Safety of Rwanda (Asylum and Immigration) Bill

Baroness Bennett of Manor Castle Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord McDonald of Salford (CB)]

My Lords, I support the case put by the noble Lord, Lord Cashman, and ask about a current torture case concerning a journalist called Dieudonné Niyonsenga. Last month he appeared in a court in Kigali on appeal; he was sentenced three years ago to seven years in prison. He appeared in court with a wound in his head and he claimed, in that hearing, that he had been tortured. His case has been taken up by the Committee to Protect Journalists. This is not something theoretical or in the past; it is happening right now.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the expert contribution of the noble Lord, Lord McDonald. I offer Green support for all the amendments in this group. I particularly highlight and commend the noble Baroness, Lady Lister, and her allies for highlighting something that is crucial, but I feel that has been covered powerfully, so I will simply address most of the other amendments in this group.

It is worth stressing that the amendments would remove the legal fiction that Rwanda must be treated conclusively as safe by the courts and other decision-makers. They would allow the consideration of evidence. I am speaking in the midst of many eminent lawyers, so I will focus on the politics of this. We live in a world in which we are often told we are living with post-truth politics. At the weekend, I was in the constituency of Kingswood knocking on doors. I met some people there who were living in a post-truth environment—people who had disappeared down some very dark conspiracy rabbit holes. When you are knocking on doors, of course it is impossible to attempt to extract people from those rabbit holes in the couple of minutes you have, but it is truly terrifying—I have to say that most of them will be voting for the Reform party on Thursday, which is something the Government should have great concern about for all kinds of reasons.

Post-truth politics is one thing, but what we confront with the Rwanda Bill is post-truth law. The noble Lord, Lord Clarke, said—I wrote down his words—that he was

“completely flabbergasted by the constitutional implications”.

What are the constitutional implications of post-truth law? Nothing is weighed on the reality of the world.

I want to pick up the point made by the noble Lord, Lord Deben, about the duties of this House. Surely it is the duty of this House to ensure that we have truth- based law.

[Lord Hoffmann (CB)]

My Lords, my noble friend Lord Clarke asked whether there was any precedent for the kind of legislation we are considering, in which some question of fact is declared to be the case to the exclusion of any contrary decision by a court. There are such precedents, but you have to go a long way back in our history to find them.

In 1531, there was an unfortunate incident at a dinner party given by the Bishop of Rochester. All the people who ate their dinner became sick, and one of them died. This was not, at the time, put down to the inadequacy of the health and safety laws in the 16th century, but suspicion fell upon the cook. The King had a horror of poisoning. He was more or less a contemporary of Lucrezia Borgia and recognised that it was being used as a political weapon all over the country. He came down to Parliament, to your Lordships’ House, and promoted a Bill that became an Act. It declared, first, that poisoning was a form of treason; secondly, that the penalty for it was to be boiled alive; and, thirdly—this is the point—that the cook had been guilty of this crime and no trial was to take place. They were probably concerned that some lefty lawyers might get the cook off if it went to trial. The result was that the cook was duly boiled alive before an appreciative audience at Smithfield. That is the sort of precedent which one has to look at in order to justify what is being done now.

Since then, for centuries, we have had the development of the principles of the rule of law and the separation of powers—principles which English constitutional lawyers have written about with pride and foreign lawyers have written about with admiration. I suggest to your Lordships that that is where we ought to stay.

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[Lord Stewart of Dirleton (Con)]

The only thing relevant to an individual case would be matters specific to the individual.

In line with our obligations, I assure noble Lords—in particular the noble Lords, Lord Scriven and Lord German —that individuals will still be able to challenge removal decisions on the basis of compelling evidence that Rwanda is unsafe for them due to their particular individual circumstances. The threshold for such claims is a high one, rightly. People must not be allowed to frustrate and delay removal with the kind of legal challenges we have been seeing for some time, which the Bill is intended to prevent. I have spoken at length—

[Baroness Bennett of Manor Castle (GP)]

Surely we come back to the point about temporality, which a number of noble Lords have raised. Surely the circumstances of an individual, and the nature of the Rwanda they are being transported to on the day their flight lands, are relevant to the individual case.

[Lord Stewart of Dirleton (Con)]

My Lords, that would depend entirely on the case presented by the individual.

