Lord Faulks (Non-Afl)

My Lords, there cannot be any doubt that the system which has been working—if that is the right word—for some considerable time is very unsatisfactory. I think that is probably recognised by the Government and was certainly recognised by the previous Government. The noble Lord, Lord Davies, summarised the complex system that currently prevails, whereby applications are made and there are appeals and the like. I should perhaps add that, until relatively recently, it was possible to judicially review the decision of the Upper Tribunal. The Supreme Court, in a case called Cart, had decided that, so there was yet another avenue available to those who wished to use the full possibilities inherent in the system. Parliament decided that that Supreme Court decision ought to be reversed. I declare an interest as having been chair of the Independent Review of Administrative Law. We recommended that and it was, in fact, supported by a number of judges who had sat on the decision itself. It became law, so these things are not sacrosanct. As far as judicial review generally is concerned, I simply ask the Minister this. The ouster clause, as they tend to be described, in Amendment 68 is not a complete ouster but it is a substantial one. There was an indication in remarks that the Minister made earlier that any sort of ouster might be considered to violate the rule of law. Although there have been various obiter dicta of judges—I think in particular of the well-known case of Privacy International—suggesting that the courts could ultimately refuse to recognise an ouster clause, the Independent Review of Administrative Law took the view that Parliament was ultimately sovereign. It may or may not be a good idea to oust the courts, and that is a matter that Parliament will have to consider on the specific facts. I would very much like to know what the Government’s general view on that is. What I want to address at this moment is the amendment in the name of the noble Lords, Lord Murray, Lord Jackson and Lord Lilley, in relation to the Human Rights Act. This Bill, entitled “Border Security”, was the Government’s first response to the various attempts by previous Governments to cope with illegal migration. The opposition to the various Bills that went through this House was firm, but I was never quite clear what the policy was on the part of the Labour Party. Ultimately, it came down to the idea that the Government would crack down on the smuggler gangs. The word “crackdown” came often into the debates, and the future Prime Minister, Sir Keir Starmer, was held out as being just the man to crack down because of his experience as the Director of Public Prosecutions. Now, I yield to no one in my admiration for his discharge of that role, but I was always somewhat confused by the idea that someone who was in charge of macro decision-making as the Director of Public Prosecutions was in some way fitted to crack down on smuggler gangs. The crackdown was apparently to start straight away when the Government came into power some 15 months ago, but I think it is fair to say that it has not been a success. We can see the figures, and I do not wish to weary the House with what those figures are. The Bill, which in some ways is uncontroversial, gives a little extra power to allow that crackdown to take place, but what we really have here is a complete vacuum of policy on the part of the Government. We know they did not like the Rwanda scheme, but what is to replace it? The position of those who opposed the previous Government was that we could not do anything to in any way amend the ECHR or the Human Rights Act, both of which obviously play a significant part in the whole process of gaining asylum, and anyone who suggested as much was considered almost to be in the headbanger category. Things have moved on a bit, and a number of senior Labour figures are saying that we really need to think again about the ECHR. Indeed, I think 17 nations, members of the Council of Europe, are considering trying to do something about the ECHR in view of the fact that so many European countries do not find it to be working satisfactorily. When the Attorney-General, the noble and learned Lord, Lord Hermer, gave evidence before a committee, he said that that might take as much as 10 years, but this is an emergency, and I am sure the Government will acknowledge that. As for the amendment of the Human Rights Act, when I asked the Minister in Committee, he confirmed that there was no way in which there would be any amendment of the Human Rights Act—I have on me what he said in Hansard—nor would there be any deviation from the ECHR. That begs the question as to what is going to happen. What is going to fill the policy vacuum? The previous Home Secretary, Yvette Cooper, made some noises to the effect that the situation was far from satisfactory and something needed to be done, and her successor, Shabana Mahmood, has said that nothing is off the table. We know that nothing is off the table but we are entirely unclear as to what is on it, and it really is time that we knew. I can remind the noble Lord that he said in Committee, on 13 October: “I hope to assure the noble Lord, Lord Faulks, that we will legislate to reform our approach to the application of Article 8 in the immigration system so that fewer cases are treated as exceptional. We will set out how and when someone can make a claim. We are also reviewing the application of Article 3”.—[Official Report, 13/10/25; col. 132.] How is that going to happen? Apparently there is going to be no amendment of the HRA and any changes to the ECHR are in the far distant future, yet he said to the Committee that there was going to be legislation. The only form of legislation that seems to be at all possible is some form of legislation that says that these decisions are not satisfactory and so the approach has got to be changed—in other words, guidance to judges. I am concerned about that, as it would be interference with judicial independence. The Government ought to have the courage, if they think the law is wrong, to change it. The Human Rights Act is a domestic statute and can be amended. I come with help, I hope. The amendment in the names of the noble Lords, Lord Murray, Lord Jackson and Lord Lilley, provides for the suspension of the Human Rights Act in the face of this emergency. It is a domestic statute, and the powers of the Government enable them to do that if necessary. It may be that that will at least help. I do not pretend that changes to the Human Rights Act are the complete answer to the almost intractable problem that we face, but it is a very real suggestion. It is contained in the amendment and I suggest that the Government should take it seriously.