, everybody holds their rights without distinction on any ground; but the extent to which those rights may be limited, restricted, interfered with, or indeed vindicated, depends on each individual’s circumstances, and the legitimacy of the limitation, restriction, interference, etc.

To be clear, there is nothing in the Safety of Rwanda (Asylum and Immigration) Bill that deprives any person of any of their human rights: in accordance with Article 1 of the ECHR, we shall continue to secure to everyone within our jurisdiction the rights and freedoms defined in the Convention. What we can legitimately do, and what we are doing, is to draw legal distinctions between those with a legitimate right to be in this country, and those who have come to this country illegally”.

I have just quoted ad longum—extensively—the submission of the Lord Chancellor to the Joint Committee on Human Rights last year.

The disapplication of these provisions will ensure that the Bill’s provisions are interpreted to meet the legislative intent of Parliament and make it clear that people are prevented from bringing systemic challenges in our domestic courts about the general safety of Rwanda to prevent their removal.

The noble Lord, Lord Scriven, in opening the debate, referred to the underlying purpose as being to stop the boats. What we are doing is responding to the decision of the United Kingdom Supreme Court and to the points made by it in relation to a complex and multifaceted problem.

Section 3 of the Human Rights Act can require courts to interpret the meaning of legislation to make it compatible with convention rights, so far as it is possible so to do. Disapplying Section 3 confirms and ensures that the provisions will be interpreted in accord with the legislative intent of Parliament; it follows the approach taken in the Illegal Migration Act.

Disapplying Section 2 ensures that considerations about the Rwanda treaty and the safety of Rwanda are located firmly in the domestic sphere and, taken together with the rest of Clause 3 and the Bill as a whole, makes it clear that appropriate deference should be given to Parliament’s sovereign and final determination on the mater.

I turn first to Amendment 36, tabled by the noble Baroness, Lady Chakrabarti, which seeks to replace this clause with a new clause that would mean that the Human Rights Act applied in full to this legislation and to removals to Rwanda, save for limited disapplication of Section 6. As the Home Secretary set out in the other place, in order to prevent individual claims to prevent removal, the Bill disapplies certain relevant provisions from the Human Rights Act. We consider this to be fair, necessary and lawful, because we have now addressed every reason that has been used to prevent removal to Rwanda. With the leave of the Committee, I will not reply to the specific invitations to say what the ultimate justification for this is, as presented by the noble Baroness and by my noble friend Lord Deben. However, I will say that we are doing as little modification to the law as is necessary, in the context of the present circumstances, to make the policy work, demonstrating, I submit, the use of that very caution which my noble friend Lord Hailsham called for. We are not, as I said at the head of my submission, treating asylum seekers as being less than human. As a Government, we are taking steps to control the country’s borders, one of the most important functions which a Government can fulfil.

The right reverend Prelate the Bishop of Chelmsford made a number of points, on some of which I have sought allay her concerns already. With the right reverend Prelate’s pardon, I will deal with a couple of slightly technical matters. She referred to Section 19(1)(b) of the Human Rights Act. I did cover that point; I will come back to it, if I may, in the course of my submission, but I covered it in speaking to the Committee on Monday.

On the second slightly technical point—and I mention it really for the benefit of Hansard’s record of your Lordships’ Committee’s proceedings—the right reverend Prelate referred to a matter as being the Attorney-General’s view. I simply place it on record that the document from which she quoted was the government legal position. I have to say that because the Committee will be aware that there is a convention on law officers’ advice and opinions, so it is correct to say that the document from which the right reverend Prelate quoted was not that advice, lest the record present in any sense the idea that that convention has been departed from.

The noble Baroness’s Amendment 36 seeks to replace this clause with a new clause, meaning that the Human Rights Act applies in full to this legislation and to removals to Rwanda, save for the limited disapplication of Section 6. As I said, the Home Secretary has expressed a view in the other place to the effect that disapplication of certain provisions is necessary to prevent individual claims to prevent removal.

