Safety of Rwanda (Asylum and Immigration) Bill
Wednesday 14th February 2024
(2 months, 1 week ago)
Lords ChamberSafety of Rwanda (Asylum and Immigration) Act 2024 View all Safety of Rwanda (Asylum and Immigration) Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 41-II Second marshalled list for Committee - (12 Feb 2024)
The Senior Deputy Speaker (Lord Gardiner of Kimble)
My Lords, the noble Baroness, Lady Brinton, will be taking part remotely. I remind the Committee that unless they are leading a group remote speakers speak first after the mover of the lead amendment in the group and may therefore speak to other amendments in the group ahead of Members who tabled them.
Clause 2: Safety of the Republic of Rwanda
Amendment 18
Lord Scriven
Lord Scriven (LD)
My Lords, as we enter day two and the world of fantasy and fiction on the Bill, which is based on the premise of an untruth, I am the fiction of my noble friend Lord German—his substitute. I am a poor substitute; all the same, he unfortunately cannot be in his place today.
Amendments 18, 23 and 47 in this group, which are in my noble friend’s name and to which I have added mine, seek to ensure that Rwanda is not to be conclusively treated as a safe country where there are persons to be removed who are an unaccompanied child, a victim of human trafficking or a victim of modern slavery. Amendment 47 builds on this by ensuring that decision-makers must specifically consider circumstances where
“an individual … is … an unaccompanied child … a victim of human trafficking, or … a victim of modern slavery”
when they consider individual cases.
It is important that the courts can do this because anyone who clicks on the signatories to UN treaties, to see which countries have signed up to them, will see that there are significant and optional treaties at the UN, based not just on the rights that are required but the type of inquiry carried out on those individuals, which Rwanda has not signed up to. This is therefore significant for some of the most vulnerable people, who should be afforded extra protection because of the lack of protection that Rwanda provides them.
The amendments in this group in the name of the noble and learned Baroness, Lady Butler-Sloss, also seek to protect victims of modern slavery and of human trafficking. They are drafted in a more comprehensive manner. In a later group, we will focus more specifically on children.
At Second Reading, a number of noble Lords highlighted that the vulnerable are not at all protected in the Bill. Indeed, the Bill places at risk the UK’s obligations under the European Convention on Action against Trafficking in Human Beings, to which Rwanda is not a signatory, given that victims of modern slavery and trafficking are among those who face forced removal to Rwanda. The obligations include the duty to investigate without delay and to take operational measures to protect potential victims, where there are sufficient indicators available of circumstances which give rise to credible suspicion—I emphasise “suspicion”—of a real risk of trafficking and exploitation.
Further, according to the US Department of State’s 2023 Trafficking in Persons Report, Rwanda does not
“fully meet the … minimum standards … for the elimination of trafficking”.
The 2023 Global Slavery Index tells us that the prevalence of modern slavery in Rwanda is more than twice as high as it is in the UK. The previous Independent Anti-Slavery Commissioner raised concerns that Rwanda has detained thousands of potential trafficking victims without conducting adequate screening or referring identified victims to proper care and assistance; that in 2021 Rwanda investigated fewer trafficking cases and prosecuted and convicted fewer traffickers compared with the previous year; and that it
“lacked a victim-witness support program”.
We are deeply concerned that survivors will not be seen as safe in Rwanda, as they would be here in the UK. The aim of our amendment is therefore simple. It is to try to offer a degree of protection to those who are most vulnerable by ensuring that Rwanda is not seen to be conclusively safe for unaccompanied children, victims of trafficking and victims of modern slavery.
I also note that Amendment 75, which my noble friend Lady Smith has signed, tries to ensure that if those brave men and women who have helped our Armed Forces in conflict in areas such as Afghanistan who, because of the incompetence of Home Office schemes, decide to flee here because their lives are in danger, they are not forcibly sent to Rwanda. What a shame on our national reputation that we would do such a thing as a nation.
As I say, the aim is very simple. It is to make sure that these people—unaccompanied children, victims of trafficking and victims of modern slavery—are not sent to Rwanda, because it is not seen as conclusively protective. I know that my noble friends Lady Brinton and Lady Hamwee will speak in more detail about these categories of vulnerable people, who surely deserve our protection. I beg to move.
Baroness Brinton (LD) [V]
My Lords, it is a pleasure to follow the noble Lord, Lord Scriven, who introduced the amendments in this group. I have signed Amendments 18, 23 and 47, but, like him, I have considerable sympathy with the others. The amendments discussed on Monday focused much on the rule of law and how the Bill sits within that. This group changes the focus to look at the most vulnerable asylum seekers, defined in our Amendments 18, 23 and 47 as unaccompanied children, victims of human trafficking or victims of modern slavery, and says that, for the purposes of this Bill, Rwanda should not be regarded as a safe country.
Noble Lords who worked on the Illegal Migration Act last year will remember that, during that Bill, these were three groups of asylum seeker where there was considerable cross-party concern about the Bill reducing their rights under domestic law and ignoring them under international law. There are amendments to follow that will go into more detail on these cases. I will not speak in detail ahead of the noble and learned Baroness, Lady Butler-Sloss, but Amendments 23 and 47 would set on the face of the Bill, in Clause 2, that these groups of people should always be considered separately and not just with everybody else or as a generic group.
The first group is unaccompanied child asylum seekers. We have had many debates in the last three of four years, in the Nationality and Borders Act and Illegal Migration Act, about difficulties in assessing the age of unaccompanied children. We will come back to that detail next week. It is important to note that, on 22 January, the Guardian reported that at least 1,300 child refugees are at risk after being classified as adults, with some placed in adult jails after the Home Office wrongly assessed their ages. Others were sent to adult hotels without the right support. The Refugee Council, Helen Bamber Foundation and Humans for Rights Network report, Forced Adulthood, says that these children are exposed to “significant” harm. It reported that age assessments can be as short as 10 minutes. The consequences for these young people, if they are children, are serious. They breach international law, as well as the UN Convention on the Rights of the Child, to which this country is a signatory.
For victims of modern slavery and human trafficking —I will not go into the detail of the excellent introduction by my noble friend Lord Scriven—I share my noble friend’s concerns. I note that this Government appear to have a short memory. In the Modern Slavery Act 2015, promoted by the then Home Secretary Theresa May, an Independent Anti-Slavery Commissioner was created to improve and better co-ordinate the response to modern slavery. It introduced a defence for victims of slavery and trafficking, placed a duty on the Secretary of State to produce stat guidance on victim identification and victims’ services, and enabled the Secretary of State to make regulations relating to the identification of and support for victims. That is why the simplistic processing proposed in this Bill is completely inappropriate and why the Government need to respond to these amendments, as well as those proposed by the noble and learned Baroness, Lady Butler-Sloss, in this group. We have a duty as a nation to take care of the most vulnerable asylum seekers.
I also support Amendment 75 in the name of the noble Lord, Lord Browne of Ladyton, which my noble friend Lady Smith of Newnham has supported. It is unconscionable for us not to recognise the very particular circumstances of those who have supported our troops in the most difficult circumstances.
This Government used to believe in supporting asylum seekers, particularly the most vulnerable, and had processes by which they could do so, but they clearly do not anymore. Can the Minister explain to your Lordships’ Committee why this U-turn has happened and on what basis it is appropriate to disregard the rules they created less than 10 years ago?
Baroness Butler-Sloss (CB)
My Lords, I will speak to Amendments 70, 73 and 85. I support the other amendments in this group. I declare an interest as co-chair of the parliamentary group on modern slavery and vice-chair of the Human Trafficking Foundation. The purpose of my amendments is to draw attention to the Modern Slavery Act 2015 and the plight of victims of modern slavery trafficked to the United Kingdom, to ensure greater transparency and to put in place appropriate structures of due diligence and accountability.
Lord Horam (Con)
My Lords, I am sorry that the noble Lord, Lord German, could not move the amendment in his name. I can tell that House that he is a marvellous chairman of the Parliament Choir and has an unrivalled ability to speak the poetry of Dylan Thomas with all the Welsh fervour that it demands.
I understand the good intentions of those who are putting forward the amendments in this group, but I fear they suffer from a real difficulty. In particular, in Amendment 23 the new subsection (1A)(c) would exempt a person who is
“a victim of human trafficking”.
The problem with that is that it drives a coach and horses through the Government’s intentions, which are, of course, to draw the category for exceptions extremely narrowly, so that most people do go to Rwanda, and therefore it is a definite deterrent to people leaving France and trying to get to this country as illegal immigrants. That is the whole point of the legislation, and it needs that sharpness and narrowness of exclusivity to achieve that aim. I fear that, in the hands of any sensible immigration lawyer, simply saying that the person might be a victim of human trafficking opens the whole thing to abuse.
I make that point because I have just been reading in the newspaper this morning that the Home Office is about to buy, or has bought, 16,000 homes in this country to house those illegal asylum seekers who are at the moment in hotels. It wishes to transfer those people, because of the public cost, to residential houses or flats, and that is what it is proposing to do. This housing they are taking is social housing and private rental housing, particularly in areas such as Bradford, Hull and Teesside, which are low-rent areas and obviously comparatively deprived areas. I think this shows the domestic consequences of allowing in the present number of illegal migrants and why the Government have to bear those in mind as well as our undoubted sympathy for those who may be suffering from human trafficking, slavery and so forth. These factors clearly have to be balanced; the domestic responsibilities of the Government with the concern for illegal immigration of this kind. I hope the House will bear that in mind when it considers these amendments.
Lord Purvis of Tweed (LD)
Before the noble Lord sits down, can he answer a question? Under Home Office figures, 78% of those people who have been referred to the national referral mechanism for being trafficked or in modern slavery have been successful and, by definition, a woman who is trafficked here—not smuggled but trafficked—will be unaware of the final destination. It will be against her will. How will she be deterred by this Bill?
Lord Horam (Con)
She will be deterred because the Bill is designed to send people to Rwanda, with a very narrow area of exemptions for those who cannot be sent to Rwanda. That is the way it will operate. Obviously, it will need to be spelled out, and the Government will have to put behind it all the explanations they can through modern social media et cetera to get across the message to the people who are at present in France that there is a real possibility that they will end up not in the UK but in Rwanda. That is how it works. That is how it is supposed to work, and I submit that widening it to all these other possibilities will detract from that deterrent element and therefore destroy the purpose of the Bill, with the domestic consequences that we can see.
Lord Deben (Con)
My Lords, it is extremely difficult to debate anything in the Bill if the only answer of those who are happy with it is, “It is all very difficult, and therefore we have just got to do it as we are saying, because we really cannot deal with any of the details”. I have to say to my noble friend that the fact that we are talking about people who come to this country not illegally but involuntarily means that we are not talking about people who are going to be deterred by anything. They do not want to come here, so the question is how we deal with those.
I must say I am a bit tired of having to remind this Government of what it means to be a Conservative. I had to do it earlier, on the single market, and I am now doing it on this. We have a reputation in the world because of our Modern Slavery Act. It was a brave and important thing to do. It was welcomed across the whole House. I am proud that it was a Conservative Government who did it. I am not proud that there is a Conservative Government undermining that, when we know that more than three-quarters of those who appeal in these circumstances are found to be right in their appeal.
We also know that appeal is very difficult. We know how many people who are trafficked do not get into the system because of the nature of trafficking. Those of us who sit in our comfortable places might just think, on Ash Wednesday, that this is a moment to reach out to those who are uncomfortable and not able to speak up for themselves. There are few people who are in a worse position than those, so on what possible moral basis do you threaten to send them to a country which has not signed up to the international agreement on modern slavery, has twice as many modern slaves as we do—and we admit that we have many whom we have not traced—and has a history of ignoring this problem? How on earth can we defend that on a moral basis, leave alone a practical one? What the blazes is the use of claiming that there is a deterrent effect when the person you are talking about is not in a position to be deterred because they have been taken up by someone who has made those decisions for them?
I believe we cannot allow the Bill to go through without some serious consideration of this point and make sure that we do not allow our country to be let down in this way.
Lord Browne of Ladyton (Lab)
My Lords, I rise to speak to Amendment 75 in this group, which is in my name and supported by the noble and gallant Lord, Lord Stirrup, and the noble Baronesses, Lady Coussins and Lady Smith of Newnham. The noble Baronesses have asked me to tender their apologies as they are unable to attend today’s Committee. I confidently expect that they may get an opportunity in later stages of the Bill to explain to your Lordships’ House their reasons for supporting this amendment.
Before I turn to Amendment 75, I wish to make clear my support for the other amendments in this group, those in the name of the noble Lord, Lord German, and the noble and learned Baroness, Lady Butler-Sloss. I commend them both for tabling these amendments and for the powerful clarity with which they were moved. I am strongly in favour of excluding unaccompanied children, victims of modern slavery and the victims of human trafficking—in fact, I am in favour of excluding those who have no option about where they are from deportation to Rwanda.
These debates are fundamental, even leaving aside the morality of offshoring—or, perhaps more accurately, offloading—a question which has received sufficient attention in your Lordships’ House to require no further explication from me. These decisions on exemption speak to the values we project around the world. Given the political capital that has been invested in the Rwanda scheme, its realisation, were that to occur, will attract a correspondingly large amount of international scrutiny. It is difficult to imagine the global derision and horror that would result from pictures of children and victims of slavery and trafficking being bundled on to flights for forcible removal from the UK, a place in which these vulnerable people have sought sanctuary, to any other country, never mind to one which is not, as we hear, in a condition to look after them and to protect them from the vulnerabilities that caused them to seek sanctuary here in the first place.
I turn to Amendment 75. As the explanatory statement makes clear, the new clause proposed would exempt people who are a very special case—those who have put themselves in harm’s way in support of His Majesty’s Armed Forces, or through working with or for the UK Government overseas—from removal to Rwanda, as well as exempting their partners and dependent family from such removal. Again, I ask your Lordships’ House to consider what message would be sent by the spectacle of someone who has faced peril in service of the UK receiving the reward of forcible removal from the very country for which they risked their life?
Last Monday, 5 February, in the debate on a UQ on the relocation of Afghan special forces, I welcomed—and I repeat that welcome today—the Government’s undertaking to review all the ARAP applications from members of the Afghan special forces, known as the Triples, that have already been deemed ineligible. Some of these very brave men and their families and dependants are hiding in Afghanistan, and others are in Pakistan fearing deportation, and awaiting whether the new Government in Pakistan have the same policy as the previous Government to deport them back to Afghanistan, where they would be in danger of their lives.
Lord Stirrup (CB)
My Lords, I support Amendment 75, to which I have added my name. In order not to try the patience of the Committee, I will not repeat all the excellent arguments made by the noble Lord, Lord Browne of Ladyton, with which I entirely agree, save to say that if global Britain is to be effective in the world, it will need to form partnerships with and gain support from people in all sorts of different parts of the world, often very difficult and dangerous parts of the world.
