It is a pleasure to follow the right hon. and learned Member for South Swindon (Sir Robert Buckland) and many of the colleagues sat next to him who have brought an immense level of legal expertise to their concerns about the Bill. Let me try to offer something different, as somebody who is not legally qualified: a lay person’s view or perspective on what the Bill is doing, in particular why I tabled and will speak to amendment 9, and why I support the amendments in the name of my Front Bench colleagues.
This is not about the R of refugees or even the R of Rwanda; it is about the R of rights—the rights we enjoy that protect those freedoms and liberties that so many of us fight for, are passionate about, and believe are intrinsic to a good life. The Government state that the Bill is:
“a clear statement of Parliament’s view that Rwanda is safe, ‘notwithstanding’ all specified domestic legislation and the common law, and any alternative interpretation of international law including customary international law”.
For those of us who are not qualified, the word “notwithstanding” is doing an awful lot of work to justify the diminution of rights for people in our country and the concept that somehow international law does not protect us.
So much of the anger we have heard about the idea of a foreign court has come from it being about the European Court of Human Rights: that it is an affront to our democracy that that organisation is part of protecting those rights, liberties and freedoms on which we depend. How dare Winston Churchill sign us up to such a thing? How dare he believe that working with other countries was the way to protect those rights? As he said:
“In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law.”
The scoundrel. What sort of rights was he trying to protect? What sort of abuses by the state did he dare to think we might need a court to uphold for us? The right to family life? A travesty, surely. The right to privacy? I mean, goodness me, what a terrible thing to be concerned about. The right to freedom from torture or the right to liberty, or even the right to freedom of thought? Well, no wonder we need to look at all this again. How terrible those things must sound to those of us who are not legally qualified and who cannot see the rub there.
Let me to try think through a real world example of why those rights might be upheld by a third party. One could think of somebody, perhaps a Member of this House who did not have the respect and courtesy for other people speaking in this debate to even stay and listen to them shortly after he had spoken; somebody who thought that the rules did not apply to him, that the treatment of others was not something that mattered and who perhaps was far too busy worrying about his social media account. The Chair would want to hold him to account, and rightly so. Goodness, many of us would think he might need legal representation for what could happen next. He would want his day in court. He might not want to be in the Chamber when we were talking about those very issues. He might be concerned about the idea of a judge and jury existing in the same person. The very principles that led to setting up the European Court of Human Rights are ones that we all feel every single day, because it does not just defend those basic things like a right to family life or the right to privacy, it also defends a process by which those rights are upheld. Even if the Chair wanted to take somebody to task for not following the rules in this place, they might at least be entitled to a fair hearing or a fair trial for what they had done.
Yet what the Bill does is remove that concept of a fair hearing from those people in our country who are often some of the most vulnerable: people fleeing torture and persecution. They want to uphold Government Ministers as judge and jury, and it does not even align with their own data on how many people they were granting asylum to when their cases were heard. Nevertheless the point about the ECHR is the point that was understood by Churchill and, I believe, by many of us in the Chamber: we withdraw at our peril the opportunity for that freedom to be heard, that freedom for a fair trial and for somebody else to hear your case against an overbearing state.
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Article 13 of the European Court of Human Rights convention sets out the right to an effective remedy. It dares to impose on state parties, on countries that signed up to the court, that
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding”—
that word again—
“that the violation has been committed by persons acting in an official capacity.”
In lay person’s terms, when you think the Government have done you wrong, who do you turn to, to protect you? Rightly, you might want to turn to our courts, but if the Government are setting the laws it makes sense to
many of us who value freedom and liberty that there is a third party that you can adhere to. Frankly, it is a sign that I am getting old that I look at the Conservative party now and I wonder where those libertarians are, those people who recognise, rightly, the concern that a Government might be overbearing and repressive. [Interruption.] Freedom-loving indeed, but not enough for their own freedoms it seems from how this Bill starts the inevitable process of removing that right to a remedy. We all know that right-wing Governments might start with refugees, but they never end with their rights when it comes to removing them.