Clause 3 also disapplies Sections 6 to 9 from decisions, whether by decision-makers or the courts, related to the conclusive presumption that Rwanda is safe and any application of the serious and irreversible harm test. Section 6 says that it is unlawful for public authorities, which includes Home Office decision-makers and the courts, to act in a way that is incompatible with convention rights. It is a defence if the public authority could not have acted differently because of the provisions of primary legislation. Disapplying Section 6 confirms that public authorities are not bound in domestic law to act in a particular way as a consequence of convention rights. In the context of this Bill, which deems Rwanda a safe country, this measure is targeted at preventing people from frustrating removal by bringing systemic challenges in our domestic courts.

We consider, none the less, that the Bill is compatible with our international obligations. In particular, it allows individuals to bring challenges against removal to Rwanda on the basis of particular individual circumstances.

The disapplication of Sections 7 to 9 follows from the disapplication of Section 6. These are the operative provisions of the Human Rights Act that flow from Section 6, providing for judicial processes and remedies. Given that Section 6 is disapplied, these provisions are not needed.

The “notwithstanding” provision in Clause 2 requires courts to honour previous clauses within the Bill notwithstanding all relevant domestic law, the Human Rights Act to the extent disapplied by the Bill, and any alternative interpretation of international law reached by the court or tribunal.

With regard to Amendment 31, tabled by the noble Lord, Lord German, and introduced by the noble Lord, Lord Scriven, as debated at length earlier in the week, the purpose of this provision is to ensure that the courts accept Parliament’s view that Rwanda is a safe country, building on the treaty between the United Kingdom and the Government of Rwanda and published detailed evidence that the Government have used to inform their assessment on the safety of Rwanda. This is an essential part of the Bill to confirm the sovereignty of Parliament passing this legislation and directing the courts in interpreting it, to the extent which those courts may have regard to other legal sources when interpreting Clause 2.

I now turn to Amendment 33, tabled by my noble friend Lord Kirkhope of Harrogate. I am grateful for my noble friend’s acknowledgement of progress in relation to small boats by way of returns agreements and other means. The system of declarations of incompatibility under Section 4 of the Human Rights Act represents an elegant compromise—the noble Baroness, Lady Chakrabarti, described it as an exquisite compromise. It is a compromise between the value of human rights scrutiny by our domestic courts and the preservation of parliamentary sovereignty. Section 4(6) expressly does not allow a judicial ruling to prevent the operation or enforcement of legislation passed by Parliament and does not oblige any action to be taken as a result, as the Committee heard from both sides, from my noble friend Lord Murray of Blidworth and from the noble Baroness, Lady Chakrabarti.

Under the Human Rights Act, the Government are therefore under no obligation to make a proposal to Parliament to legislate, or indeed take any action, as a result of a declaration of incompatibility. It has, however, been the accepted practice, since the introduction of the Human Rights Act, for the Government to address such declarations either through a proposal for primary legislation or by way of a remedial order.

I therefore submit that this amendment is unnecessary, as it seeks to move a Motion for the statement to be debated by each House within the period of three sitting days if a remedial order has not been laid. It seeks to make it so that declarations of incompatibility take on a binding character, which is expressly not what they were designed to be, and specifically to place pressure on the Government to present legislative proposals to Parliament. I submit that it is not for this House to legislate for parliamentary procedure in the manner of this amendment, which is designed to expand the current process relating to declarations of incompatibility.

I submit that the declaration of incompatibility procedure has worked well: it has served Parliament well. The strength of it is seen by the rarity with which Governments do not act in reflection of such declarations when they are imposed. I do not agree that they do not provide an effective remedy. I think that we are required to bear that in mind when we consider the desirability or necessity of my noble friend’s amendment.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 6:00, 14 February 2024

The noble and learned Lord’s noble friend is just trying to speed up parliamentary consideration after a declaration of incompatibility. As the nature of the noble and learned Lord’s argument throughout the Committee has been about parliamentary sovereignty, not executive diktat—“we do not need the courts”—what would be wrong with the idea that Parliament should be seized of these issues a little quicker than usual?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

Given how well the declaration of compatibility procedure is working and has worked in the past, there is no reason to innovate on that basis.