I thank the noble Baroness, Lady Lister of Burtersett, for tabling Amendment 30 with regard to victims of torture. With reference to the points of the noble Lord, Lord Coaker, in winding up, while we will reflect on the matters she raises, at this stage I cannot support their inclusion in the Bill.

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[Lord Carlile of Berriew (CB)]

My Lords, I took it that the noble Baroness was asking me a question from the way she started—no, do not ask again. First, I absolutely yield pre-eminence to her in anything related to war stories. On her substantive point, she is right. I was the Independent Reviewer of Terrorism Legislation at the time when holding people without charge in prisons on suspicion of terrorism was declared unlawful. In 2005, the law was changed. It was changed only because of the intervention of the courts following rational and detailed argument. The country did not become a more dangerous place. It became a more lawful place, with better argument about the results. There were huge benefits from that change, but it was made only because there was a fairly complex but easily dealt with legal process.

[Baroness Bennett of Manor Castle (GP)]

I rise with great humbleness to intervene at this point. I was planning to refer to the noble Baroness, Lady Chakrabarti. I know that she has a book coming out shortly, Human Rights: The Case for the Defence. After listening to the noble Baroness, Lady Kennedy, I feel that possibly one of the two noble Baronesses should write a book “Courts and the Law: The Case for the Defence” because it seems to have been clearly identified that that is something we need. The point I want to make about the title of the noble Baroness’s book—she has kindly given me a copy, and I have not had time to read it yet, but I will —is how tragic it is that we feel as if we have to make a case for the defence of human rights. That is the place we are in now. That explains why I chose to attach my name to the notice of our intention to oppose the Clause 3 standing part of the Bill, as did the noble Lord, Lord German, the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Lister.

I think it is worth going back to the title of this clause:

“Disapplication of the Human Rights Act 1998”.


I fully understand that other amendments in this group are trying to make this less bad, but, following what the noble Viscount, Lord Hailsham, said, I feel that crying out in opposition to any disapplication of human rights is where I have to be. It is the only place that I feel that I can be. This picks up points made by the right reverend Prelate the Bishop of Chelmsford that human rights have to be universal. I was looking at one of the main United Nations websites, which defines human rights as

“rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status”.

If we take human rights away from some people, it does not affect just those people; it makes all of us far poorer and far more vulnerable.

[Lord Deben (Con)]

My Lords, I remember as a young boy walking with my father in a town. We passed a building which had “Constitutional Club” written on it. I said to him, “What does that mean?”, and he said, “It is the Conservative club. It is called a constitutional club because the Conservative Party believes that the constitution is very important to maintain the stability of the nation”. I rise to support my noble friend in his comments about this Bill in general and the particular clause which we are discussing now.

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If my understanding is correct, this will be an Act of Parliament with retrospective effect. This country does not legislate retrospectively, unless there is a good reason to do so. My experience as a law officer was that, if the Government were minded to propose a Bill that had retrospective effect, they would take the advice of the law officers to determine whether it was okay to do that. I ask the Minister not to confirm whether he has sought the advice of the law officers but to explain to this Committee why the Government are asking Parliament to legislate retrospectively, as it looks as though they are doing.

[Baroness Bennett of Manor Castle (GP)]

My Lords, aware of the hour, I rise very briefly, having attached my name to Amendment 81 in the name of the noble Baroness, Lady Chakrabarti, and the noble Viscount, Lord Hailsham. I am now very clear that the noble Viscount’s Amendment 82 is an ingenious way of addressing the issue of temporality, which we have been circling around again and again. However, I shall simply address Amendment 81.

As I think the noble Baroness, Lady Chakrabarti, said, today we have been introduced to a phrase, “the court of Parliament”, that many of us, certainly myself, were not familiar with. Amendment 81 goes to the sovereignty of Parliament and ensures that Parliament remains sovereign in decision-making. Like other Members of the Committee on this side of the House, I will avoid venturing too far into the internal pains of the Conservative Party, but I think that a section of the party that has recently arrived in your Lordships’ House is very concerned with sovereignty, and it has never been terribly clear whether we are talking about parliamentary sovereignty or Executive sovereignty. Another phrase for Executive sovereignty, of course, might be “the exercise of arbitrary power”. The amendment overcomes that problem, makes it very clear and ensures what kind of country we want to live in.