The Bill’s removal of the right to an article 13 remedy would not just have consequences for refugees. Many of us have debated the concept that each person should be able to have their day in court—a concept that lay persons across the world understand, for it is written not just into the European Court of Human Rights and our Human Rights Act but the United States’ convention. It is not some terrible communist, socialist, Marxist idea that people might have a remedy and the idea of due process. It is part of being a state that plays by the rules and treats people fairly. If we start to unpick that in this legislation, it has consequences not just for our immigration system but far beyond the remit that anybody has thought about. For so long it has been a byword for British liberty and freedom that we have been prepared to stand up for the rule of law, play by the rules, and, yes, be part of making them through being part of the Council of Europe. I declare an interest as somebody who took part in one of those elections to vote for one of those “terrible” pyjama-wearing judges who then has to uphold the legislation that we have helped to create.
Where does it have an impact? The hon. Member for Belfast East (Gavin Robinson) talked about the Good Friday agreement and the right hon. and learned Member for South Swindon recognised that too. Let us sound the alarm here. If the Government will not deal with it now, it must be dealt with in the other place. Peace is precious and the peace in Northern Ireland was built on the bedrock of the Good Friday agreement, and the Good Friday agreement is built on the bedrock of the European Court of Human Rights. It is baked into the Northern Ireland peace process. The Good Friday agreement placed a direct duty on the UK Government and all of us in this place to incorporate the European Court of Human Rights and its work into Northern Irish law, so that people in Northern Ireland could challenge an injustice in the courts if their rights were breached. That is not my interpretation. The Good Friday agreement explicitly states
“full incorporation in Northern Ireland law of the ECHR”
and states explicitly that the parties—us and the Irish Government—
“affirm their commitment to the mutual respect, the civil rights and the religious liberties of everyone in the community”.
When we start removing those rights, which is what the Bill does by denying the right of a refugee to go to court under article 13, we start undermining the Good Friday agreement because it does affect people in Northern Ireland. It is a principle established in UK law through section 7A of the withdrawal agreement. The Government acknowledged that when we debated it on 12 December. The Home Secretary himself acknowledged that the Bill makes
“differential treatment in different parts of the United Kingdom”
and that somehow
“the Bill will address the practical implications.”—[Official Report, 12 December 2023; Vol. 742, c. 749.]
But we have not seen any practical addressing of the implications and the potential consequences for our commitment to upholding the Good Friday agreement, an agreement that I think we would all concur, 25 years on, still matters and therefore is worth fighting for.
It matters because refugees are people too. I do not know why we have to state that in this place, but it seems increasingly that we must. The hon. Member for Belfast East was right to talk about the Angesom ruling, but the ruling shows that the Government recognised that just a few months ago. The Government said, in the Court, that it applied to refugees. Section 108 explains explicitly that the applicant and respondent both agreed that the rights and safeguards in equality underpinned by the Good Friday agreement are not excluded from asylum seekers, and that the concept of who everyone in that community was—written into the Good Friday agreement—includes those outside the background of communal conflict.
We could be in a position where there is a frying pan and a fire. If the Government proceed with this measure we will undermine the Good Friday agreement, but if they exempt Northern Ireland so that those rights are upheld they will create a loophole in the Bill, as I am sure Members on the other side of the Benches opposite—I am not sure which part of the mafia contingent that refers to these days—will recognise. It reflects the further chaos and confusion that the Government’s Rwanda legislation causes.
I tabled amendment 9 to address this issue head-on. It asks the Government to do something very simple: to set out how the Bill upholds the Good Friday agreement. Surely that is not a controversial question to ask, but it seems very controversial for us to be given an answer. Messing around with article 13 unpicks not just the Good Friday agreement but part of our trade and co-operation agreement: when dealing with international treaties, evidence that we play by the rules and are therefore good to do business with is part of the reason other countries want to work with us, and that matters post-Brexit, because our reputation is everything. Time and again, the Government have sought to undermine it by suggesting that somehow the rules should not apply to us, and that therefore people should not expect the United Kingdom to stand up for those values, abide by them and uphold them.
Article 524 of the trade and co-operation agreement states:
“The cooperation provided for in this Part is based on the Parties’ and Member States’ longstanding respect for democracy; the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the European Convention on Human Rights, and on the importance of giving effect to the rights and freedoms in that Convention domestically.”