In order to garner such support, it will need to be seen as trustworthy. How trustworthy does anybody think we will be seen as if we have taken those who have already served us so faithfully in such difficult circumstances and sent them to Rwanda? So, for those who are not swayed by a sense of moral obligation, I ask them to consider the future effectiveness and safety of the men and women of our Armed Forces who are sent out to do such difficult and dangerous things in these parts of the world.
The noble Lord, Lord Horam, has said that the Government seek to draw very narrowly the definition of the people who are excluded from the provisions of this Bill. Surely, at the very least, those who have put their safety and indeed their very lives on the line in support of this country deserve to fall into that category.
Baroness Hamwee (LD)
My Lords, no one could disagree with a word of that. I of course support the amendment from the noble Lord, Lord Browne. It makes me ashamed every time I see stories such as those that he has related. I support the amendments in the name of my noble friend—whatever persona he speaks in—and have added my name to the noble and learned Baroness’s amendment, which is of course about victims of trafficking and modern slavery.
As my noble friend Lady Brinton said, we will come next week to the position of children, which will include the question of age assessment. I hope that somebody in that debate will draw attention to the Government’s references to the young men who are really men, not children, when they come across the channel. I am sure that other noble Lords saw on our television screens the amazing darts player Luke Littler. He looked considerably more than a child—he looked about 35, in fact. The noble Lord, Lord Horam, said that the amendments from the noble and learned Baroness, Lady Butler-Sloss, drive a coach and horses through the Bill. That is an interesting choice of words; they were the words that Theresa May used about the impact of the recent migration, immigration and asylum Bills.
The noble Lord also criticised the word “might”—that people “might” be in this position. Well, that is because we have a process, which is referred to in the amendment: the national referral mechanism. That is our mechanism for assessing claims of having been trafficked or being a victim of modern slavery and so on. It has its problems, particularly in delays, but it is a careful method of assessment that is not replicated in Rwanda. It involves the support of victims of modern slavery and trafficking, which is not available in Rwanda.
I am no less worried than I was when the Rwanda proposal surfaced. Far from tackling these evils, we are expanding the market and opening it up in that country to further trafficking and re-trafficking. It is a country where modern slavery, as has been said, is a good deal more prevalent than it is in the UK. And it is not just a matter of prevalence, it is a matter of culture—something to which the Supreme Court referred. The culture in Rwanda is not to assess whether people are vulnerable in this area. It shows no demonstration of understanding what modern slavery is or how to assess possible victims. If that sounds technical, it is technical in a way, but it is also about what happens to individuals at a human level. We have heard some very powerful speeches supporting that position.
Lord Alton of Liverpool (CB)
My Lords, it is a pleasure to follow the noble Baroness, Lady Hamwee. I support Amendment 75, which was moved so powerfully by the noble Lord, Lord Browne of Ladyton, and supported by my noble and gallant friend Lord Stirrup.
While they were speaking, I was struck by one paragraph in the report of the Joint Committee on Human Rights which I referred to briefly in our proceedings on Monday: paragraph 119 on page 33. We referred to Afghanistan, and it was in this context:
“We have observed, however, that other nations may be influenced by the way in which the UK treats its international law obligations. For example, we note that the Prime Minister of Pakistan has already referred to the UK’s Rwanda policy in defence of his country’s decision to expel from Pakistan hundreds of thousands of Afghans who have fled from the Taliban regime”.
In reflecting on that, the committee said at paragraph 120:
“The UK has a reputation for respect for human rights and the rule of law, of which we should be proud. Legislation that seeks to disapply or fails to respect international law risks damaging that reputation and encouraging other states who are less respectful of the international legal order”.
Baroness Chakrabarti (Lab)
My Lords, it is always a privilege to follow the noble Lord, Lord Alton, with his decades of human rights advocacy, often at personal risk from some of the rather terrifying regimes around the world that he has criticised. It has also been a privilege to sit in this Committee and listen to the contributions, to remind the Committee, from a former Chief of the Defence Staff, a leading jurist, a former chair of the Conservative Party, and, of course, my noble friend, a former Defence Secretary.
I say to the noble Lord, Lord Horam, with whom it is always a pleasure to engage, on his coach and horses concern that, on one level, he is quite right. The testimony and stories we have heard in relation to all these exemption amendments—I support them all—do indeed highlight the overall illogicality and cruelty of the Bill. There is no doubt about that, but I do not want to rehearse that.
We established last time that Rwanda is not yet safe for any asylum seeker or refugee. We have already argued, and will argue in subsequent groups, that discretion should not be totally squeezed from the Secretary of State’s hands, that the judiciary should not be ousted, that safety should only be a rebuttable presumption and so on. Their testimony bears witness to all the structural problems of the Bill that need to be tackled.
However, I put it to the noble Lord, Lord Horam, in the light of what we have heard about, for example, children, people who have been enslaved and trafficked against their will or those who have put themselves in harm’s way at the service of the British state, that even if Rwanda becomes safe and one agrees with the noble Lord—I do not, but I am on this journey—that it is acceptable to transport human beings for asylum processing, these groups should never be so transported for the reasons that have so compellingly been given.
Some of them, the children and the trafficked people, had little or no say in their arrival in the UK in the first place. Certainly, deterrence can never speak to them and their situation. Then there is the group that my noble friend Lord Browne so ably addressed; we should not dream of deterring them. We made a promise to them and they have paid for it, many of them in courage and blood. How dare we! I am actually rather ashamed that my noble friend had to table an amendment of that kind at all. The people to whom we made that promise will be spared, only because, when he questioned Ministers on 5 February for a relatively lengthy period, they were not able to explain the position once the Secretary of State’s hands are tied and he is under a statutory duty to send people to Rwanda because they came by an irregular route.
So I say to the noble Lord, Lord Horam, whatever our disagreements about the policy as a whole, the Bill in general and all the amendments that I hope will make it a little better, that he must take a different position over the exemptions in this group.
Lord Kerr of Kinlochard (CB)
It has indeed been a remarkable debate, as the noble Baroness says. Her own contribution maintained the high standard that has been set; I shall now lower it. I have two small points to make.
First, I strongly support Amendment 75, so ably addressed by the noble Lord, Lord Browne of Ladyton. It extends the exemption not just to the Armed Forces but to any agent, ally or employee of the Crown abroad. That brings in the British Council and the British high commissions and embassies. The noble Lord, Lord Hannay, has frequently drawn attention to the endangered staff of the British Council in Afghanistan. I strongly support this amendment.
It is also relevant to note, in the context of Amendment 75, that Rwanda has never granted asylum to any Afghan, whereas our acceptance rate of asylum claims from those arriving by small boats is 99%. That proves that people who have turned up here from Afghanistan asking for asylum have a very real reason to have fled. Our processes have checked that their cases are valid; they are fleeing a risk of persecution. Rwanda’s track record suggests that their reception might not be as unbiased there as it here, even if the changes introduced by the treaty come into effect in Rwanda. So I strongly support Amendment 75 and I hope we all do.
The Lord Bishop of Bristol
My Lords, I am grateful to all those supporting Amendment 75 and for the speeches on it. I am further grateful to the noble Lords, Lord Kerr and Lord Alton, and the noble Baroness, Lady Chakrabarti—they are all helping us to delve deeper into the legal and moral issues in these amendments. I am particularly grateful to the noble and learned Baroness, Lady Butler-Sloss, who has set out her Amendments 70, 73 and 85, to which I have subscribed my name.
This issue is close to my heart, as I speak on behalf of the Church of England on human trafficking and modern slavery issues. I do so from the city of Bristol, with its history of slavery and its current commitment to prevent human trafficking and slavery, including domestically—we train our lay officers to spot the signs of those hiding in plain sight—and to provide refuge for those on their journey through the NRM. I was also particularly grateful to the noble Lord, Lord Deben: I think that I will miss church downstairs, so I am grateful that he has brought church upstairs in his Ash Wednesday words to us about the deep moral issues in our debate today.
I am concerned by the response from the noble Lord, Lord Horam, about drawing the terms of the Bill very tightly. It seems to me that the terms include those who are already victims of crime through human trafficking. This is the nub of my argument: surely it is right to prevent and minimise further risks to people who have already been victims of a crime, as we are obliged to do under national and international law; hence Amendment 70, which would mean that nobody who is thought to be a victim of modern slavery could, as we have heard, be removed to Rwanda, at least before a conclusive decision is made on their case or without assessing what it means for their safety. Such consideration for victims is the least that we can do.
Since the start of 2022, more than 4,000 people who arrived on small boats have entered the national referral mechanism for modern slavery. Under the current proposals, they are both suspected victims of crime and eligible for removal to Rwanda. They may well have been trafficked here against their will, as we have heard, and they are now facing further jeopardy. We need to ensure that this jeopardy is removed, as far as we possibly can. The UK has had until now a world-leading referral system for victims of modern slavery. It is something of which we can be rightly proud. I am concerned, as are others, that the Bill, compounding other recent legislation, puts that world-leading status at risk. Not only are survivors of modern slavery victims of a terrible and traumatic crime but they will now be removed to another country altogether, re-transported to a country which will not, in all probability, treat them well—because the legislation and the treaty do not address concerns that we have heard about today or the concerns of the Global Slavery Index; namely, that the Rwanda Government’s approach to this issue will put those transported there at risk.
Amendments 70, 73 and 85 ensure greater transparency as this legislation is implemented. The amendments mean that we would have a better understanding of the picture of modern slavery as the Bill and treaty are put into effect. As currently drafted, the Bill will have a potentially devastating impact on survivors of modern slavery and our nation’s ability to tackle this crime. Ensuring that the implications of the Bill for victims of modern slavery are subject to ongoing monitoring is the least that we can do. The UK has a strong national referral mechanism but without proper monitoring and transparency worked into the Bill we risk entrenching vulnerabilities and pushing victims back into their original abusers’ hands.
Modern slavery and human trafficking are terrible crimes which represent a traumatic experience. If we are committed to tackling them, monitoring the implications of the Bill for the victims will be fundamental to an ongoing response.
Lord Randall of Uxbridge (Con)
My Lords, I apologise to the Committee for not being present at Second Reading. I am afraid that my health has not been great, and I was a bit worried about my blood pressure—which might have been accentuated by listening to the debate. I declare an interest as the chair of the Human Trafficking Foundation.
I have added my name to Amendment 70, tabled by the noble and learned Baroness, Lady Butler-Sloss. I do not need to say much because the speeches have been wonderful, except to make a plea to my noble friend the Minister regarding Amendment 75. I have always been proud of this country. However, many have put their lives at risk, and many have suffered the ultimate sacrifice. If we reject looking after them, if we do not allow them this, I am afraid that I will not be so proud of this country or of the party that I am in.
I make a further plea to the Minister and my noble friends. I understand entirely the concern regarding migration. It is happening all over the world—illegal crossings, the small boats and so forth. I understand that but let us not just be so dogmatic that we have not an inch of humanity.
I said that I was the chairman of the Human Trafficking Foundation, which I am delighted to be. I started off in the other place, listening to my old colleague Anthony Steen, who was passionate about this; listening to him, I realised what the victims go through. Subsequently, I have been lucky, or unlucky, enough to meet many of these victims. It is not a hypothetical thing. Yes, there are some abuses, but how many of those are really abuses? We must not think —I speak particularly to our own Benches—that everybody who claims that they are a victim of modern slavery or human trafficking is trying to get an easy ticket into this country. It is heartbreaking to see those people and listen to their stories.
I tried this with my noble friend who previously held the position; I pestered him about trying to meet some victims. He was lucky enough to return to the Back Benches before I could implement that request. But I say to my noble friend the Minister, and we have heard it from the noble Lord, Lord Alton, that he has a great deal of humanity. We cannot not make exceptions. As the noble and gallant Lord, Lord Stirrup, said with regard to people who have served the Crown, there is another thing with regards to victims of modern slavery, which the noble and learned Baroness, Lady Butler-Sloss, touched on—that is, prosecutions. If we deport somebody to Rwanda while we are trying to have criminal cases, unless my noble friend assures me otherwise, we are not going to get the evidence to put those modern slavers away. I urge my colleagues, my noble friends, not to be so dogmatic about this. There must be some exceptions. We must show humanity if we can call ourselves British.
Lord Hannay of Chiswick (CB)
My Lords, I will speak briefly about Amendment 75, which the noble Lord, Lord Browne of Ladyton, introduced so movingly. My noble and gallant friend Lord Stirrup added some extremely powerful arguments. I have been raising this issue about those who either fought for us or served us in Afghanistan.
If we were to combine Amendment 75 with a fast-track treatment of the reconsideration which the noble Earl, Lord Minto, told the House a short time ago was now being undertaken for one category of these people—I am seeking confirmation from the noble Lord, Lord Ahmad, that those who serve the British Council are also included—there would be absolutely no incentive for people in that category to try to cross the channel in boats. Could the Government get on with those two bits of a solution to one part of this problem —one in which, frankly, our honour is at stake?
I want secondly to raise those parts of these amendments — we will come to other ones later in the grouping—that relate to children. The noble Baroness, Lady Brinton, pointed out that we would be acting in contravention of our obligations under the UN Convention on the Rights of the Child—I sat beside Lady Thatcher when she signed it. We need to take that seriously. Is it not the case that the committee set up by the United Nations to watch over the implementation by all member states of their obligations under the Convention on the Rights of the Child has told us—and we are represented on that committee—that we are acting in contravention of it? Could the Minister perhaps answer that question?
If that is so, I hope that it will inform the response that the Government make to the various amendments, in this group and in other groups, that are designed to meet our obligations under the convention. I hope that we do not go off again into a rather sterile discussion about whether this sovereign Parliament has the right to rip up the obligations it signed itself not all that long ago. I do not think that is the point; the point is about the human beings whose lives are at stake.
Lord Bellingham (Con)
I want to pick up on three quick points before the Minister replies. First, on Amendment 75, I entirely agree with the noble Lord, Lord Hannay, that we had a very powerful speech from the noble Lord, Lord Browne of Ladyton, reinforced by the noble and gallant Lord, Lord Stirrup. I want to ask the Minister this question: if it is not possible to put it in the Bill, is it possible for the Secretary of State to make a firm pledge and commitment? I have had the privilege of doing two stints at the Foreign Office and have seen the extraordinary commitment of staff locally engaged by the British Council. In fact, in many of those countries, staff directly employed by the Foreign Office would be outnumbered, probably by 10 to one, by locally engaged staff, who are incredibly loyal to the Crown and this country, never more so than in Afghanistan, where we had not only a larger cohort of locally engaged staff than in most countries but the defence angle as well, with British-trained Afghan defence force members and special forces whom we trained. I urge the Minister to look at this seriously.
One point that occurred to me is that many illegal refugees who arrive in this country, asylum seekers, tear up their documents. Many of them deny all knowledge of where they have come from, and we have no idea who they are but, presumably, there should be documentary evidence of anyone who served the Crown in Afghanistan, or for that matter in any other country, or who we trained. We would have their names and details, so surely this problem could be solved easily.