As the Minister of State for Illegal Migration set out in the other place, the United Kingdom has a long-standing tradition of ensuring that rights and liberties are protected domestically and that we are fulfilling our international human rights obligations. We remain committed to that position and will ensure that our laws continue to be fit for purpose and work for the people of the United Kingdom.

The noble Lord, Lord Kerr of Kinlochard, raised the matter of refoulement, the sending back of people to dangerous places from whence they came. I refer again to the debate of Monday night about the extent of the treaty. Although some of the provisions in the Bill are novel, the Government are satisfied that it can be implemented in line with convention rights. We know that people will seek to frustrate their removal from this country, and the Bill prevents the misuse of the courts to that effect. As such, I invite the noble Lord to withdraw his amendment.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I am sorry to prolong matters, but I asked an explicit question about Northern Ireland. I pointed out that the Bill applies to the whole of the United Kingdom. The Joint Committee on Human Rights, by majority, asked for an explanation before Report of why the Government do not accept the advice of Northern Ireland’s watchdogs —its Human Rights Commission in particular—on incompatibility with the Good Friday agreement and Windsor Framework. If he cannot provide an explanation, can I please get confirmation that we will get that explanation before Report?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

I beg the noble Baroness’s pardon for seeming to ignore her contribution. I was at fault. I touched on the Northern Ireland situation in answering Amendment 80 tabled by the noble Lord, Lord Dodds of Duncairn, on Monday night. That is to be found in the relevant Hansard at col. 120. As I said to the noble Lord, and to the noble Lord, Lord Anderson of Ipswich, I am reluctant to step outwith the responsibilities of my department in relation to Northern Ireland matters, which may have certain aspects with which I am not readily familiar. To that extent, if the noble Baroness is content, I will write to her, making sure that the answers reflect the specific questions that she has posed in debates to your Lordships’ Committee.

Photo of Lord Scriven Lord Scriven Liberal Democrat 6:15, 14 February 2024

My Lords, I thank the Minister for his responses, which are always courteous and detailed. However, I probably speak for many noble Lords when I say that he is dancing on the head of a pin that is getting smaller and smaller as Committee goes on. He is going to fall off it if he is not careful about the technical dancing that he is doing on the issue of human rights.

I thank every noble Lord who has taken part in this interesting debate, which has ranged from very technical legal issues about the application of human rights through to the future direction of the Conservative Party. That is not for me to encroach on, although I particularly warmed to the speech of the noble Lord, Lord Deben, and the approach of the noble Viscount, Lord Hailsham, about not only what it means to be a Conservative but the fundamental bedrocks of what it means to be British.

I thank the noble Lord, Lord Kirkhope of Harrogate. Not only is Harrogate a wonderful place but it is a place where a good compromise could come out. I support what the noble Baroness, Lady Chakrabarti, says—the amendment is not a wrecking amendment but a serious attempt to improve a fundamentally flawed Bill and for it to protect people.

All noble Lords who have taken part in this debate have coalesced around a couple of things. One is that you cannot tinker with the universality of human rights. Once you tinker, they go. They are applicable to everybody. The Minister gave it a good go about why the Government were not tinkering, but clearly they are. I say to the Government Front Bench that chasing short-term headlines will have significant and serious consequences for people’s rights in this country, way beyond those people who arrive on these shores by irregular routes. That is the fundamental issue that many noble Lords feel uncomfortable with.

The Minister said that this is a novel Bill. To try therefore to put in novel administrative procedures to fill the gaps that the Bill is creating in terms of the separation of powers and the rule of law will not work. I am sure that many noble Lords will come back to these issues on Report because, like me, they feel that the Government Front Bench has not answered very fundamental concerns which still exist. Having said that, I beg leave to withdraw my amendment.

Amendment 31 withdrawn.

Amendments 32 to 34 not moved.

Clause 2 agreed.