My Lords, I thank all noble Lords who have taken part in this predominantly technical debate on the view of the UK’s legal position if it were to ignore an interim measure from the European Court of Human Rights. The final intervention
from the noble Lord, Lord Anderson of Ipswich, and the Minister’s answer leave me just as confused as when we started the debate. It reminds me why, after I graduated 40 years ago, when I was offered the chance of becoming an NHS manager or going to law school, I chose to become an NHS manager. That was hard enough.
Clearly, noble and noble and learned Lords have raised several issues, but because of the lateness of the hour, I will not repeat them all. There is the issue of judicial review, which is quite bizarre. If a Minister’s sole decision on such an important issue cannot be judicially reviewed, particularly if the position is completely irrational, I think most noble Lords would agree that it would be easy for international law to be broken and for the individual to have no recourse even to our own domestic courts. As many noble Lords have said, the perverseness of Clause 5 as it stands is that it is preposterous that even our own domestic courts are ruled out from making any interim judgments. The Minister has not been able to give any convincing answer as to why that is.
A number of noble and noble and learned Lords asked this question in different ways, which the Minister, in answering, still ignored: if an interim decision is of such a serious nature, why would a Minister of the Crown wish to ignore it? It is hard to conceive why a Minister would wish to do that, particularly if there is no judicial review. It makes the individual completely reliant on a rational Minister making a decision devoid of the policy of the Government, which is absolutely central to stop the boats. It gets the Minister in a political and legal position that is highly suspect both for the individual on the receiving end of the decision and for the Minister having to make it. I am absolutely convinced of that, based on the views that have been raised.
Of all those views raised, the explanation of the noble Lord, Lord Anderson of Ipswich, about the judgment and Articles 32 and 34 is one that I felt was definitive, as, I think, did many other noble Lords. However, the Government refused to accept that and continue to insist that Clause 5 is not in breach of international law and is not in any way a dilution of the separation of powers. I believe that this issue will come back on Report, and quite rightly so. Depending on what the Government say, I am sure that it will be a bone of contention for the House. Having said that, I beg leave to withdraw my amendment.