I want to pick up on two other points. Like the noble Lord, Lord Alton of Liverpool, I know Rwanda and I imagine a few people have been there—I think the noble Lord, Lord Purvis of Tweed, is going there shortly. The noble Lord, Lord Alton, and I have made common cause on many issues around Africa for a long time. In a region of volatility, Rwanda is a beacon of stability. Would I have chosen Rwanda myself? Not necessarily. There has been a lot of criticism of Rwanda in this Chamber, but since His Excellency Paul Kagame, whom I know very well, took over as president, progress has been made around financial services, tourism and health. Human Rights Watch recently praised Rwanda for the abolition of the death penalty and the use of torture. Transparency International marked Rwanda five out of 47 in terms of corruption indicators. That country has joined the Commonwealth. If you visit Rwanda, you will see the extraordinary progress that it has made. It has signed a treaty that President Kagame has committed himself personally to uphold.
Baroness Wheatcroft (CB)
The noble Lord referred to Human Rights Watch. I assume that he has read its report on 2022, which stated of Rwanda:
“Arbitrary detention and ill-treatment in unofficial detention facilities were common”.
That may not fit with financial services thriving, but it does not point to a safe country.
Lord Bellingham (Con)
I share the noble Baroness’s concerns about Rwanda because there are many areas about which we can be highly critical, but if we listened to some of the criticism of Rwanda as a country not only in this Chamber but in the media and elsewhere, we would conclude that it was incredibly backward and dangerous, which it manifestly is not.
On the point that the noble Lord, Lord Kerr, made about Rwandan refugees specifically, Clause 4(1) states—the Minister can probably cover this:
“Section 2 does not prevent … the Secretary of State or an immigration officer from deciding … whether … Rwanda is a safe country”.
I humbly suggest that if there were a Rwandan asylum seeker here claiming asylum, they would be covered by that part of the Bill. I hope that the Minister will be able to reply to those three points.
Lord Alton of Liverpool (CB)
I would not want the noble Lord to proceed on the basis of believing that the JCHR, for instance, which I have been privileged to serve on, was critical of Rwanda. It is very much my view, too, that there has been progress made in Rwanda. What I was talking about before was the volatility within the region and how that can impact. Things changed dramatically in Rwanda, of course, leading to 800,000 people dying in the genocide there.
I draw the noble Lord’s attention to what the committee said on page 13. Talking about the Supreme Court, it said:
“Significantly, the Court did not hold that this was due to a lack of good faith on the part of Rwanda but rather ‘its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement … and the scale of the changes in procedure, understanding and culture which are required’”.
Does the noble Lord agree?
Lord Bellingham (Con)
I respect enormously what the noble Lord says. I would just push back slightly. The RPF and Kagame have a huge amount of support. They are running a very strong Government and when that Government sign treaties such as this one, I am confident that they will do their best to uphold their terms. I look forward to carrying on and making concords with the noble Lord, and to what the Minister will say in a moment.
Lord Falconer of Thoroton (Lab)
My Lords, the power of this debate has been absolutely extraordinary. I think the House very much admires the noble Lord, Lord Sharpe of Epsom—the Minister—who looks to me like a man alone today. I very much hope that he will be able to produce something.
I support all the amendments. Listening to the debate, I was struck by one exchange which the noble Lord, Lord Purvis, started and the noble Lord, Lord Deben, followed up. I have wondered why the Government had drafted the Bill in the way that they have. By that, I have in mind its extraordinary beginning, which says:
“The purpose of this Act is to … deter unlawful migration”.
The next subsection begins “To advance that purpose—”, and then the Bill sets out the fact that this agreement has been entered into. This is obviously not there for political reasons only. It must be there to send a message to the courts that have to construe it. I am assuming—I very much hope that the Minister will confirm this—that it is in there not for political but for legal purposes. It is to send the message to the courts as to what the purpose and framework of the Bill is.
If that is right, I assume that what the courts are supposed to do is to construe this very unusual Bill in the context of its purpose. The courts are being asked, very unusually, to exclude the courts from determining whether Rwanda is a safe country. They are being asked to do that to deter illegal immigration. The exchange between the noble Lords, Lord Purvis and Lord Deben, underlined completely that there are certain categories of people where deterrence never comes into it—for example, the person who is being trafficked or the modern slave.
Presumably, having put all this material into the Bill, the Government intend that the courts should construe it in accordance with its purpose, giving an appropriately targeted meaning to these exclusions of court intervention. If it is absolutely apparent for an individual that deterrence could not possibly be given effect to by the Bill or its terms, obviously its unusual terms do not apply. Can the Minister confirm that the purpose of all these strange provisions—I have in mind Clause 1—is so that the courts have a very clear steer as to what the purpose is, and that they will construe the Bill in accordance with that purpose?
Lord Purvis of Tweed (LD)
My Lords, Mary is 19; she is in Gezira, in Sudan, just by the Ethiopian border. She has been offered employment as domestic staff in Dubai and her passport is taken away for the journey. The employment agency that recruited her from the refugee camp—because she is displaced, like many hundreds of thousands in Gezira—have also taken a record of her family and where they are from, including her grandparents, who are in Darfur. En route to Dubai, she is told that she will no longer work in domestic staff with a named family; she is now going to be in hospitality, and she is quite excited about this. However, on the way, she is rerouted to Europe because her agency said that the hospitality company and the family are no longer able to accommodate her, so she has an alternative job. She will now be going to Birmingham in the UK. This is an extremely long journey for her; she has no choice, of course, because she does not have any papers or a passport. Now that she is in a situation where she is really concerned about how she is getting to Birmingham and for her own safety, she is reminded that those who arranged the travel—originally to Dubai, remember—know where her family are. When she arrives, it is not hospitality in Birmingham—it is prostitution.
This Bill, and the Illegal Migration Act, will mean that she is detained in the UK, not referred to any support, and will be sent to a different country. The noble Lord, Lord Horam, thinks that the Bill will deter her from believing the company who recruited her to Dubai, and she will be deterred from coming to Birmingham. The nonsensity of it is quite hard to credit. We have the national referral mechanism for a purpose, which is to ensure that Mary does not become a double victim, but that is no longer an option for Mary. She is just an example, but it is not a theoretical one, and if noble Lords do not believe me, they should believe the noble Lord, Lord Randall, and the excellent work he does, and I hope the Minister was listening careful to his contribution.
According to the latest Home Office data on the arrival on small boats, between 1 January 2018 and 30 June 2023 some 9% were in this category; that is 7,923 people who were referred to the NRM. They are not all Marys; there are many other circumstances, but they follow a very similar trajectory of being lied to, trafficked and blackmailed. The Illegal Migration Act adds an extra sinister element to this blackmail, because Mary would be able to stay in the UK only if she is actively part of the prosecution of the gang in Gezira on the Ethiopian border, which is an impossibility.
The legislation put forward by the Government in the Illegal Migration Act will also no longer be able to be open to Mary. I asked the Minister at Second Reading how the Illegal Migration Act will continue to protect the victims of trafficking—an assertion he made—and he said he would write to me; I have not yet received that letter, so I hope he will be very clear today as to how these people will be protected. As the noble Lord, Lord Deben, said in his powerful contribution, according to Home Office information,
“the majority (78%) of reasonable grounds decisions for small boat arrivals since 2018 have been positive. Of the 780 conclusive grounds decisions issued, 78% were positive”.
These are not people who are gaming a system or, as the noble Lord, Lord Horam said, illegal asylum seekers: they are victims of a heinous crime, many of whom had no idea they would end up as part of a prostitution racket in England.
On Monday, I pressed the Advocate-General on the Government’s official position on whether Rwanda currently has the safeguards in place for those who would be relocated. I remind the Committee that I asked:
“If the Rwandan Government are ‘working towards’ putting safeguards in place, that means they are not currently in place. Is that correct?”
The noble and learned Lord, Lord Stewart of Dirleton, replied, “It must do”. So the Government have said that Rwanda is not safe yet and I say to the noble Lord, Lord Bellingham, that this is not us saying that Rwanda is not safe yet—the Minister said that it is
“working towards having the safeguards in place”.—[Official Report, 12/2/24; cols. 64-65.]
Lord Ponsonby of Shulbrede (Lab)
My Lords, in this Bill we are discussing many of the same issues we discussed during the passage of the Illegal Migration Bill. Given the importance of the issues that were raised and the strength of the arguments, it is unfortunate that we are here, not even a year later, asking the Government to ensure protections for vulnerable people, children, those trafficked or sold into slavery and those who have proven themselves friends and allies of our country in Afghanistan in the face of great personal danger. It is disappointing that the Government did not listen on that previous occasion and I hope the Minister has listened to the arguments put forward by noble Lords in Committee today and will respond fully to those concerns.
As the noble Lord, Lord Randall, said, this has essentially been a debate about exceptions. The noble and learned Baroness, Lady Butler-Sloss, introduced her amendments about exceptions for those who may be victims under the Modern Slavery Act and, as she pointed out, there is a process to go through to make those sorts of assessments. She talked about, first, the referral, then the reasonable grounds submission and the final positive grounds submission. As the noble Lord, Lord Purvis, said, the whole purpose of that Act, an Act which the whole of Parliament is proud of, introduced in 2017, is to stop double victims, and that is one category of people who, we argue, through the amendments, should be exempt from the provisions of the Bill.
My noble friend Lord Browne, in his Amendment 75, gave particular focus to this when he gave those open-source examples of three Afghans who arrived irregularly here on UK shores and who face deportation to Rwanda. His amendments seek to make an exception for those cases as well. I have to say that I think my noble friend’s amendment should be very difficult for the Back Benches of the party opposite to resist. I thought the contribution from the noble and gallant Lord, Lord Stirrup, was particularly supportive when he said that the number one objective is to be seen as a trustworthy country.
I thank the noble Lord, Lord Horam, because he was the noble Lord who most clearly articulated the purpose of the Bill as drafted. He said that there needs to be a sharpness and narrowness of definition to achieve the ends and facilitate the removals of people to Rwanda. That was a very clear statement of what is indeed the object of the Bill, but we are talking here about exceptions, about people who may be victims of modern slavery or may have served our country in Afghanistan or elsewhere. The power of the debate is where the moral authority lies. I thought that the noble Lord, Lord Bellingham, made an interesting point. Of course, he is a loyal member of his own party, but he urged the Minister to look for alternative ways to achieve the same ends, and I will listen very carefully to what the Minister has to say to that challenge.
I conclude by saying that this has been an extraordinary debate. It goes to the very heart of what our country stands for. It is about integrity, about moral authority and about the rule of law and how our rule of law is viewed by other countries, which are probably watching our debate as we are having it right now. It is in that spirit that I will listen very carefully to the answer of the Minister.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank all noble Lords who have taken part in this very thoughtful debate. I reassure noble Lords that my noble and learned friend and I have paid very close attention to all the points that have been made.
As we have heard, these amendments relate to the position of potential and confirmed victims of modern slavery, and exempting people from being relocated to Rwanda, including those who have supported His Majesty’s Armed Forces or the UK Government overseas in certain circumstances.
Of course, we greatly value the contribution of those who have supported us and our Armed Forces overseas, and we have accepted our moral obligation. That is why there are legal routes for them to come to the UK. For example, all those who enlist and serve in His Majesty’s Armed Forces are exempt from immigration control until they are discharged from regular service. After that, non-UK HM Armed Forces personnel can apply for settlement under the Immigration Rules on discharge, when their exemption from immigration control ends. There are also provisions for family members of HM Armed Forces personnel to come to the UK legally. Anyone eligible for the Afghan relocations and assistance policy and Afghan citizens resettlement scheme should apply to come to the UK legally under those routes. As regards the specific case of British Council personnel, they are qualified under the third pathway of the ACRS and places are offered to them. To correct the noble Lord, Lord Scriven, these are not Home Office-run programmes, they are run by the MoD and the Foreign Office.
I have no doubt that, with regard to Amendment 75, the noble Lord, Lord Browne of Ladyton, would agree with me that we need to deter people from making dangerous and unnecessary journeys to the UK. A person who arrives in the UK illegally should not be able to make the UK their home and eventually settle here. Regardless of the contribution they have previously made, a person who chooses to come to the UK illegally, particularly if they have a safe and legal route available to them, should be liable for removal to a safe country. Having said that, the noble Lord, Lord Alton, and the noble and gallant Lord, Lord Stirrup, know that service- men are a subject of considerable personal importance to me. If they have any particular instances of personnel struggling to access one of those safe and legal routes, I ask them to raise them with me directly.
Lord Browne of Ladyton (Lab)
I feel I have to point out to the Minister facts which I took for granted, because they had instructed the Government’s apparent U-turn on the ARAP scheme to review those who had been told they were ineligible for it. That implies that the Government accept the overwhelming evidence that these decisions were made in error on our relationship to people who were otherwise members of the Afghan forces and not our forces, and therefore not able to avail themselves of the provisions that the Minister has described—unnecessarily, I think—to the Committee. It is not those people we are talking about.
We have a group of people who were refused because errors were made. They may also have been refused, in some cases, because there was a deliberate, venal reason by other forces to block them from that arrangement. I do not want to debate that issue; I do not know the facts of it, it is subject to an investigation, and we should not trouble ourselves with it. However, that may be the case.
It comes to this: many of these people applied for the status that would allow them a legal way to come. They were refused—in error, deliberately, or maliciously. The review will tell us that. They were then faced with the choice to stay in Afghanistan and face certain death or to get here somehow. They chose to get here somehow; they had no alternative. There was no legal route open to them. That is the dilemma. It is not that they chose not to “hop on” a British Airways flight and come here, showing their status to allow them to do it. It was taken from them wrongly and they were left in this situation. They had the choice of waiting for their death or getting here. These are not people doing something because they want to—they have no alternative.
Lord Sharpe of Epsom (Con)
I take the noble Lord’s point, and I deeply regret any errors that were made in regard to these personnel. I certainly hope that the investigations are rigorous, and if there is any suggestion of any malicious refusal, the full force of the law should be brought to bear. Those errors have been identified, partly because of the noble Lord’s campaigning, and I am assured that they have been corrected now. Therefore, the point stands: there are safe and legal routes to this country for personnel in these positions.
Lord Alton of Liverpool (CB)
I will reinforce the point that the noble Lord, Lord Browne, has made and I am grateful to the Minister for his patience. The individual cases that I have referred to the Minister have failed to qualify under the ARAP scheme, and yet he, through his own interventions and those of other Ministers, has been able to rectify those issues; there will doubtless be similar cases in the future as well. Should we not at least have a review of how the schemes are running—an open and transparent process—and a review of some of the cases that have already been referred to the Minister, and to the MoD and the Foreign Office, so that we can see how many we are talking about and what is going wrong inside the system that those cases were turned down in the first place?
Baroness Hamwee (LD)
My Lords, I am not sure whether I picked up in the Minister’s response that he included the cohort listed in paragraph (b) of the amendment of the noble Lord, Lord Browne; that is, not people who have supported our Armed Forces overseas but
“persons who have been employed by or indirectly contracted to provide services to the United Kingdom Government”.