“Giving effect” is the crucial phrase. It makes simple sense to me, as a lay person. There is no point in having rights if you cannot actually use them—if there is no Court, and no possibility of being able to seek a remedy—but that is exactly what the Bill starts to unpick. It is not a surprise to me, therefore, that Nathalie Loiseau, the chair of the committee in the European Parliament that
is charged with overseeing the trade and co-operation agreement, recognises this legislation, unamended, for what it is, namely a direct threat to that.
The worry that many of us have is not about Brussels telling the UK what to do; it is about the fact that we are heading into the months and years before the TCA is to be renegotiated. Next time a constituent comes to a Member with all the paperwork that the Tory hard Brexit has created and the TCA underpins and asks, “What are you going to do to deal with it?”, or asks about the border tax that will be introduced at the end of January and all the paperwork they are going to have to pay for at the end of April, that Member should bear in mind that the opportunity to reduce and remove all that, and to bring back the trade that we desperately need, will depend on those negotiations. Walking into them with the message “You cannot trust a word that we say as a country, because we might say that we will follow the ECHR, but if we think it does not suit us we will not, and what are you going to do about it?” is not the way to get a good deal for British business.
There are consequences from the way in which this legislation has been drafted that we have not even begun to unpick in the House, but today is our last day to do anything about it. We must not look like a country that others do not want to do business with or that is hypocritical, but that is exactly what we are. To those of us who have fought for and defended the rights of people with whom we disagree, that hypocrisy stinks strongly from the Home Office. The Home Office that wants to use the European Court of Human Rights to deny the implementation of the buffer zones for which this Parliament voted on the basis that there would be an article 9 contention under the ECHR is the same Home Office that is seeking to rip up the rights of refugees to use the ECHR when it feels like it. What is sauce for the goose is sauce for the gander. In layman’s terms, everyone can see what is going on here: picking and choosing to suit your own ends, and the consequences for people be damned.
The Bill is contrary to the rule of law because it amounts to a legislative usurpation of the judicial function. It is an assault on our constitution. It is not standing up for liberty and freedom; it is denying those by removing those basic rights, and the Government are doing that in their own legal assessment. I raised this point earlier with a Conservative Member. Again, I am not legally qualified, but I think that the assessment reads like something out of “Alice in Wonderland”. It states:
“Article 13 ECHR is engaged but will not be infringed”.
That sounds a bit like “present but not involved” as a way of thinking about legislation. It seems to be saying that because we can say that Rwanda is safe and will always be safe, no concerns can ever be raised about safety. That is a tautology. It does not make any sense, not least given the evidence that there are safety concerns about Rwanda, and the possibility that things might change in future even if we do not accept the evidence of extrajudicial killings, deaths in custody, enforced disappearance, torture, and the persecution of those in the LGBTQ+ community. The assessment then begins to sound a bit more like the mad March hare:
“The Government considers that a Declaration of Incompatibility is sufficient to provide an Article 13 effective remedy for challenges to decisions under the presumption of safety in clause 2 to treat Rwanda as safe”.
To those of us who are not legally qualified, that seems to be saying that something is incompatible to make it compatible. Basically, it is saying that someone can bring a court case—so the Bill is a lawyers’ charter. The Government keep telling us that they do not like lawyers, but they seem to want to encourage them to make a lot of money out of badly drawn pieces of legislation that will encourage court cases. That is exactly what the Government’s own legal ruling does.
This House can and should do better. Amendment 9 is about resolving these challenges, and showing that we have thought about them. If nothing else, it would give succour to the Court that we had—as we did with prisoner voting—considered the matter, which is often what the Court is asking us to do: not to leave people’s rights locked away and inaccessible, but to look at how they are being used. Churchill said at The Hague:
“We welcome any country where the people own the Government, and not the Government the people.”
I think that is a very noble proposition. I am sorry that Conservative Members are increasingly advocating our removal from the European Court of Human Rights because they cannot live up to those terrible ideals of a protection of the right to family life or a protection of privacy or, goodness knows, a protection of freedom of thought.