My Lords, this may be the graveyard shift, but I will do my best to keep the Committee awake for a little longer. I give huge thanks to all members of the Committee for being here for whatever reason—under pain of whipping, out of love for human rights or whatever it is. I thank you for being here.
The whole Bill is a clash between politics—I would say rather tawdry, populist politics, but politics none the less —and human rights. But this group—Amendments 116 to 119 and the issue of whether Clauses 52 and 53 should stand part of the Bill—is not even about human rights. It is about something that precedes both human rights and democracy itself: the rule of law. In our country, the rule of law came before we had even democracy. I would argue that no civilised society, let alone a democracy, can be sustained anywhere in the world without the rule of law.
Clauses 52 and 53 are, in effect, about ousting the jurisdiction of domestic and international courts to grant interim relief—interim injunctions in our domestic courts and interim measures in the European Court of Human Rights. They deal with some of the concerns that have been raised in previous groups about what you do when you have not actually considered the person’s substantive claim yet. They say, “You send me to Rwanda, Uganda et cetera. I will not be safe there. Bad things might happen to me there and/or I might be sent on to the country from which I originally came, where I feel I would be killed or tortured”. This is about interim relief: whether the courts should be allowed to grant it and whether our Government should respect that. All other parties to litigation have to respect the decisions of courts in relation to interim relief when there is an arguable case and a real risk.
If noble members of the Committee will forgive me, I will take the clauses backwards to make my point better. I will start with Clause 53, work backwards to Clause 52 and come to the amendments last.
Clause 53 deals with the European Court of Human Rights, and I am delighted to see the Foreign Office Minister in the Chamber to hear this. I am very
grateful for that, because this is a matter of foreign policy and our relationships with the Council of Europe and the wider world, as well as a domestic legal matter.
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Noble Members of the Committee will remember Rule 39 of the European Court of Human Rights jurisdiction, which was, interestingly, raised earlier; to that we shall return. The court says about its own jurisdiction:
“The European Court of Human Rights may, under Rule 39 of its Rules of Court, indicate interim measures to any State party to the European Convention on Human Rights. Interim measures are urgent measures which, according to the Court’s well-established practice, apply only where there is an imminent risk of irreparable harm. Such measures are decided in connection with proceedings before the Court without prejudging any subsequent decisions on the admissibility or merits of the case in question”.
This applies in the meantime, before the court has had time to consider the substantive case. Of course, because the substantive case has not been decided, it will only grant interim relief if it has to. Otherwise, the case would become totally hypothetical because the person who says they are going to be extradited or deported—these are usually expulsion cases—back to wherever will be killed, and there is no point in having the substantive case. That is what these interim measures are all about.
I say to noble Members of the Committee that it is pretty rich that a few moments ago—or was it hours or days ago in this Committee? Who knows? It is that kind of a place—Ministers opposite were praying in aid the very high threshold the Court of Human Rights uses before it will grant this interim relief. That is what the Minister was saying in relation to his tests for these non-suspensive claims when the noble Baroness, Lady Ludford, and the noble and learned Lord, Lord Etherton, were concerned that the test was too high. The noble Lord was saying “No, no. It is fine. It is the test used by the European Court of Human Rights”. The incoherence and contradictions, not just in this legislation but in the arguments put in support of it, are really quite something.
We were told a short while ago—if anyone is awake enough to remember—that that is the appropriate test and there should be a real risk of serious or irreparable harm before somebody should be able to have a non-suspensive claim. This means the ability to have a claim considered here rather than when they are in Rwanda on a Zoom call or whatever is being proposed.
However, in Clause 53 of the Bill, Ministers will be given permission in domestic law to ignore interim relief indication measures given by the European Court of Human Rights. Why? It is because we do not really care about the European Court of Human Rights, which we were told was so important five minutes ago. Is the test too low? The test was good enough five minutes ago. This is the kind of game that is being played with this Committee. This is the kind of swindle that is being perpetrated by this Government on the British public and on this Committee, I would suggest.
We know politically what this is about. This power of Ministers in His Majesty’s Government—this Government and future Governments of different stripes—to ignore interim relief from the European
Court of Human Rights is because of the Rwanda case. It is because interim measures were indicated in that case and that stopped the plane. Senior Ministers were having dreams not even about the plane taking off but about a photograph on the front page of the Daily Telegraph of the plane taking off. That is what this is about.
Because of that rather tawdry anti-rule-of-law politics, we are now going to give Ministers in His Majesty’s Government the power to ignore interim measures indicated by the European Court of Human Rights and the Council of Europe—Churchill’s legacy and all that. I have said it before so I will not bore the Committee with all that, but it is really important history. We talk a lot about our proud history; the truth is that it is a chequered history, but that post-war moment is a very proud part of that chequered history. It is a particularly proud moment, if I may say so, for the Conservative Party, because it is Churchill’s legacy.
It is because of the Rwanda case that noble Lords opposite, and the Government, say that they need the power to ignore interim measures indicated by the European Court of Human Rights, even in expulsion cases. This is notwithstanding the fact that there are currently interim measures in place against Russia, saying that servants of the Russian state and the Russian military should not execute prisoners of war in that conflict. Once more, that very dangerous conflict started on this continent, like last time and the time before, with all the threats to our world, let alone to the rule of law.