Lord Sharpe of Epsom (Con)
Regarding the applications to the ARAP scheme, clearly, I am not qualified to comment on individual circumstances as described by the noble Lord. I am afraid I do not know the precise details of who is qualified to apply under the ARAP scheme, so I will find that out and come back to the noble Baroness in due course. I cannot give any further comment at this point.
I have heard what has been said, and I will now turn to Amendments 70, 73 and 85, proposed by the noble and learned Baroness, Lady Butler-Sloss, and Amendments 18, 23, and 47, in the name of the noble Lord, Lord German. The UK has a proactive duty to identify victims of modern slavery, and we remain committed to ensuring that where indicators that someone is a victim of modern slavery are identified by first responders, they continue to be referred into the national referral mechanism for consideration by the competent authorities. Steps will be taken in all cases to identify whether a person may be a victim of modern slavery, and if a person is referred into the national referral mechanism, a reasonable grounds decision will be made.
Amendment 70 would act to impede the provisions already passed in the Nationality and Borders Act and the Illegal Migration Act that introduced the means to disqualify certain individuals from the national referral mechanism on grounds of public order before a conclusive grounds decision is considered. The amendment is also unnecessary—it is important to be clear on this point—as the Government of Rwanda have systems in place to safeguard relocated individuals with a range of vulnerabilities, including those concerning mental health and gender-based violence.
Regarding victims of modern slavery, Article 5(2)(d) of the treaty obliges the UK to provide Rwanda with
“the outcome of any decision in the United Kingdom as to whether the Relocated Individual is a victim of trafficking”,
and this includes positive reasonable grounds decisions, as well as positive conclusive grounds decisions. Article 13 of the treaty makes specific provision that Rwanda will have regard to information provided by the UK
“about a Relocated Individual relating to any special needs that may arise as a result of them being a victim of modern slavery or human trafficking, and shall take all necessary steps to ensure that these needs are accommodated”.
Lord Purvis of Tweed (LD)
This is the point I made at Second Reading. Section 22 of the Illegal Migration Act disapplies all of what the Minister just said when someone arrives by an irregular route. It disapplies the process of someone claiming that they are a victim of trafficking; it disapplies their ability to be referred to the NRM; and it disapplies the Home Office or the receiving officer taking this information. How are they interacting?
Lord Sharpe of Epsom (Con)
My Lords, I will repeat the point: the first responders will be expected to refer individuals into the NRM where there are indicators of modern slavery. One of those indicators is whether they claim to be victims of modern slavery.
Lord Purvis of Tweed (LD)
I am still waiting on the letter. Section 22 of the Illegal Migration Act, on modern slavery, disapplies that. It is not possible for that to happen under the Illegal Migration Act.
Lord Sharpe of Epsom (Con)
I repeat the points that I have made. I will write the letter to the noble Lord. I have the information, but it is incredibly lengthy and I do not want to repeat it all now. I will make sure it is put down in a letter to the noble Lord.
Lord Scriven (LD)
The Minister cannot get away with this. This is a clear issue of an amendment that has been put specifically regarding these people. Section 22(2) disapplies the prohibition of removing that person. Basically, the Illegal Migration Act does exactly what my noble friend says: these people will not be referred. The answer that the Minister has given from the Dispatch Box does not apply to people who have arrived by an illegal route. What route will they have to be assured that any protection that he has just said will be offered to them in Rwanda will in fact be offered there? There will be no data, no evidence and no protection for them.
Lord Sharpe of Epsom (Con)
My Lords, I will go into the detail that I have on what happens when someone arrives illegally and claims to be a victim of modern slavery, both under the Illegal Migration Act and pre-IMA. First responders will be expected to refer individuals into the national referral mechanism where there are indicators of modern slavery, whether IMA or pre-IMA.
Under the IMA, when somebody has arrived in the UK illegally and is therefore subject to the Section 2 duty to make removal arrangements, and has received a positive modern slavery reasonable grounds decision from the competent authorities in the NRM, they will be disqualified from the protections that typically flow from a positive RG decision unless the exceptions in Section 22 of the IMA apply.
Under pre-IMA, when someone has arrived in the UK illegally and they have received a positive modern slavery reasonable grounds decision in the NRM, they are eligible for the protections and support of the recovery period. However, if a public order disqualification, as set out in Section 63 of NABA, is made for an individual, that eligibility for support will not apply and they may be eligible for removal.
The other point is that, as I have said before from the Dispatch Box, the treaty specifically provides that we share information with Rwanda and that extra measures will be provided with regards to the specific vulnerabilities of the types that we are discussing. I hope that goes some way to clarify the picture. I appreciate that it is quite complex to keep up with, and I will write a letter.
Amendments 23 and 47 overlap with later amendments in the name of the noble Lord, Lord Dubs. I hope that the noble Lord, Lord German, will be content if I deal with the substance of that amendment when we reach that debate. In summary, Article 3 of the UK-Rwanda treaty makes specific reference to unaccompanied children not being included in the treaty and that the UK Government will not seek to relocate unaccompanied children under the age of 18 to Rwanda.
Amendment 85 looks to put a block on commencement and seeks to ensure that there are detailed assessments of the impact of the Bill on victims of modern slavery and human trafficking. The independent monitoring committee, established on 2 September 2022 under the terms of the initial MoU, has subsequently been enhanced by the treaty between the UK and Rwanda to ensure that the obligations under the treaty are adhered to in practice. The treaty already makes clear that the agreed monitoring mechanisms must be in place by the time the partnership is operationalised.
As noble Lords also know, the new Independent Anti-Slavery Commissioner started her role on 11 December 2023. The Government will work collaboratively with the commissioner to ensure that modern slavery is effectively tackled in the UK, and will work with international partners to promote best practice.
As set out in the earlier debate, the Government’s assessment in the published policy statement, drawing on wider evidence documents, is that Rwanda is a safe country with respect for the rule of law. The treaty that the UK has agreed with Rwanda makes express provision for the treatment of relocated individuals, demonstrating the commitment of both parties to upholding fundamental human rights and freedoms without discrimination and in line with both our domestic and our international obligations.
Rwanda is a country that cares deeply about refugees, and I thank my noble friend Lord Bellingham for his perspective on this. That is demonstrated by its work with the UNHCR to temporarily accommodate some of the most vulnerable populations who have faced trauma, detention and violence. We are confident that those relocated under our partnership would be safe, as per the assurances negotiated in our legally binding treaty.
In answer to the noble Lord, Lord Kerr of Kinlochard, Clause 7(2) of the Bill says:
“In this Act, references to a person do not include a person who is a national of the Republic of Rwanda or who has obtained a passport or other document of identity in the Republic of Rwanda”.
All relocated individuals, including potential and confirmed victims of modern slavery, will receive appropriate protections and assistance according to their needs, including referral to specialist services, as appropriate, to protect their welfare.
Morality was mentioned by a number of speakers. I would like to put on the record a slightly different perspective on morality. I think it is immoral not to try to stop vulnerable people being exposed to dangerous and involuntary channel crossings. It is immoral to facilitate the activity of criminal gangs, most of whom, by definition, are also human traffickers. It is our moral imperative to stop these modern-day slavers and smash these criminal gangs that are exploiting people and putting others’ lives at risk. If any victims are identified, as I have repeatedly said, there are safeguards within the treaty to make provision for their vulnerabilities.
Lord Deben (Con)
On that point, those of us who raised the question about morality agree with all the Minister said about it but, at this moment, we are clearly uncertain about whether people who have been trafficked are able to get support in this country, from a system that was laid down by a Conservative Prime Minister, before there is any question of them being exported to Rwanda. If the Minister can show that to us in the letter, which I hope he copies to me and to others, we will be prepared to accept that we are being moral, at least in that category. At the moment, it looks to us as if we are not dealing with the issue of people who could not be deterred from coming here because they are being brought here compulsorily.
Lord Sharpe of Epsom (Con)
I thank my noble friend for that and will of course make sure that he is copied in to the letter. I heard very clearly what he said, and I speak on behalf of my noble and learned friend. Clearly, we would not wish to argue for a lack of morality in the safeguards that we are putting in place for vulnerable people.
Lord Purvis of Tweed (LD)
I have a specific question to ask. I do not doubt the Minister’s motives or morality; I think that doing this is just wrong. On 12 July—I checked the record—the Minister’s predecessor, the noble Lord, Lord Murray, told the House when we were voting on the trafficking amendments to the Illegal Migration Bill that only British nationals could be referred to the NRM. The Minister needs to be very clear in confirming that any national who arrives on a small boat can now be referred to the NRM. That is the clarification that I am seeking from the Minister; it is a very simple question.
Lord Sharpe of Epsom (Con)
Based on the information that I have available to me here, the answer to that is yes. However, I reserve the right to correct that in the letter if I am wrong, for which obviously I will issue the appropriate apologies.
If, despite all those safeguards, an individual considers that Rwanda would not be safe for them, Clause 4 means that decision-makers may consider a claim on such grounds other than in relation to alleged onward refoulement if such a claim is based on compelling evidence relating specifically to the person’s particular individual circumstances rather than on the ground that Rwanda is not a safe country in general.
I hope that I have been able to provide some reassurance to noble Lords and that the noble Lord will be content to withdraw his amendment.
Lord Scriven (LD)
My Lords, I thank all noble Lords for contributing to what has been a very powerful and at times deeply moving debate. It reminds us that we are talking not about a group with a label but about fathers and mothers, sons and daughters, brothers and sisters. In this group we have been talking about some of the most vulnerable of the vulnerable: those who have been trafficked, who have not arrived on our shores of free will but who are here because, as my noble friend Lord Purvis of Tweed said, they have been trafficked, have been brought here against their will and are being held in slavery against their will.
This debate has shown that when reality hits rhetoric, rhetoric never wins. I have not been convinced by the Minister’s responses, and in a way I feel sorry for him, because I am sure that, in his heart of hearts, he does not believe in the majority of the nonsense that comes out of his official briefs on this. It is so incredible that it could be read in a parallel universe, because it is not based in the reality which I think most sensible people in this country would understand.
It is amazing that we as a House of the British Parliament, to use the phrase of the noble Lord, Lord Randall of Uxbridge, now have to plead in order to try to put in a league table the right of the most vulnerable of the vulnerable for some basic protections that we would want to give every single human being. I do not think that the Minister has convinced me or the majority of the House that the answers he has given do that.
However, despite that, I am sure that on Report we will come back to these important issues of protecting mothers, fathers, sons and daughters. I beg to withdraw Amendment 18.
Lord Anderson of Ipswich
Member’s explanatory statement
This amendment and others in the name of Lord Carlile of Berriew would ensure the declaration that Rwanda is a safe country is capable of being rebutted in law by credible evidence. The amendments require decision-makers (including courts or tribunals) to consider credible evidence that Rwanda is not a safe country.
Lord Anderson of Ipswich (CB)
My Lords, I rise in place of the noble Lord, Lord Carlile, to speak to Amendments 19, 21, 25 and 28, in his name and in mine, which are also signed variously by the right reverend Prelate the Bishop of Manchester, the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Etherton. We are all grateful to Justice for its assistance in drafting these simple but important amendments.
The purpose of these amendments is to replace the irrebuttable presumption in Clause 2 that Rwanda is a safe country by a rebuttable presumption to the same effect. Decision-makers would begin from the same position that Rwanda is safe, but they would be entitled to consider credible evidence to the contrary. That is provided by Amendments 19 and 21, which amend Clause 2(1).
Amendment 28 supplies more detail by indicating the matters on which evidence could, if it is available, be presented: the risk of refoulement from Rwanda, the risk that there will be no fair and proper consideration of an asylum claim there, and the risk that Rwanda will not act in accordance with the treaty. These are all things that, under Clause 2 as it currently stands, may not be considered by independent courts and tribunals. They are not only relevant but of the highest importance to the lives and safety of anyone we send to Rwanda.
Finally, Amendment 25 would lift the bar on courts and tribunals considering claims that Rwanda is not safe. It is the logical corollary of Amendments 19 and 21: if decision-makers are entitled to consider credible evidence that Rwanda is not safe, the courts must be entitled to do so in order to determine whether they came to a lawful decision. Amendment 29, from the noble Lord, Lord Coaker, is welcome, but without an equivalent of Amendment 25 I am afraid that it does not do the job.
These amendments would not open the floodgates to vexatious claims. To be considered, any evidence must meet the credibility threshold—a well-established feature of Home Office practice, which, in a policy document entitled Assessing Credibility and Refugee Status in Asylum Claims Lodged on or After 28 June 2022, highlights a number of so-called credibility factors, including sufficiency of detail, internal consistency and plausibility.
To summarise, Clause 2, as it came to us from the Commons, requires officials to disregard relevant facts and prevents the courts calling them to account for it. With Clause 1, it creates a legal fiction—not in the field of tax law or planning law, where such things have their place, but in the totally different context of human safety and its opposite. It suppresses the evidence-based inquiry on which our common law and, ultimately, our democracy depend. Accept this and, as the noble Lord, Lord Hennessy, said in his Second Reading speech, with all his constitutional expertise:
“We shall be living in a different land, breathing different air in a significantly diminished kingdom”.—[Official Report, 29/1/24; col. 1022.]
These four amendments would enable those entrusted with these sensitive decisions to look at Rwanda as it is, not as we all hope that it may become. But I must acknowledge that, for this very reason, they go to the heart of this Bill, for it is not a bright by-product of this Bill but its whole purpose to assert to be true what first the Supreme Court and then our International Agreements Committee have found to be false, and then to protect that false assertion from rational challenge by decision-makers or in the courts.
This is not, like the previous group, a debate about exceptions. The deterrence theory on which the Bill is founded has the unfortunate result that it is the most objectionable features of this Bill to which the Government hold most tightly, even when, as here, they set a thoroughly depressing precedent. There are limits to my optimism that the Minister will respond positively to these amendments but, knowing him and respecting him as I do, I do not altogether abandon hope.
Baroness Chakrabarti (Lab)
My Lords, I support the noble Lord, Lord Anderson, who has put his case with the precision and succinctness that we remember of our late friend Lord Judge. These amendments would render the safety of Rwanda, which we hope will come in the future, a rebuttable presumption rather than an absolute conclusion. They echo my Amendment 34, which we discussed in the first group, but put more flesh on those bones. I commend them to the Committee.
I also remind the Committee that the amendments echo a finding by your Lordships’ Constitution Committee. Ministers say that it is precedented and normal to have lists of safe countries in asylum statutes. That has been the case in the past, but in those past cases the consequence of being a safe country on a so-called and unfortunately coined white list of countries has been only a rebuttable presumption. So Ministers were wrong, for example, to say during the course of the Illegal Migration Act, “Nothing special here, nothing new”, when they said that it will be an absolute conclusion and irrebuttable presumption that any country is absolutely safe.
