My Lords, the noble Viscount, Lord Hailsham, mentioned the Constitution Committee, and Amendment 10 in my name also seeks to reinforce the position of that committee’s reports to this House. It comes to something when an amendment has to try to define the purpose of this House, but the amendment states that
“the primary responsibility of Parliament and the courts is to uphold the constitution of the United Kingdom, including that constitution’s fundamental commitment to the rule of law”.
The bit we are talking about here is the separation of the two legs of the stool, as mentioned by the noble Earl, Lord Kinnoull—Parliament and the courts.
It is the role of Parliament to enact legislation, and it is the role of the courts to apply legislation to the facts. Clause 1(2)(b) breaches that separation of powers between Parliament and the courts. Further to that, Parliament is overriding the role of the courts by replacing a factual assessment of the courts with a deemed factual assessment by Parliament. The courts have procedures to evaluate evidence and determine the facts. In asylum cases they assess safety and risk daily. Parliament exists to legislate rather than make these assessments based on the valuation of evidence. Although the sovereignty of the UK Parliament is an established principle of the UK constitution, there are huge consequences when legislation is enacted which significantly impacts that separation of powers. The Bill is a dangerous precedent in which legislation could be used to reverse factual conclusions, jeopardising the rule of law as well as the separation of powers.
We may think that this legislation is for other people in our society—for people not like us—but the precedent this sets can be taken and applied more widely to achieve a political aim. We need to be alive to how marginalised people in our society are treated, and this is a marker of the values and priorities of our Government, who make decisions that affect us all.
It is clear from the debates in Committee that Members are not comfortable with what the Government are trying to do with this legislation: to replace the findings of fact of the highest court in the land with their own assessment of fact based on evidence yet to exist, in practice. We would mock other countries for trying to do that; that is why this amendment is so important, to lay down what Parliament and the courts are for.
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