My Lords, it is indeed a privilege to follow the most reverend Primate. I am sure that the whole House will wish to congratulate him on the most distinguished part he played in the Coronation proceedings on Saturday.
Notwithstanding the eloquence of those who have previously spoken in opposition to the Bill, I cannot agree with them. I support the Bill. It is the first duty of a Government to protect the borders of their state, and the Bill represents the best available means of achieving that objective.
I shall make three points. First, I want to deal with the allegation that the provisions in the Bill, particularly those relating to interim rulings of the European Court of Human Rights, in some way breach the rule of law; secondly, I want to comment on the provision of safe routes for asylum seekers; and thirdly, I want to consider the extent to which the Bill’s measures are likely to succeed.
The provisions of Clause 53 have attracted a good deal of controversy. It has been suggested that they constitute a breach of our duty under the European convention and therefore a breach of the rule of law. In order to assess the validity of those arguments, it is necessary to examine the legitimacy of the power of the European Court of Human Rights to make interim rulings—which is what Clause 53 is all about.
The European court derives its authority from the convention. Article 46 of the convention expressly states that only final judgments of the court are binding. Rule 39 of the court’s rules of procedure, which provides the basis for its ability to make interim rulings, states only that it may indicate the measures that it thinks should be taken in any case. It is true that the court, in a case in 2005, seemed to conclude that it could make a binding interim ruling, but that was clearly inconsistent with the convention and with rule 39 itself.
Against that background, let us consider the ruling that the court made last year in relation to the Government’s plan to remove illegal immigrants to Rwanda. It was an ex parte ruling so the UK Government had no opportunity to state their case, it was issued by an anonymous judge in a press release, and it was indefinite in the sense that no provision was made for a hearing to take place at which the UK Government could state their case. It was contrary to all the rules of natural justice. I ask your Lordships to consider the fate, on appeal, of any first-instance judgment in our courts made in that way. It would not survive five minutes.
The response to that lamentable state of affairs set out in Clause 53 is commendably moderate. It gives a Minister of the Crown discretion, and in subsection (5) it sets out some of the matters to be taken into account in exercising that discretion. Those matters represent all the elements of natural justice that were lacking in the interim decision made by the court last year, so I commend Clause 53 to your Lordships.
Next, I would like to say a word about safe routes. There are of course legitimate arguments to be made about safe routes, but they are—I am afraid—irrelevant to the need for measures to deal with the boats. Let me explain why. Unless everyone—and I mean everyone—who applies for leave to enter the UK through a safe route is granted that right, there will be some who are refused. Some of those who are refused will be able to acquire the means to pay the people smugglers, and the people smugglers will continue to put them on boats to cross the channel. Whatever the arguments in favour of safe and legal routes, they are—I repeat—irrelevant to the main provisions of the Bill.
Finally, I want to say something about the likely efficacy of the measures set out in the Bill. There can, in my view, be little doubt that the most effective way of dealing with the problems posed by the illegal immigrants crossing the channel is to reach a return agreement with France. We reached such an agreement in 1995 when I was Home Secretary. Both countries agreed to take back anyone who had entered one country from the other and who was refused admission. Although those refused admission to the UK far outnumbered those who applied for and were refused admission to France, France honoured and complied with the agreement—which, as a matter of fact, has
never been rescinded or revoked. I accept that France is not now prepared to implement this or any similar agreement, so the Government have to take whatever action is available to them. It seems to me that this Bill represents the best option available. I believe that it will have a deterrent effect and diminish the ability of the people smugglers to continue to ply their evil trade, and I commend it to the House.
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