We need to amend this Bill in good faith. We need belts and braces. We will have to look at other provisions and amendments around how it is that we will judge when Rwanda becomes safe, as we all want it to be. In any event, even when all the experts in the world—the UNHCR, independent monitors, parliamentary committees —say that things have gone well in the last couple of years and that the treaty worked out, and how wrong we were to be so sceptical as things have gone so well, so quickly, and Rwanda is considered to be one of the safest countries in the world for its treatment of asylum seekers and refugees, it is still right in principle that the presumption of safety should be a rebuttable presumption and not an absolute conclusion that squeezes out the judgment of civil servants, Border Force and Ministers, or ousts the jurisdiction of our courts.
Baroness Lister of Burtersett (Lab)
My Lords, I will speak to Amendment 30 in my name and that of my noble friend Lord Cashman and the noble Baroness, Lady D’Souza. I am grateful to them for their support and to Redress and RAMP for their help, and I refer here to my interests in the register.
This amendment would mean that Clause 2(1) and related subsections concerning the treatment of Rwanda as a safe country would not apply where
“torture … has taken place in Rwanda in the two years prior”,
or where the person concerned
“is themselves a survivor of torture”.
As such, it seeks to minimise the risk of torture arising from the Bill and to safeguard those who are survivors of torture.
The prohibition of torture is guaranteed by the UK through its ratification of various international and regional human rights instruments, particularly the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As a JCHR report on the Bill explains, UNCAT
“provides that a person cannot be removed to a State where there are substantial grounds for believing they would be in danger of being subjected to torture”.
The JCHR emphasis that this is
“a core principle of international law, to which the UK has committed itself on numerous occasions over the past 70 years”.
The existential significance of torture is underlined by a former UN special rapporteur on torture and professor of law, Juan E Méndez, who is himself a torture survivor. He says:
“Torture aims to dehumanise survivors through calculated acts of cruelty to remove the survivors’ dignity and make them powerless. It is a very serious human rights violation and an international crime. It is also a crime under UK national law, no matter where the torture was committed. Torture is forbidden under all circumstances and can never be justified”.
He is saying that this prohibition on torture is absolute and non-derogable, meaning that it cannot be suspended or restricted in any circumstances. This prohibition includes a ban on sending someone to a country where they are at risk of torture or where there is a possibility that they will be sent on to another third country where such a risk may exist. The amendment simply attempts to ensure that the first of these does not happen, while protecting those who have already been subjected to torture.
My noble and learned friend Lord Falconer of Thoroton referred to the issue of torture in the context of refoulement on Monday. However, this amendment concerns torture in Rwanda itself. Redress asked me to table this amendment because of consistent reports of torture being used in Rwanda by the military and the police. According to Human Rights Watch’s submission to the International Agreements Committee, serious human rights abuses continue to occur in Rwanda, including repression of free speech, arbitrary detention, ill-treatment and torture by Rwandan authorities.
Baroness D'Souza (CB)
My Lords, I too have added my name to this amendment, and I declare an interest as a patron of Redress, the anti-torture organisation. A recent Westminster Foundation for Democracy report pointed out the common pitfalls that democratic Governments fall into when dealing with authoritarian regimes, one of which is to promote their economic and other development at the expense of acknowledging less desirable characteristics. Rwanda would seem to be a classic case of this pitfall.
As we have heard at length and in detail from the noble Baroness, Lady Lister, the human rights record of Rwanda is not good, to say the least. Torture, among other crimes against humanity, continues to be carried out. This amendment is therefore essential. I remind your Lordships of the case of Victoire Ingabire, who is the only opposition parliamentarian in Rwanda and has spent eight years in jail, some of them in solitary confinement. It would be useful to ask her what her views are on torture and other crimes against humanity in Rwanda at the moment, in both formal and informal sectors.
We have enough evidence to suggest that this amendment must be included in the Bill if we are to ensure freedom from torture for those whom we send to Rwanda.
Lord Clarke of Nottingham (Con)
My Lords, I support these amendments, which seem to me to go to the heart of the most extraordinary feature of this Bill. It is essentially intended to reverse a legal defeat the Government suffered in the British Supreme Court on a matter of law. Five Supreme Court judges listened to the evidence and decided as a matter of fact that Rwanda is not, at the moment, a safe country for the purposes we are discussing.
The Government have reacted to that judgment in a way no other disappointed litigant could possibly have contemplated. They have decided to invoke the sovereignty of Parliament and to ask both Houses to pass legislation that declares that the facts are indeed contrary to those which the Supreme Court declared to be the factual situation. The facts are to be regarded as the facts the Government state for the indefinite future, whatever happens from now on, unless or until this legislation is amended or repealed—if it ever is. I spoke at Second Reading, so I will not repeat all the arguments I made then, but I continue to be completely flabbergasted by the constitutional implications of the Government acting in this way.
Has the Minister been able to find any precedent for this occurring? Have any Government in a similar situation ever decided to reverse any legal defeat by just passing legislation saying, “The facts are what we say they are, not the facts the Supreme Court has found on the evidence”? I think it unlikely. For that reason, it is an extremely dangerous precedent. For that reason, I very much hope that there will be a legal challenge that will enable the Supreme Court to strike it down as unconstitutional in due course. But the better step would be for Parliament not to pass the legislation in the first place.
Finally, the most striking feature is that the legislation declares the facts to be the facts from now on, so long as it remains on the statute book, regardless of future events. Let us say that a situation arises which I very much hope does not, given that the Rwandan Government are one of the more attractive, by comparison, of African Governments. But say a coup were to occur in Rwanda and the present, fairly benign dictator were to be replaced by a much more malign dictator. What the Government are asking us to declare is that the courts can be told that Rwanda remains a safe country and they are not to entertain credible evidence that events in Rwanda have occurred which change that situation. It is being laid down as a matter of law for the indefinite future, regardless of whatever startling further facts might emerge which someone might put before a court. I find that completely preposterous. I very much hope that we would never elect a British Government who would be so outrageous as to proceed in those circumstances, but that is the legal position this House is being asked to endorse.
I find it incredible that anyone can really expect a British Parliament, in 2024, to pass legislation of this kind. I ask the Minister to reconsider and to let us know whether the rule of law, the admission of evidence and the consideration of that evidence by British judges might be allowed to function in its normal way, and whether the Government are prepared to reconsider at least the wording and the detail, particularly of Clause 2 of the Bill they have put before us.
The Lord Bishop of Bristol
My Lords, my right reverend friend the Bishop of Manchester regrets that he cannot be here today to speak to Amendments 19, 21, 25 and 28 in the name of the noble Lord, Lord Carlile of Berriew, to which he has added his name. I am grateful to the noble Lord, Lord Anderson of Ipswich, for setting out the case clearly, and I am particularly grateful to follow the noble Lord, Lord Clarke of Nottingham, as he has made the case so powerfully.
My right reverend friend and I are concerned, not as lawyers but as citizens, about the constitutional precedent the Bill sets. The role of the judiciary as distinct from the Government and Parliament must not be infringed. Parliament creates laws but judges and juries are responsible for the finding of facts. Where the Supreme Court has ruled that Rwanda is not safe, it is an abuse of Parliament’s powers, as we have just heard, for it to attempt to declare otherwise. We are concerned that the Bill represents a dangerous step. The amendments in the name of the noble Lord, Lord Carlile, therefore attempt to preserve the important principle that facts should be considered by the courts. We must surely be able to take into account credible evidence that Rwanda is not a safe country.
It is not unreasonable to consider, as we have just heard, that the situation on the ground in Rwanda might suddenly change, even if the treaty is properly put into effect to take into account the Supreme Court’s concerns. It is surely right that such a change could be considered in law. Not only is this a vital safeguard for potentially vulnerable people at risk of being sent to Rwanda; it is a vital safeguard for our democracy itself. We must be able to take credible evidence into account when managing any policy, be it on Rwanda or anything else, and we must not be in the habit of setting aside court verdicts we do not like by bringing forward legislation.
My right reverend friend the Bishop of Manchester has also added his name to the proposition put forward by the noble Viscount, Lord Hailsham, that Clause 2 should not stand part of the Bill. Removing this clause would remove the requirement that all decision-makers must treat Rwanda as a safe country. The amendments to which I have already spoken try to mitigate the implications of legislating that a country is safe ad infinitum, but in truth the courts, immigration officers and tribunals need the capacity to consider the facts about whether Rwanda is a safe country in general. Removing the clause altogether is the best way to do this and to maintain independent judicial oversight. My right reverend friend and I agree that this principle is fundamental to the rule of law and access to justice.
Lord Falconer of Thoroton (Lab)
My Lords, every time in this Committee you think that the Government cannot be more flattened than they were in the previous debate, they are even more flattened. I refer to the speech of the noble Lord, Lord Clarke of Nottingham, who in my respectful submission completely flattened the Government’s case for not allowing the courts in.
I support what the noble Lord, Lord Anderson, is proposing. As the Committee understands, it means that if somebody challenges whether Rwanda is a safe country in general, the courts must decide on it. The Government are obviously under no illusions about what such a clause would mean. It would not mean that an asylum seeker, every time they were in trouble and might be about to be expelled, could raise the question generally of whether Rwanda is a safe country; it would mean in practice that, eventually, one case in a high Court of Appeal would definitively decide whether at that time Rwanda was a safe country in general or not.
The practical consequence of the amendment from the noble Lord, Lord Anderson, is that the courts will determine once—and maybe again in a few years’ time if the position has changed—whether it is a safe country in general, and everyone else will be bound by that. The Government accept that, if the issue is whether an individual’s circumstances put him or her at risk, they have the right to challenge in court anyway. By refusing to allow this to happen, they are cutting out a one-off shot by the courts to determine whether Rwanda is a safe country in general.
Why on earth would they not want that to happen, as their case is not that Rwanda might or might not be a safe country but that it is a safe country? Might I venture to suggest a reason why they are behaving in this extraordinary way? It is because it will take a bit of time for the courts to reach that conclusion—maybe two or three months from the Bill becoming law—and in that time there might be a general election and nobody will have flown to Rwanda. Could a responsible Government be willing to put asylum seekers’ lives at risk on the chance that Rwanda might not be a safe country? Obviously not, without a proper examination by the courts.
What I am saying does not challenge the basic policy of deporting to a third safe country or offshore processing—that debate is for another day—but, if the Government are going to do this, to give people confidence in them and to give the world confidence in the UK, surely they should do it lawfully, not unlawfully. They should not be advancing bogus reasons for cutting out the courts, when the courts are there in every other consideration of whether a country is safe. It is very discreditable.
Lord Deben (Con)
My Lords, I hope the Committee accepts that I rarely intervene when the lawyers are at it, because I am not of great assistance, particularly to my noble friend of a great many years Lord Clarke. But he asked the Government to tell him of an occasion when this has happened before. I will remind him of one: the court of King Canute told him that, because he was sovereign, he could tell the waters to stop and the tide to go out. Of course, we were never taught it this way round in school, but the truth is that King Canute went to prove to his courtiers that he could not reverse the truth.
The problem with this part of the Bill is that it proposes that the sovereignty of Parliament is able to make a situation true, whether it is or not. In other words, this would be wrong even if the Supreme Court had not ruled that this is not a safe country. It is not part of the sovereignty of Parliament to declare truth; it is part of the sovereignty of Parliament to declare the law—and, in so far as we are sensible, we try to make the law as close to the truth as possible.
Now this Government have done a remarkable thing. There are many bishops on the Bench at the moment, so I will speak with a certain amount of care, but I seem to remember:
“‘What is truth?’ said jesting Pilate, and would not stay for an answer”.
This Government have not even asked the first question. They assert that this is true and, as my noble friend suggested, not only is it true but it will always be true until, I suppose, the Government—because the courts will have no place in this—say that it is not true.
The reason I feel so strongly about this is that I have spent nearly 11 years of my life as chairman of the Climate Change Committee. One of the problems I have faced all that time is people asserting “my truth” —not “the” truth but “my” truth—and that their truth is the equal of anyone else’s truth. That is not the nature of truth. Truth has constantly to be questioned. Doubt is an essential part of faith; you have constantly to question. The Government are proposing a unique situation, which is that we shall never question their decision, at this moment, that Rwanda is a safe place. I am not going to try to say whether I think it is safe or not. I think merely that it should be under constant consideration if we are going to take other human beings out of our jurisdiction and place them somewhere else.
That, if I may say so to my noble friend, is a moral matter. We remove responsibility by doing this, and the one way in which we can protect ourselves is if the place to which we send them is constantly available for questioning. The only place where that questioning can take place is in a court because courts listen to all the arguments, hear all the evidence and make a decision. If you do not like the decision, you can appeal it, but finally you have to accept it. Once you undermine that, I do not see how you can uphold the rule of law anywhere else. Once the Government have said that their truth is true and there is no other truth, we have moved into a position which is entirely unacceptable in a democracy. This Government have to understand that—on this issue perhaps alone—this House will have to stop this Government’s proposal by whatever way. This is our duty. We are not a House which just puts the details of law into some sense. We also have a constitutional position. The Prime Minister made his rather curious statement about the will of the people, but the will of the people can be protected only if this House stands up for the constitution of our nation, and our constitutional position must be that the Government cannot determine truth. Only the courts can do that.
The Lord Bishop of Leeds
My Lords, I will be very brief. I endorse the speech by the noble Lord, Lord Deben. I want to question slightly the use of truth because there is a difference between truth and factuality. Something can be not factual, but it can be true. Let us look at a parable, for example. We have not even got as far as factuality when we are talking about truth. To put it very simply—I am in terrible danger of evoking Immanuel Kant here, but I will try to avoid that—if I say I am a banana, it does not make me a banana. There has to be some credible questioning of that. I am not a banana. A country does not become safe because someone says it is, even if a Government say that. That has to be demonstrated, and it has to be open to question, particularly, as has been said many times, because the word “is”—we are getting very Clintonesque in his impeachment hearings when we get into the meaning of “is”—has a permanence about it that does not allow for the possibility of change. I fail to see rationally how this is such a problem for the Government, other than that there is an ideological drive in this which is not open to argument.
Lord Scriven (LD)
My Lords, I shall speak to Amendments 22, 37 and 42 in the name of my noble friend Lord German, to which I have put my name. These are probing amendments to bring out the mistreatment of evidence that this Bill is enforcing. It is not just that the courts are being cut out but, in the very limited times that an individual can go to a court or tribunal, the truth also is being denied. The court cannot look at the truth in those individual cases.
Lord Cashman (Lab)
My Lords, I rise briefly to support the amendments in this group, which seem eminently sensible—that is probably why the Government will reject them. I also support particularly Amendment 30, to which I have added my name. I am not going to go over the points raised by my noble friend Lady Lister, who has outlined the reasons for the importance of this amendment extremely well.
There have been consistent reports of torture being used in Rwanda, by both the military and the police. The United Nations has concluded that Rwanda does not have in place the necessary safeguards against torture or the structures to respond to it. Recent reports also confirm that torture persists in Rwanda, along with continued risks of refoulement to third countries. It is clear in those reports that Rwanda does not have in place safeguards against torture, or an effective process for responding to the allegations of torture. There is a long list of cases and reports set out by the eminent organisation Redress, and I note them for the record in Hansard.