Perhaps noble Members of the Committee will say, “So what? The European court has made these measures in relation to Russia, which is out of the Council of Europe anyway”. I say that it does matter, because there will be some people, even in the Russian Federation, who know that this war will not last forever. When the war is over, there may have to be a reckoning, including in the International Criminal Court. Anybody who perpetrated an execution of a prisoner of war in this conflict needs to be on notice that there is a relationship between interim measures from the European Court of Human Rights and what may one day be an indictment in the International Criminal Court. This stuff really matters.
To be fair to noble Lords opposite, during various Questions in recent weeks and months some compelling points have been made about process—about how it ought to be possible, when an applicant makes an application for interim relief because they say that they will be shot or refouled or whatever it is in the other jurisdiction, for His Majesty’s Government, or the Government of any other member state, to challenge that afterwards. If there was an ex parte application that was made and granted urgently, for example, it ought to be possible for that to be revisited—there ought to be refinement of the Rule 39 process. That is fine. I have heard friends of mine on the Benches opposite make that point, and I agree with them. That is the duty of the noble Lord the Foreign Office Minister and indeed the Prime Minister.
If the United Kingdom was so influential in the creation of the Council of Europe and the jurisdiction of the European Court of Human Rights, it can be
influential in its reform, to everyone’s benefit. I have no problem with that, but that kind of diplomacy—the kind that we saw in the Prime Minister’s excellent speech in Reykjavik—will be undermined by clauses such as this in legislation such as this. I urge the Government to consider that, negotiate any changes that need to be made to the process of Rule 39, and do not give Ministers of whatever stripe in His Majesty’s Government the power to ignore interim relief from the European Court of Human Rights.
I turn now to Clause 52, which is not about an international court of human rights; it is about our courts—British courts. Because we have taken back control, we obviously care about British courts, do we not? Ironically, there are more contradictions here in the politics and law of this draft legislation. British courts are being ousted with even greater vigour than the European Court of Human Rights, because in Clause 53 only Ministers are given a power to ignore interim relief from the Strasbourg court. However, domestic courts cannot grant the relief at all. Take back control? Whose control? That is why this is a rule of law question, because our constitution is not about executive domination; it is about a careful balance and relationships, not only between the Executive and Parliament but between the courts and Parliament. To oust the jurisdiction of His Majesty’s judges to grant interim relief in expulsion cases is a total disgrace.
What about the contradiction that I pointed out? There is some respect to the Strasbourg court—although much diluted—but no respect at all to our domestic courts. Some of us who are human rights lawyers and public lawyers occasionally get irritated—because lawyers are like that—when commercial lawyers suddenly become born-again human rights lawyers when they come to the House of Lords, Parliament or wherever else. However, to be fair and to make a point against myself, there is some cross-fertilisation. Commercial practice and human rights practice are very different practices, and they are certainly differently remunerated; however, there is some cross-fertilisation in relation to things such as court procedure.
Our test for interim relief in English common law is much lower than the Strasbourg one. It comes from a very famous commercial case from the 1970s called American Cyanamid, which addressed when you should grant interim relief. There were two parties suing each other, and they wanted an interim injunction, because they said that damages would not be enough. So if the court does not stop whatever this thing is—a breach of contract or a tort—and if it does not grant an interim injunction, the case will become practically hypothetical, because the damage will be done, and it will be irreparable.
The test, in a nutshell, is that there should be underlying cause of action. That is not a problem in a case when someone says, “I will be refouled” or “I will be tortured”; there is an underlying cause of action there. However, there is a serious question to be tried if it concerns someone’s persecution or life, where damages will not be adequate. In these most grave human rights cases, damages will not be adequate if the first country a person is sent to is one in which they will be very badly treated. That is the test, and these are the courts that will be ousted, in total, with no exception under Clause 52.
I do not believe that any Government of this country should engage in that kind of ouster of jurisdiction. Instead, we should respect due process and our courts. By doing that, you make interference by the European Court of Human Rights and Strasbourg much less necessary. They will not need to intervene, because they will know that there are domestic courts well capable and respected all over the world.
Finally, these clauses should not stand part, but the amendments are an alternative. It is a poor alternative, but it is one none the less, in the spirit of Committee. Amendments 116, 117, 118 and 119 say, “If the Government are really going to do this in a particular case because they have very good reason, as they think they do in the Rwanda case, they should trust their politics, believe in democracy and take that proposition to the House of Commons and have a vote”. We know that they do not trust the courts, even on the gravest human rights issues that are so important to the rule of law—but do they trust Parliament and the House of Commons? They cannot have executive fiat. We cannot have Ministers behaving in this way today or tomorrow, in this Government or any Government of any stripe. As a poor alternative to taking these two odious clauses out of this odious Bill, if noble Lords and Ministers say that they will oust the jurisdiction of the international courts, the European Court of Human Rights or our domestic courts in an individual case, they should at the very least take that argument to the House of Commons and have a vote. I beg to move.
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