My Lords, I am extremely grateful to the Committee for an exceptionally lively, informed and learned debate on this matter. The consideration of obligations to obtemper interim measures—interim indications from the European Court of Human Rights—seemed to gravitate around two poles. On one hand we had the noble Baroness, Lady Chakrabarti, the noble Lords, Lord Kerr of Kinlochard and Lord Hannay of Chiswick, the noble and learned Lord, Lord Etherton, and others. On the other hand, my noble friend Lord Howard of Lympne spoke powerfully, my noble friend Lord Jackson of Peterborough added his weight, and we heard supportive contributions from my noble friend Lord Wolfson of Tredegar and the noble and learned Lord, Lord Hoffmann, who spoke from the Cross Benches offering, if I may say so, a qualified view as to the obligation to obtemper any such interim measures.
The scheme of the Bill is to enact Clause 5 to put beyond doubt that the decision about whether to comply with an interim measure, in proceedings relating to the intended removal of a person to the Republic of Rwanda under, or purportedly under, a provision of or made under the Immigration Act, is in the hands of a Minister of the Crown. The requirement for a Minister of the Crown is to exercise the decision personally, which reflects the seriousness of the decision to be taken.
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The status of domestic law, as opposed to international law, was a matter of some consideration by your Lordships’ Committee. The orthodox legal position is that unincorporated international law—that is, law not incorporated into domestic legislation—is not binding on the domestic courts. Clause 5(3) goes further by preventing the domestic courts from having regard to interim measures. Domestic courts can have regard to interim measures without being bound by them, in the sense that they are not legally required to follow them.
As the noble Lord, Lord Faulks, said from the Cross Benches, the constitutional and legal position in the United Kingdom, so far as international law is concerned, is quite clear and has been reaffirmed repeatedly by the highest court in the United Kingdom. The United Kingdom is a dualist state, which means that international law has effect in it only in so far as it is expressly incorporated into domestic law by or under an Act of Parliament. Once incorporated, it is just as capable of being modified as any other domestic law, and in the same way.
Nothing that I say or have said at any stage in submissions to your Lordships’ Committee should be taken as suggesting that His Majesty’s Government do not recognise the importance of international law or its relevance to governmental decision-making. We treat international law with the utmost seriousness and pay close attention to our obligations. But, in the case of this provision, the Minister will be accountable to Parliament for the exercise of that personal discretion, and each decision will be dependent upon the individual facts of each case. Nothing in Clause 5 requires the United Kingdom to breach its international obligations.
Amendments 57 and 59, tabled by the noble Lord, Lord German, and Amendment 58, tabled by the noble Baroness, Lady Chakrabarti, seek to remove the statement that only a Minister of the Crown can decide whether to comply with a Rule 39 interim measure. I note first that it is important to make clear that Rule 39 interim measures are not final judgments of the European Court of Human Rights and are not binding on the United Kingdom domestic courts. I reassure your Lordships that, when the Minister is deciding whether to comply with an interim measure indicated by the Strasbourg court, due consideration will be given to the facts in the individual case and careful consideration will be made of the United Kingdom’s international obligations. Given the importance of this decision, it is crucial that we are clear in the Bill that this decision rests with a Minister of the Crown.
Amendment 59, tabled by the noble Lord, Lord German, would permit a domestic court or tribunal to have regard to an interim measure when considering an application or appeal from a person subject to removal to Rwanda. Where there is an equivalent domestic remedy, as we have provided for in Clause 4, there should be no need for the Strasbourg court to intervene. In answer to the question raised by the noble and learned Baroness, Lady Butler-Sloss, it is the policy of the Bill that this should be the case and that these matters should be for the Minister.
The decision of the United Kingdom’s domestic courts to issue interim relief should be made only when they have reached their own conclusions about whether a person is at risk of serious and irreversible harm, not when the European Court of Human Rights has indicated an interim measure. These provisions are consistent with the measures introduced in the Illegal Migration Act, agreed by the House last year.
There is nothing in Clause 5 to prevent Ministers consulting Cabinet colleagues or seeking advice when appropriate so to do. It would be expected for a Minister so to do. However, this is a decision for Ministers, so I do not believe that Amendment 62, tabled by the
noble Lord, Lord Coaker, which seeks to introduce a requirement to consult the Attorney-General, is necessary. Furthermore, specifying in the Bill that the Attorney-General must be consulted before a decision is made would undermine the law officers’ convention, to which reference was made earlier in Committee. This is a long-standing convention whereby advice received from the law officers is not disclosed outside government. It is also the convention not to disclose whether or not the opinion of the law officers has been sought.