At the UN Human Rights Council universal periodic review of Rwanda in January 2021, as has been cited by my noble friend Lady Lister, the United Kingdom Government criticised Rwanda for
“extrajudicial killings, death in custody, enforced disappearances and torture”.
I ask the Minister: what has been the miraculous turnaround in the past three years?
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.
Lord Purvis of Tweed (LD)
My Lords, perhaps it is only the House of Lords that when asked to find a precedent can refer back to 1531. I say to the noble and learned Lord, Lord Hoffman, that I was aware of that issue, because I have seen the Act. It was on display in the National Archives in its exhibition on treason last year. I think the Minister has also seen it. It was also noted that it was repealed quite shortly afterwards.
Lord Purvis of Tweed (LD)
The Government are asking us to be the perpetual judge of the legislation and actions of another country. That puts the legislature in an unusual position. In fact, it puts it into a unique position, specifically for this country. I am not a judge on Rwandan legislation, policy or actions. I have been to Rwanda; I respect it greatly and I thoroughly enjoyed my visit. I have been massively impressed with the development of Rwanda that is in their hands.
The noble Baroness, Lady D’Souza, referred to the eloquent points made by the noble Baroness, Lady Lister, and the noble Lords, Lord McDonald and Lord Cashman, with regard to torture. She told us that if we wanted to be a judge, we should speak to Victoire Ingabire, an opposition leader who is currently under house arrest. I have. I have been in her house, and I have asked her that question. Subsequent to my meeting the opposition member, officials of the Rwanda Government asked the hotel that I was staying at to inform on me. I am not a judge as to whether that means that Rwanda is a safe country. That is one example—I think, a bad example. It is probably an illustrative example. However, I am not a judge on that—our courts are. That is why we have them here.
We are asked not just to pass a “Rwanda is safe” Bill but to pass—
Baroness D'Souza (CB)
I thank the noble Lord for giving way. I want to add to his experience that, the minute I had visited Victoire Ingabire, my phone was nicked.
Lord Purvis of Tweed (LD)
I am grateful to the noble Baroness. The Minister might see two examples and ask when it becomes a pattern. Again, I am not a judge for it. As I was saying, we are not just asked to judge that Rwanda is a safe country under this legislation but we are asked to agree to legislation that states that Rwanda will never be unsafe. How on earth can we possibly do that?
On Monday, the Minister found it incredibly difficult to determine that Rwanda is currently safe. I remind the Committee of his response—because it is worth reminding the Committee, if not him. My noble friend Lady Hamwee asked whether there would be safeguards in place to make Rwanda safe. The noble and learned Lord, Lord Stewart of Dirleton, said:
“My Lords, it is a matter of working towards having the safeguards in place”.
I then asked:
“If the Rwandan Government are ‘working towards’ putting safeguards in place, that means they are not currently in place. Is that correct?”
The noble and learned Lord said:
“It must do”.
That is the Government saying that it is not currently safe. Why is that important for this group of amendments? It is important because I later asked the Minister to confirm that
“no relocation would take place until those safeguards would be in place”.
The noble and learned Lord replied:
“I can answer the first part of the noble Lord’s question in the affirmative”.—[Official Report, 12/2/24; cols. 64-70.]
We know that there will be no relocation until safeguards are in place that Rwanda will be a safe country. The Minister was unable to confirm when that would be the case. However, the Bill is asking us not only to jump ahead of that but to deny courts from ever considering whether Rwanda could be unsafe. It is still quite hard to work out the rationality of where we are.
Lord Green of Deddington (CB)
My Lords, I will make a brief postscript to the very powerful interventions that have been made by many other Members, including and particularly by the noble Lord, Lord Deben. I point to some practical aspects. The fact of the matter is that the asylum system is in chaos. The number of cases that are waiting to be assessed would fill Wembley Stadium. This Government are in real difficulty and the next Government, whoever they are, will be in equal difficulty if we do not find a way forward. I accept all the legal difficulties that have been raised very effectively, but let us also keep in mind the practical aspects, and that if this is allowed to continue there will be a very unfortunate effect on relations between communities in our country.
Lord Purvis of Tweed (LD)
The noble Lord is an expert in these areas. If the Bill goes through, what is his estimate of how many people will be relocated from the backlog that he has referred to, and over how many years? I think it could take up to 20 years. How will that deplete Wembley Stadium?
Lord Green of Deddington (CB)
I do not think that anybody has any idea of the answer to that. That is one of the difficulties. I am pointing to the social difficulties that will also follow. Therefore, we must give the Government some space in order to make an impression on the future inflow of cases to this country.
Lord Coaker (Lab)
My Lords, I also pay tribute to the quality of the contributions that we have had from so many noble Lords in the debate on this group. I recognise some of the shortcomings of my Amendment 29, as the noble Lord, Lord Anderson, pointed out, but it is an attempt to discuss refoulement. I will come back to that.
The amendments from the noble Lord, Lord Carlile, which the noble Lord, Lord Anderson, spoke to, have much to commend them about ensuring the role of the courts, as does my noble friend Lady Lister’s amendment, supported by the noble Baroness, Lady D’Souza, and the noble Lord, Lord Cashman. Indeed, so do the other comments from the noble Lords, Lord Deben, Lord Clarke and Lord Purvis, and many others. I will put those amendments and our discussions in the context of something that we have heard much talk about: the importance of the unwritten constitution on which our country functions, and the role and importance of the House of Lords.
I do not believe that what I am going to say is true of the noble Lord, Lord Sharpe, or his colleague, the noble and learned Lord, Lord Stewart. But it is true that something was published on Monday evening— I did not see it until this morning, when it was sent around as part of the House of Lords Library summary of press cuttings that are sent to many of us, if not all of us. It said that the Prime Minister of our country
“challenged Labour and the House of Lords to back the bill, saying: ‘We are committed to getting it through parliament, but unfortunately, we don’t have a majority in the House of Lords’”.
A vote was lost in this House of Lords. Whatever the rights and wrongs of it, a vote was had and His Majesty’s Opposition officially did not support it, and we have never talked about blocking or delaying the Bill. We are discussing these amendments today, so why is the Prime Minister saying that we are talking about blocking and delaying it? I would have thought that if we are talking about the constitution, we have a perfect right to stand up in here. All Members of this House, from all the different parties, have made different contributions with respect to the Bill to try to ask the Government to think again and revise what they are doing. What is unconstitutional about that? We might as well pack up. What is the point of our debates and discussions—the brilliant speeches we have heard today and a couple of days ago? Even if we disagree, what is the point of it, if all the Prime Minister of our country says is that we are being deliberately destructive and trying to block the Bill, when we said quite categorically that we are not going to?
To continue:
“Everyone else right now as we speak is lining up to do deals”—
this is the Prime Minister—
“in the House of Lords to block us … We’ve already seen that in the Commons”.
Does it make any difference what anybody says? The amendments that the noble Lord, Lord Anderson, spoke to on behalf of the noble Lord, Lord Carlile; the comments that the noble Lords, Lord Clarke and Lord Deben, made; the comments that the noble Viscount, Lord Hailsham, made the previous day—do they make any difference? Are we just going through a rubber-stamping process here? What is the constitutional position of the House of Lords if the Prime Minister of our country is saying that none of the amendments that we are discussing—in this group, the last group, the next group and the groups that will come next Monday—means anything?
The worst thing was when I read in the Sun that all 93 amendments that have been tabled are “wrecking amendments”. That goes for the noble Lord, Lord Jackson, who was in his place a moment ago. He has tabled an amendment, as has the noble Lord, Lord Kirkhope. They are not “wrecking amendments”. They are doing the proper job of this House to say to the Government, “Have you really got this right? Do you really not think you should think again?”.
I ask the noble and learned Lord, Lord Stewart, and through him the noble Lord, Lord Sharpe, and the others: when we have these debates, do they go back to the department and say, “Coaker got up and had a real go at us about something. Did he have a point?”. The noble Viscount, Lord Hailsham, or the noble Lords, Lord Deben and Lord Howard, said this, and the noble Lord, Lord Purvis, said that. My noble and learned friend Lord Falconer said this, and my noble friends Lady Chakrabarti and Lady Lister tabled these amendments, including those we have today about torture. Is it worth bothering? Is the Prime Minister saying that this is just them trying to stop the Bill, when people in this Chamber have the integrity and belief that it is their job to question the Government? That is the constitutional role of this House of Lords, and we should be proud of it and stand up for it. We will not be intimidated or bullied by a Prime Minister into just accepting that we have no right to question the Government because he says it. Will the noble and learned Lord, Lord Stewart, take that back to the Cabinet? Will the noble Lord, Lord Sharpe, take it back to the Home Secretary and the Prime Minister?
It is good to see the Government Chief Whip here and I hope that she will make those representations as well, because it is really important. It does not matter which amendment we are talking about. This Chamber deserves that respect from the Government: to listen to what is said and to make the counter-argument if they do not agree with it. It is perfectly reasonable for the Government to do that as well.
I could not believe what I read this morning. I am sure it is an opinion shared by the majority in this House that even if people disagree, they have the right to be heard and have what they say considered by the Government of the day. That is the constitutional position our country has existed upon, and a constitutional arrangement of which we should all be proud. Nobody is trying to block or wreck the Bill, but we have a perfect right to stand up and say whether the Government have got it right.
The amendments of the noble Lord, Lord Carlile, were spoken to by the noble Lord, Lord Anderson. What can be more important than asking whether the Government are seeking to undermine the role of the courts in determining whether the rule of law is being upheld? Is it not reasonable to ask the Government that question, and to table amendments to that effect? Is it not reasonable for my noble friend Lady Lister to ask whether torture is a factor? The Government are perfectly entitled to say that amendments are unnecessary, but these are legitimate questions, and they cannot simply say, “We’re going to ignore them. This is the Government’s position”. Real questions have been asked about the rule of law, and the Government are just saying, “We’re going to overturn the Supreme Court judgment not through an argument or opinion, but by simply changing the facts and ruling that Rwanda is safe. It doesn’t matter what the Supreme Court determined —we’re going to do that”.
I turn to my own Amendment 29 and will read from the JCHR report. The main reason it gives is that
“the Supreme Court, after considering all the evidence placed before it, held that Rwanda was not a safe country because of the risk that individuals sent there would be subjected to refoulement”.
My amendment therefore seeks to address the Supreme Court’s concern that there was a risk of refoulement. The Minister will no doubt respond by saying that the Government have dealt with that, because Article 10(3) of the treaty provides the mechanism to do so. The heart of the problem throughout is that the Government are saying that Rwanda is safe, whereas all the various amendments say that, as the Supreme Court and the International Agreements Committee recognise, it may be that Rwanda becomes safe. What cannot be simply stated is that Rwanda is safe now.
Article 10(3) states:
“The Parties shall cooperate to agree an effective system for ensuring that removal contrary to this obligation does not occur”.
Can the Minister tell us what that effective system is? Is it already in operation, and if not, when will it be? What is the timeline, and what do we know about it since? It is through Article 10(3) of the treaty that the Government seek to address the problem the Supreme Court identified.
The Minister, the noble and learned Lord, Lord Stewart, will no doubt say, as the noble Lord, Lord Sharpe, did on the previous set of amendments, that this is necessary because of the deterrent effect. The very helpful briefing on the Bill provided by the House of Lords Library reminds us that the Permanent Secretary required ministerial direction to carry on with respect to deterrence, because of the lack of evidence that the Rwanda policy had any deterrent effect. The Home Secretary of the day provided that letter.
I finish where I started. I ask for an assurance from the Minister that our amendments are not seen as wrecking amendments by the Ministers dealing with the Bill, and that they take them back to their departments and consider whether some Members of your Lordships’ House may actually have a point. Rather than blocking the Bill or even delaying it, many of your Lordships are trying to say, “Even though we oppose it, we are trying to improve it”. This House deserves, at the very least, that respect from the Government.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, it is customary on these occasions to thank all noble Lords directly for their contributions to the Bill; but, in light of the remarks the noble Lord, Lord Coaker, made from the Opposition Front Bench, the Committee will pardon me if I address those first.
I first acknowledge that, with characteristic courtesy, the noble Lord, Lord Coaker, approached me informally and indicated that he would be making these points. He was also, if I may say so, animated by a characteristic concern for the standing of this House. I can give the assurance—which, if assurance were necessary, my noble friend Lord Sharpe of Epsom gave me a moment ago as the noble Lord was winding up—that we as Ministers reflect very carefully on matters raised at every stage in the House, as we do with Questions, and we are concerned to pass back to directing departments and colleagues the views of the House, with an end to finding community between all sides of the House, or at least majorities of the House where possible. We do not allow these matters to go unsaid. Regarding one matter the noble Lord raised, the Government Front Bench can take no responsibility for the editorial policy of a national newspaper. Nonetheless, we can observe where that newspaper errs in anything it says.
Lord Coaker (Lab)
Is the Minister saying that the quote of the Prime Minister’s words is not accurate?
Lord Stewart of Dirleton (Con)
I certainly was not. I was saying that, when the noble Lord quoted, or referred to the content of, that newspaper article describing every amendment as being a wrecking one, that is the matter to which I referred. I am happy to put the record straight. I am grateful to the noble Lord for his nod of acceptance.
I thank all noble Lords who participated in this debate. The Bill builds upon the treaty between the United Kingdom and the Government of Rwanda, signed on 5 December 2023. The treaty, along with evidence of changes in Rwanda since summer 2022, will enable Parliament to conclude that Rwanda is safe, and the new Bill provides Parliament with the opportunity so to do.
That last proposition came under attack from a number of areas in the House. If I do not mention or cite them all by name, noble Lords will forgive me. I mention in particular the contributions from my noble friend Lord Clarke of Nottingham, the noble Baroness, Lady Bennett of Manor Castle, the noble and learned Lord, Lord Hoffmann, speaking from the Cross Benches and, indeed, the noble Lord on the Opposition Front Bench.
I emphasise points made in Committee on Monday. The treaty does not override the judgment of the United Kingdom Supreme Court; rather, it responds to its key findings to ensure that the policy can go ahead. The court recognised in its decision that changes may be delivered in the future which would address the issues it raised. These are those changes. We believe that they address the Supreme Court’s concerns, and we will now aim to move forward with the policy and help put an end to illegal migration.
Lord Scriven (LD)
My Lords, the Minister has raised a really important point concerning the treaty. Clause 2(4) states that
“a court or tribunal must not consider … any claim or complaint that the Republic of Rwanda will not act in accordance with the Rwanda Treaty.”
That is quite significant. The Minister is saying is that the treaty deals with the Supreme Court’s concerns, but the Court will not be able under this Bill to determine whether the concerns that have been raised, which the treaty is meant to deal with, have been dealt with to the satisfaction of the UK Supreme Court. Is that correct?
Lord Stewart of Dirleton (Con)
My Lords, the policy of the Bill is to respond to the United Kingdom Supreme Court’s decision in the form of this treaty and the Bill which accompanies it. This does not, Canute-like, revise or reverse the truth. As I say, it is a response to the findings of the Supreme Court—findings made, as they were, in relation to a period of time which dates from the High Court’s consideration of the matter.