There is another point I want to raise briefly, because what the noble Lord, Lord Purvis, said on the financial issues was very interesting. I must admit that I have not ventured into those issues because, quite frankly, I have been concerned with stopping the whole thing happening, so the financial aspect, the money, has already been thrown away and that is where we are. However, the point the noble Lord made about commercial confidentiality being allowed to cloud any sort of transparency about what is happening is an issue of concern. Those in other sections of your Lordships’ House will know that I and the Green Party have very strong views about the use of services provided for private profit for what should be care; after all, what we are supposed to be talking about is caring for refugees. Will the Minister say, without going into too much commercial detail, what percentage of profit the Government have allowed for in that contract? If that is said to be still too commercially confidential, what would the Government consider a reasonable level of profit for someone to make from the housing of these refugees in Rwanda?

[Lord Wolfson of Tredegar (Con)]

My Lords, I also note the Clock and I will make points on the two headings. The first is on Amendment 81 in the name of the noble Baroness, Lady Chakrabarti. The basis for it, according to the Member’s explanatory statement, is that

“This amendment replaces … (an executive act), with a parliamentary trigger”.


The proposal is that instead of having an executive fiat, Parliament and parliamentary sovereignty would be put in its place. Unfortunately, the amendment does not do that. What it does is to take the pen away from the Minister and hand it to the Joint Committee on Human Rights. The reason is that the way this amendment is drafted is that two requirements need to be met. First, the Joint Committee on Human Rights has to report its belief that Rwanda is safe; in other words, if it comes to the conclusion that Rwanda is not safe, or might not be safe, then proposed new subsection (1A)(a) is not satisfied, and it falls there. The second requirement is that

“a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”.

If, for example, both the other place and this House were to take the view that the Joint Committee on Human Rights had got it totally wrong and, in fact, contrary to its view that Rwanda was not safe, it plainly was safe, Parliament could do nothing about it. I am sure that is not what was intended, but it is a fundamental problem in the drafting and in the scheme if what is intended is to hand power to Parliament.

Just to make it clear, if that amendment were made to this amendment, I would still oppose it. The responsibility should lie with the Secretary of State. Let us be very clear about what this amendment would actually do. It would take the pen away from somebody who is elected and responsible to the electorate and hand it to the Joint Committee on Human Rights. I have the greatest respect for the JCHR—I appeared before it when I was a Minister—but it is wrong in principle that it and it alone should have the right to stop this legislation in its tracks. That is the first point I wanted to make.

The second point I want to make arises out of Amendments 35 and 90 and the point made by the noble and learned Lord, Lord Falconer of Thoroton, earlier that this is retrospective legislation. As we are in Committee—although many of the speeches seem to be Second Reading speeches—let me pick up one drafting point on Amendment 35. As I understand it, it would prevent a decision-maker making a decision relating to the removal to the Republic of Rwanda of somebody who arrived in the UK before the Act received Royal Assent. The words

“a decision relating to the removal”

are very broad. Would they include, for example, a decision about how old somebody is? That is a decision that will be needed under the current legislation and under this legislation. I would have thought that it cannot be intended that Amendment 35 would stop decisions which have, so to speak, that dual purpose. That is a drafting point.

The more fundamental point is whether this is retrospective legislation at all. I listened very carefully, as I always do, to the noble and learned Lord, Lord Falconer of Thoroton. With respect, I fundamentally disagree with him that this is retrospective legislation. What is retrospective legislation? The House of Commons Library puts it in these terms—this is from a paper it published in June 2013, but these are fundamental principles that do not change over time—citing Craies on Legislation, ninth edition. It says that retrospective legislation is generally defined as legislation which

“takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past”.

The two classic examples are, first, that conduct which is lawful when you do it is not later made unlawful; and, secondly, that the penalty for unlawful conduct when you do it is not rendered greater retrospectively. It is right to say that we have legislated retrospectively in the criminal context—rarely, but we have. The War Crimes Act 1991 and the International Criminal Court Act 2001 are examples of that. However, none of this is retrospective legislation. The example the noble and learned Lord gave is that somebody might have an argument which they could put in court that, for example, “I’ve got a brother here, I’ve got somebody here”. That is not a vested right.