My Lords, I oppose Amendments 36, 37, and 38 in respect of Rule 39 interim measures. I am afraid that I will not observe or respect the admonition that we should brief necessarily. We are discussing the substantial and significant issue of parliamentary sovereignty, and the
right of the British people to have their views respected and not blocked by an unelected House, especially when the elected House, the other place, has been able to make a decision in significant numbers.
In deference to the sensitivities of the noble Lord, Lord Hannay, I will, for the avoidance of doubt, be referring to “an international” rather than “a foreign” court. I am sure he will be pleased about that. These are fundamentally blocking or wrecking amendments, designed to make the Bill inoperable. They are designed to thwart the will of the people, expressed through an electoral mandate and the will of the other place, to reduce immigration and to fulfil the primary duty of government, which is to protect its borders and its people and, more importantly—I look to the Lords spiritual in this respect—the moral imperative to save lives in the channel and destroy the business model of evil people traffickers.
More specifically, these amendments subvert and traduce the long-held principle that our laws are made in Parliament and implemented by the courts—simply, the concept of parliamentary sovereignty—in favour of a nebulous, opaque concept of “the rule of law” and the ECHR as a living document. The former is essentially uncodified and lacks precise consensual meaning, but it is used to advance judicial activism by unelected, unaccountable jurists in an international court, undermining faith and trust in the court system, parliamentary democracy and government in this country and destroying the delicate equilibrium between the Executive, the legislature and the judiciary. There is but one rule of law, and that is made in Parliament by elected representatives. That confers legitimacy on our proceedings. These amendments will assist in furthering the trend towards the politicisation of the judiciary.
Even the concept of the separation of powers, much lauded in this House, is itself alien to the constitutional settlement of the UK, and is certainly an evolving issue. It is unclear and prey to subjective interpretation, as we established earlier this week on Report when we discussed the deeming presumption of a safe list for asylum seekers, including Greece, in the case of Nasseri v Secretary of State in 2009. This was ultimately found by the Appeal Court and the House of Lords, under Section III of the ECHR and the Human Rights Act in respect of inhuman treatment, not to have violated those pieces of legislation. That was the Blair Government, who created an unrebuttable presumption that a list of countries was safe, so there is a precedent already set many years ago.
I wish to ponder briefly the idea of the rule of law, Rule 39 interim measures and the implications for parliamentary sovereignty and the myth of the ECHR, which is eulogised with rapture by so many noble Lords in the context of our own Parliament and judicial system. Advancing the rule of law as superior to parliamentary sovereignty—“the rule of lawyers”, as my noble friend Lord Lilley said in his excellent opinion editorial in the Daily Telegraph two days ago—is what we are looking at. It is about the subjective fiat of another court, over which we have no control. It is a modern phenomenon, as opposed to parliamentary sovereignty, and an example of judicial mission creep. That said, even Lord Bingham stated, after the case of Jackson v Attorney-General on the Hunting Act 2004:
“The bedrock of the British constitution is … the supremacy of the Crown in Parliament”.
He echoed the thoughts of such eminent jurists as Lord Denning and AV Dicey, to whom I referred in Committee.
As we know, and as my noble friend Lord Lilley alluded to earlier, the French have taken an altogether more robust view of the authority and sanctity of their own domestic legislation vis-à-vis the perverse and sometimes dangerous and damaging rulings of the ECHR. In November 2023, Interior Minister Gérald Darmanin removed an Uzbek national, MA, who was allegedly a radicalised Islamist extremist, despite a Rule 39 interim measure against this being done, the first time that the French Government have openly defied such an interim measure. Indeed, they also defied the Conseil d’État, the equivalent of the Supreme Court.
The French elite is more likely to question and challenge the état de droit, the French equivalent of the rule of law. In an article in Le Figaro—