Lord Deben (Con)
These were findings that related to a period of time. The Government are saying that that period of time has moved on and therefore they make other findings. But they are also saying that no one may make any other findings, even if that moves on. In other words, the Government are saying that there is only one moment in which we can make this judgment. We have not got there yet—the Government have said we have not got there—but there is one moment, and once the judgment is made, although I do not know what the opposite of “retrospectively” is, it cannot then be changed, even if the facts change and even if the courts want to change it on the evidence. Will he please tell me whenever or wherever, in what Bill, that has ever been put before this or any other House?
Lord Stewart of Dirleton (Con)
My Lords, the point of the principle of the Bill is to remove the matter from the consideration of the civil courts and to place it before the court of Parliament; to take the matter from the civil courts and place it in the international and diplomatic sphere.
Lord Purvis of Tweed (LD)
What are the mechanisms —since, as my noble friend Lord Scriven said, the courts are no longer able to look at this—by which we can judge whether Rwanda will adhere to its treaty obligations? The Minister said that this is now going to be a duty of the court of Parliament: what is our mechanism in Parliament for doing that?
Lord Stewart of Dirleton (Con)
First, I remind the noble Lord of some of the constitutional truths that were adverted to in the debate on Monday. No Parliament can bind its successor. Parliament can always come back and revisit matters in future. On the specific point of how Parliament will come to learn of any matters that are of concern, I will refer to this in greater detail in the course of my submission, but I can refer the noble Lord to the independent monitoring committee which the treaty and the Bill establish, and to the work that that will do, feeding back to the joint committee of the two Governments.
Baroness Chakrabarti (Lab)
I am fascinated by this new “court of Parliament” concept. Anyone who thinks that the Age of Reason ended in 1800 will need to read Hansard tomorrow because, if I may say so, the Conservative Privy Council Benches have perhaps delivered some of the finest contributions to this Committee today. I, for one, will be rereading the noble Lord, Lord Deben, because enlightenment is clearly not a single moment but something that has to be fought for again and again so as not to end up where the noble Baroness, Lady Bennett, warned us. If there is now to be a court of Parliament that is examining the safety of Rwanda on an ongoing basis, I do think the noble Lord, Lord Purvis, should have an answer on what procedures there are, under the Bill as currently drafted, for these monitoring committees to report not just to the Government but to the court of Parliament that is being so elegantly expounded by the noble and learned Lord.
Lord Falconer of Thoroton (Lab)
My Lords, before the Minister answers the question, this is a rather unusual court, because it is a court that does not afford the most basic rights of justice to the people who will be affected by the decisions we make. In any other court, if you are about to be exported to a place you say will torture you, you can normally at least have your voice heard; but not in this new court that the noble and learned Lord has just set up.
Lord Stewart of Dirleton (Con)
First, as the noble and learned Lord is perfectly well aware, the Bill blocks the possibility of refoulement and of return to any country other than the United Kingdom. In relation to the point from the noble Baroness, Lady Chakrabarti, that Parliament is a court is a familiar and well-known concept; it is a name by which Parliament is well known.
Lord Purvis of Tweed (LD)
Not on the theory point but on the practical point of what the Bill states, can the Minister just expand a bit more? He said that there will be a monitoring committee that will report to the joint committee of the Governments. How will they report to Parliament if we are to make a judgment, subsequently, that we wish to repeal this?
Lord Stewart of Dirleton (Con)
As I said to the noble Lord when first responding to him, I will address those matters in more detail in the course of my submission.
Clause 2 creates a conclusive presumption that Rwanda is generally safe and will not send someone to another country in breach of the refugee convention. I respectfully disagree with my noble friend Lord Clarke of Nottingham, the right reverend Prelate the Bishop of Bristol and others that this amounts to an abuse, far less to a constitutional innovation. In relation to a point that the noble and learned Lord, Lord Falconer of Thoroton, made on the matter of how the courts might respond, the noble and learned Lord put it to the Committee that there would be one case that would decide. I congratulate him on his optimism, but he must surely recognise—reflecting on the practice of immigration across the decades—that what happens is that, where a position is advanced and set forth before the court, it will remain open subsequently for people to argue that there has been a change in fact or a change in circumstances. Therefore, the proposal that the noble and learned Lord advances to the Committee that there would simply be one case that would determine all things is, I regret, a proposition to which I cannot accede.
The conclusive presumption as to the safety of Rwanda enables Parliament to confirm that Rwanda is safe for the purposes of the Migration and Economic Development Partnership. It reflects the strength of commitment from the Government of Rwanda on the safety and support that they will provide to individuals relocated there. Clause 2(2) notes that a decision-maker means the Secretary of State, immigration officers and the courts, including tribunals, when considering a decision relating to the relocation of an individual to Rwanda under provision of the Immigration Act. Clause 2 also excludes several general grounds of challenge and, as set out in subsection (3), prohibits generalised appeals or reviews.
As I have said already, the Government have signed an internationally legally binding treaty responding to the Supreme Court’s conclusions, in particular on the issue of refoulement. We have been clear that Rwanda will not remove any individual relocated there to another country, except to the United Kingdom in very limited circumstances. The implementation of these provisions in practice will be kept under review by the independent monitoring committee, whose role is enhanced by the treaty, and which will ensure compliance with the obligations. Therefore, as set out in subsection (4), there is no reason for a court or tribunal to consider any claim that Rwanda may remove a person to another state, that an individual may not receive fair and proper consideration of an immigration claim in Rwanda or that Rwanda will not abide by the treaty terms. Finally, subsection (5) is a “notwithstanding” provision, requiring courts to honour—I give way to the noble Lord, Lord Scriven. I am so sorry, I thought the noble Lord was poised to intervene.
Finally, subsection (5) is a “notwithstanding” provision, requiring courts to honour the previous clauses, notwithstanding all relevant domestic law, the Human Rights Act 1998 to the extent that it is disapplied by this Bill, and any alternative interpretation of international law reached by the court or tribunal.
The effect of Amendments 19, 21, 25 and 28, in the name of the noble Lord, Lord Carlile of Berriew, would be to remove the requirement for decision-makers and courts or tribunals to treat conclusively Rwanda as a safe country. That is similar to the terms of Amendment 22, tabled by the noble Lord, Lord German. These amendments would allow individuals to present evidence to challenge removal decisions on the grounds that Rwanda is not generally a safe country.
Baroness Chakrabarti (Lab)
I just remind the noble and learned Lord that he said he would return to the temporal issue of how Parliament would be able to reassess the safety of Rwanda, if facts changed—if there were a sudden change of government or a coup, or if the monitoring committee found that people had been refouled, which was the fear of the Supreme Court, of course. What processes, under the Bill as currently crafted, are there for the court of Parliament to take an application to reconsider its safety, so that it is not determined as safe for all time?
Lord Stewart of Dirleton (Con)
My Lords, the noble Baroness’s point echoes the one made by the noble Lord, Lord Purvis of Tweed. I had a brief communication on it with my noble friend Lord Sharpe of Epsom as the noble Baroness was speaking. I think the temporal point that the noble Baroness referred to and the noble Lord raised is to be dealt with in a subsequent group. Perhaps noble Lords will be content if we treat that matter in detail in that subsequent group. I have no doubt that the noble Baroness and the noble Lord will bear in mind the burden of their questions and will come back to us if we have not answered them to their satisfaction. I am obliged to them.
I move on to consider Clause 4, which preserves the ability of individuals to challenge removal due to their particular circumstances where there is compelling evidence that Rwanda is not a safe country for them, other than where that allegation relates to onward refoulement, in relation to which the treaty is very clear. That is the appropriate mechanism to ensure that an individual’s circumstances have been considered.
In response, therefore, to Amendments 37 and 42, tabled by the noble Lord, Lord German, we maintain that it is right that the scope for individualised claims remains limited to prevent persistent legal challenges covering the same ground and to enable us to remove individuals who have entered the United Kingdom illegally.
The noble Lord, Lord Scriven, raised, quite appropriately, the constitutional implications of our response to the Supreme Court’s decision. I underscore my submission to the Committee: no constitutional violence has been done in referring this matter to Parliament, and in taking it into the international, diplomatic and political sphere, as opposed to the civil courts. Ultimately, returning to a remark made by my noble friend Lord Howard of Lympne, who is in his place, this Committee must be concerned with the question of accountability for decisions.
The noble Lord, Lord Scriven, also made the point that evidence must be of an holistic nature. The rules of evidence are based on the principle of exclusion of that which has nothing to do with matters of fact and law with which a particular case is concerned. I wholly accept the point that the noble Lord was trying to make, which was that all individual circumstances must be borne and considered in the round. Although referring to individual reasons is appropriate for considering individual cases, I dispute his submission that it is appropriate for the systemic general claim. I do not accept that.
Lord Scriven (LD)
If the arrangements in the treaty are not in place, that would be specific to the individual, yet the Bill excludes that being looked at by the court. Would that kind of issue—whether the provisions within the treaty are in place—not be relevant to an individual case?
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.
Baroness Lister of Burtersett (Lab)
Is the Minister going on to another point? I did ask some specific questions.
Lord Stewart of Dirleton (Con)
I am of course ready to take specific questions that the noble Baroness develops, but it was not my intention to pass by her contribution at this stage.
Baroness Lister of Burtersett (Lab)
Is the Minister going to answer my questions?
Lord Stewart of Dirleton (Con)
My Lords, as I have said several times during this debate, at this and other stages, it is the Government’s assessment that Rwanda, which is a signatory to the United Nations convention against torture, is generally a safe country with respect to the rule of law. The treaty, at Article 15(9), provides that the monitoring committee is to develop a complaints system that can be used by relocated individuals. The committee will be expected to report any significant issues to the joint committee straightaway, and may provide advice and recommendations to the joint committee on actions that should be taken to address issues that have been identified. Any issues escalated will involve reporting directly to the joint committee co-chairs in relation to emergency and urgent situations. We will continue to assess complaints and observations by Redress and the other organisations to which the noble Baroness, and others—the noble Lord, Lord Cashman, made mention of this as well—have referred when they are referred to us.
Lord Purvis of Tweed (LD)
There is no obligation on the monitoring committee to publish its report, so how will we know what they are?
Lord Stewart of Dirleton (Con)
My Lords, as I said to the noble Lord, this matter is to be dealt with in further groupings. In the interests of saving the Committee’s time, I will revert to consideration of the points raised by the noble Baroness, Lady Lister of Burtersett.
The treaty which the United Kingdom has agreed with Rwanda makes express provision for the treatment of relocated individuals, demonstrating the commitment of both parties to upholding fundamental human rights and freedoms without discrimination and in line with both our domestic and international obligations. Rwanda’s obligations under these international agreements are embedded too in its domestic legal provisions.
The High Court found that it was generally safe for individuals relocated under the MEDP to be in Rwanda. In view of its finding on the issue of refoulement, the Supreme Court found it unnecessary to decide the question of whether individuals were generally at risk of ill treatment in Rwanda. The Court of Appeal likewise did not reach a conclusion on this point. This means that the ruling of the High Court on the point of general safety remains undisturbed.
Baroness Lister of Burtersett (Lab)
The amendment has two parts. One was the about treatment of asylum seekers in Rwanda and that there should not be evidence of torture for two years. The other was about asylum seekers who have already suffered torture. I asked a couple of specific questions in relation to them. One was about what investigations the Government have done about the support they can expect in Rwanda. Supporting people who have gone through torture is more than just everyday support. These people have been traumatised. They need help with their mental and physical health. Even in this country, that help is often inadequate, and they have to turn to civil society groups. The point was made the other day that civil society is still quite weak in Rwanda, so I do not know whether there are any organisations that could specifically help torture survivors. I also asked why the Home Office does not routinely collect data about the number of people in detention who have suffered torture, given that the Home Office’s rules say that torture is an example of a vulnerable group that needs special support in detention.
Lord Stewart of Dirleton (Con)
My Lords, I cannot answer the noble Baroness’s question about why those statistics are not kept. My noble friend Lord Sharpe of Epsom tells me that they are not. That may be a matter to be taken back to the Home Office to be given consideration. It would be pointless for me to speculate on the reasons why that should not be.
Baroness Kennedy of The Shaws (Lab)
I have not taken part in this debate—I came in only earlier this afternoon—but on this I have some information. It is that the mental health situation in Rwanda is very poor. The country suffered a genocide, as we all know, some 30 years ago. There is a very high level of mental illness within its population. Apparently 25% of the population have mental health problems or suffer depression or recurring episodes of post-traumatic stress disorder. It is intergenerational, so the next generation also suffers the consequences. There are only 15 psychiatrists in the whole country and very few trained psychologists. We are talking about a very underresourced country when it comes to mental health problems.
Lord Stewart of Dirleton (Con)
My Lords, I am reminded that Article 13 of the treaty makes the specific provision:
“Rwanda shall have regard to information provided”
by the United Kingdom
“about a Relocated Individual relating to any special needs that may arise as a result of their being a victim of modern slavery or human trafficking, and shall take all necessary steps to ensure that these needs are accommodated”.
Baroness Lister of Burtersett (Lab)
I could well have missed it when I read the treaty, but the quotation the Minister has given talked about human trafficking and slavery but not torture. My noble friend has reinforced my fears about what will happen to torture survivors, who will probably have very serious mental health needs, if they are removed to Rwanda, however “safe” it might be.
Lord Stewart of Dirleton (Con)
My Lords, all relocated individuals will receive protection appropriate to them and assistance according to their needs, including, where necessary, referral to specialist services to protect their welfare. Furthermore, it remains possible for an individual to raise a claim that their individual circumstances mean that Rwanda is not a safe country for them. Should such a claim succeed in demonstrating that serious, irreversible harm will result from removal to Rwanda, that removal will not take place. We expect such successful claims to be rare, bearing in mind the safety of Rwanda, which I have already set out in my response.
The United Kingdom and Rwanda will continue to work closely to make this partnership a success. I do not accept that individuals relocated to Rwanda would be at risk of torture or any other form of inhumane or degrading treatment. I assure the Committee that, under this Bill, decision-makers will already be able to consider compelling evidence relating specifically to a person’s individual circumstances. Should someone with particular vulnerability concerns be relocated to Rwanda, safeguarding processes will be in place.
That Rwanda cares deeply about refugees is amply demonstrated by its work with the UNHCR to accommodate some of the most vulnerable populations who have faced trauma, detention and violence. We are confident that those relocated under our partnership would be safe, as per the assurances negotiated in our legally binding treaty. I therefore invite the noble Lord to withdraw his amendment.
Lord Anderson of Ipswich (CB)
My Lords, it was once the practice of our courts to prevent the jury from dining until they had reached their verdict. Rising to my feet on the wrong side of 3.30 pm, it seems that this practice may live on, unreformed, in what we must get used to calling “the court of Parliament”. Your Lordships may feel that they have had enough food for thought in this debate and that it is time for sustenance of a different kind, so I shall be as brief as I can in response.
What a debate it has been—fully up to the standards of its predecessor earlier today. I will pick out a few of the highlights from the Back Benches. We had lessons from the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Hoffmann, on precedent. It seems one has to go back to 1531 to find a precedent for this Bill. The moral I took from his tale was that it ended badly for both the cook and the Act.
We were reminded by the noble Baronesses, Lady Lister and Lady D’Souza, of the astonishing fact that the courts must not consider even a complaint of risk of torture in Rwanda or a country to which Rwanda might send somebody. As the noble Lord, Lord Cashman, and the noble Baroness, Lady Kennedy, reminded us, that is no theoretical possibility. What an illustration it is of the lengths to which this extraordinary provision goes. We also heard a political analysis from the noble and learned Lord, Lord Falconer—I suspect it was very astute, but it is well above my pay grade so I will say nothing more about it. The right reverend Prelates the Bishops of Bristol and Leeds wove together the legal, moral and even philosophical aspects of the issue, as did the noble Lord, Lord Scriven. We are grateful to them for that.
I will single out two speeches, both from the Conservative Benches. The first was from the noble Lord, Lord Clarke of Nottingham. I followed with great care everything the noble Lord said, not just in this debate but in the debates on the Illegal Migration Bill. It seems that he is one of the very few people, either in this House or outside it, who can vocalise the quite understandable unease engendered in fair-minded people in this country by the prospect of immigration generally, and particularly by the prospect of people—as they see it—coming in without respecting the rules. He combines that with an absolute conviction that we need to address that problem without sacrificing our core values. I am so grateful to him, once again, for that extraordinary speech. How on earth did he never become Prime Minister of this country? There will be political historians who know the answer to that.
The speech of the noble Lord, Lord Deben, is the other speech I will single out, because he made the link so persuasively between this Bill and the most insidious of the threats to our democracy: disregard for the truth and subjugation of the truth to political expedience.
As to the Minister’s speech, he made the argument that considering even a claim that someone would be exposed to torture would place, as he put it, excessive demands on the resources of the courts and stand in the way of relocating individuals. With great respect to the Minister, I found that extraordinary coming from the mouth of a lawyer. I have rarely heard such a formulation of the argument for administrative expedience.
He raised Clause 4(1), and I acknowledge that it makes provision for decisions based on “particular individual circumstances”. If you have compelling evidence relating specifically to your individual circumstances, you might receive some consideration, either by the decision-maker or the court. However, as the clause also says, if your ground is that the Republic of Rwanda is not a safe country in general, it does not work. As the noble and learned Lord, Lord Hoffman, reminded me sotto voce during the debate, it is apparently therefore a defence to a claim under Clause 4 that you are about to be exposed to torture, “Oh, don’t worry, plenty of other people will be exposed to torture as well, it’s nothing to do with your own particular individual circumstances—case dismissed”. It is extraordinary.
We should be grateful, I suppose, to hear the Minister say that our amendments and speeches are listened to and that his party does not dictate the reporting of the Sun. I am grateful for both of those things, and we look forward to seeing those welcome words reflected in actions. On that theme, it was good to see the Opposition Front Benches listening intently throughout. I have no doubt that we will be coming back to these issues on Report. It may be that, as the noble Lord, Lord Coaker, said, the Bill will not be blocked, but we have to get it right and we cannot legislate for nonsense.
I say to the Minister that we do not want to boil him alive—although it may sometimes feel a bit like that—but this Bill poisons the springs of our democracy and I very much hope that this Chamber at least of the court of Parliament will continue to say so. However, because it is the convention at this stage, I beg leave to withdraw my amendment.
Lord Scriven
Member’s explanatory statement
This amendment removes the “notwithstanding” provision from Clause 2.
Lord Scriven (LD)
My Lords, I am again a poor substitute for my noble friend Lord German. This group is a suite of amendments that look at disapplication of not just the Human Rights Act but whole swathes of domestic law—I know that the Human Rights Act is domestic law. Some Members of your Lordships’ Committee may contest that, but it is a sovereign Act of this Parliament. We must always remember that it is not something foisted on us by any international body or court.
I will start with what this raft of amendments is about. Let us take a look at the Bill, starting with Clause 2(5), which is a “notwithstanding” clause. In layperson’s terms, it means that if an individual decides that Rwanda is not a safe country in their particular case, a court or tribunal of this country can no longer decide whether Rwanda is a safe country and an individual cannot bring a complaint that they are being removed to Rwanda, or any claim that the Republic of Rwanda will not act in accordance with the Rwanda treaty—not that they will not enforce the treaty. Everything could be in place, but Rwanda will not act in the spirit of the treaty.
Furthermore, the “notwithstanding” clause says that the court can look at any provision made under any immigration Act. Like many other noble Lords, only a few months ago I debated the Illegal Migration Act for hour after hour and was told categorically by the Government Front Bench that it would stop the boats. So here we are, with another piece of legislation, but that piece of legislation cannot be enacted or looked at by the courts or an individual. Neither the Human Rights Act—I know that Clause 3 is about the disapplication of the Human Rights Act—nor
“any other provision or rule of domestic law (including any common law)”
can be used by anybody who has arrived by an illegal route to protect them from being removed from this country to Rwanda, and nor can
“any interpretation of international law by the court or tribunal”.
This clause usurps the role of domestic courts. Let us be clear: the clause is not about international law or treaties. It usurps the role of domestic courts by not permitting them to do their job, tying their hands by not permitting them to apply key elements not just of the Human Rights Act but of any domestic law. Our courts and tribunals would not be able to consider claims about the general safety of Rwanda and grant interim remedies to prevent the Executive acting unlawfully.
More generally, it may be worth thinking about what the Government are scared of. If this treaty deals with every single issue that the Supreme Court said was going to happen, surely the organisation that should judge whether that is the case is the Supreme Court. It should determine whether its judgment and concerns have been addressed. So what are the Government scared of? I ask the Minister very carefully: if the treaty is enacted and all provisions are enshrined in Rwandan law and in the practice of administration in Rwanda, why are the Government scared of putting it before the court to decide whether Rwanda is a safe country? I am not a lawyer, but logic would dictate that that is what should happen: the courts should determine that the Supreme Court’s concerns have been addressed.
This is a very worrying symptom of what I call a creeping executive authoritarianism, or what the father of the noble Viscount, Lord Hailsham, called the “elective dictatorship”. It seems the Government feel that they have no constraint on their processes or decisions and that the legality of their power cannot be challenged in the courts. That is exactly what those clauses do: they take away the rights of individuals to use our domestic law to determine whether they are safe to go to Rwanda.
On the view that this is about the disapplication of only the Human Rights Act, it needs to be absolutely understood by your Lordships’ Committee, and those outside, that this is a complete disapplication of most of the domestic law of this land. That is what is happening when determining whether, in very limited cases, an individual can go before the courts or tribunals.
I know that the noble Lord, Lord Kirkhope of Harrogate, has a quite interesting amendment in this suite on Section 4 of the Human Rights Act and its disapplication. I will listen carefully not just to the noble Lord introducing his amendment but particularly to the Front Bench’s reply to the interesting suggesting within that amendment. I also look forward to hearing what I am sure will be the very interesting thoughts of the noble Viscount, Lord Hailsham, who added his name to the Clause 3 stand part notice. I look forward to all noble Lords’ contributions to the debate on this group.
Let us be clear: this is about not just the disapplication of the Human Rights Act, which is domestic law, but the disapplication of whole rafts of domestic law in the very limited cases where somebody can put their application about the safety of Rwanda before a court or tribunal. I beg to move.
Lord Kirkhope of Harrogate (Con)
My Lords, I will speak to my Amendment 33 to Clause 2. I acknowledge the support of the right reverend Prelate the Bishop of Chelmsford, who is in her place and may well wish to contribute later. The amendment addresses a critical aspect of our commitment to upholding human rights and the rule of law, ensuring that our legislative process remains transparent and, as was referred to recently by my noble friend the Minister, accountable and responsive to judicial declarations of incompatibility under the Human Rights Act 1998.
Before I delve into the specifics, I note that, as I stated at Second Reading, there are many tools available to our Government to alleviate the present pressures on the asylum system, but we need to know which tools to use and how to use them properly. I am pleased to take the opportunity to commend the progress made by the Government in reducing the number of small boats crossing the channel by using return agreements, dealing with backlogs, bilateral co-operation and other measures, including employing more staff and training them to interpret the criteria for granting asylum rather better than has been the position previously.
All these things have been done and are very important, but return agreements dealing with backlogs and bilateral co-operation are important. Of course, there is an issue on the questionable policy of sending asylum seekers to Rwanda for processing and permanent settlement. I am concerned that there is—in some quarters, anyway—some fixation which we are having to deal with in the Bill and in these amendments, a fixation which I think is unnecessary. This amendment seeks to rectify a significant issue that arises if a court declares—I emphasise the word “if”—our legislation incompatible with convention rights, protected by the Human Rights Act 1998.
As it stands, there exists a potential for delay in addressing such declarations, which could undermine the effectiveness of our legal system, and indeed further erode public trust in our commitment to human rights. I hope that what I am going to suggest will be helpful to the Government. It is certainly not an attempt to wreck the Bill or slow it down in any way, but to address this concern, the amendment proposes that a Minister of the Crown should lay before each House of Parliament a statement under specific conditions, which are, first, if
“a court makes a declaration of incompatibility, under section 4 of the Human Rights Act 1998”,
and, secondly, if
“the Minister has not laid a draft remedial order or a remedial order before Parliament, under section 10 of the Human Rights Act 1998”.
This would ensure timely action and prevent unnecessary delays in addressing the human rights concerns that may be raised by the judiciary.
The statement required by the amendment must provide clear reasons for the Minister’s proposed course of action. Specifically, it must address whether Ministers consider there are compelling reasons for proceeding with the policy, should a declaration of incompatibility be issued, and whether they intend to make a remedial order in response to such a declaration. This transparency ensures accountability and allows Parliament, including our own House, to scrutinise the Government’s decision-making process. I know that many noble Lords have raised this as a major concern.
Furthermore, the amendment sets a strict timeline for Ministers to lay the statement before Parliament, requiring it to be done within 28 days of the court’s declaration of incompatibility. Additionally, within three sitting days of laying the statement, a Motion must be moved by a Minister of the Crown for debate in each House. The Motion must require the House to consider the statement laid before Parliament and to indicate whether it agrees with it. This ensures that Parliament promptly considers the Minister’s proposed course of action, provides an opportunity for debate and scrutiny and, importantly, ensures that the voice of Parliament is heard. We have a duty to ensure that Parliament is engaged in such circumstances. In essence, the amendment aims to prevent delay in addressing judicial declarations of incompatibility and promotes a more responsive and accountable legislative process.
This amendment not only strengthens the framework but emphasises the importance of giving Parliament—including our House—a greater role, should the courts offer a declaration of this kind. I hope that it will be considered carefully by my noble and learned friend the Minister, and not rejected out of hand.
Baroness Chakrabarti (Lab)
My Lords, it is a great pleasure to follow the noble Lord, Lord Kirkhope of Harrogate, who was, of course, an Immigration Minister in the Home Office and therefore is not a “lefty lawyer” or someone who would be out to wreck any government legislation in this area. I want to say a little about disapplication of the Human Rights Act in general and a little in support of his amendment and to explain my probing Amendment 36.
In my lifetime, in different decades perhaps, both the main parties in this country have at times been divided on Europe. It is particularly sad that, for the party opposite, divisions over Europe have morphed into divisions over human rights and perhaps even the rule of law. As a self-identifying lefty human rights lawyer, I find that very sad because of the rich Conservative rights and rule of law tradition in this country, which was essential to the settlement that some of us are here to defend.
Viscount Hailsham (Con)
My Lords, I rise to speak briefly to the generality of Clause 3. I signed the notice opposing Clause 3 standing part—not on this occasion, although that may be something to do at a later stage. We need to be cautious about advancing the proposition contained in Clause 3, because it disapplies the provisions of the Human Rights Act in the various respects specified in Clause 3(2). As the noble Lord, Lord Scriven, has rightly reminded your Lordships, this is domestic legislation. It is not legislation imposed on us but legislation that Parliament chose to enact. It is also the cornerstone of the proposition that human rights in this country should be universal in their application.
I regard what we are doing in disapplying serious sections of the human rights legislation in respect of specified groups in the community as deeply dangerous. It is a precedent which we should not formulate. At Second Reading, I took the liberty of reminding your Lordships of what Pastor Niemöller said about not crying out in opposition when bad things were being done. We are being asked to stand on a very slippery slope, and very slippery slopes lead very often to very dirty waters. We should not embark on this exercise.
That is not just my view but the view of, for example, the Constitution Committee. I commend to your Lordships paragraphs 27 to 31 of the report that was published on 9 February. I also commend to your Lordships the views of the Joint Committee on Human Rights, which were published on 12 February. Paragraph 95 and conclusion 7 are extremely critical of the Bill.
I turn directly to my noble friends on the Front Bench. I do not blame them personally for what is happening. My noble friend Lord Deben and I were Ministers for many years at all levels. I know perfectly well that my noble friends will communicate our views to their departments, but I also know that they do not determine policy and it is not their fault. However, the overriding conclusion that I have come to from this whole debate is that this Government intend to railroad this Bill through without challenge.
It is on that point that I would like my noble friends to communicate another message to the Government. People such as me are Conservatives. We will always be Conservatives. Yet we are deeply troubled, deeply distressed, by how this Government are operating. It is manifest in many ways in this Bill. We are disregarding the rule of law. We are ignoring the principles of the separation of power. We are disapplying protection given to minorities. We are becoming immoderate in our tone. We have abandoned pragmatism in the conduct of policy. I know why they are doing that. They suppose that they can win the election by dog-whistle policy, but they cannot. The outcome of the election is probably already determined by circumstance and by Mr Johnson and by Liz Truss and various other things that have already happened and which the public are probably not going to forgive the Government for. You cannot solve that problem by dog-whistle policies, but you can deepen the rift between the electorate and us.
I am a great admirer of Matthew Parris, one of my oldest friends. His articles, which he writes regularly, tell one what moderate conservatism should be about. At this stage in government, we need to show that we can reinstate the traditional values of conservatism. That will not save us at the general election, but it will make recovery a lot easier.
Baroness Lister of Burtersett (Lab)
My Lords, it is a privilege to follow the noble Viscount—probably inadequately. I added my name to the clause stand-part notice because, as I made clear at Second Reading, I am dismayed by Clause 3’s disapplication of parts of the Human Rights Act. I support everything that has already been said by various noble Lords.
The main concern raised by bodies such as the Equality and Human Rights Commission, the Northern Ireland Human Rights Commission, the Law Society and the JCHR, on a majority, together with more than 250 civil society organisations, is that, in the words of the EHRC, this
“undermines the fundamental principle of the universality of human rights”
and
“damages the UK’s human rights legal framework”.
One of the main voices, a group of asylum seekers and refugees, some of whom are from Rwanda, have said how painful they have found the idea of a two-tier human rights system and the loss of what they rightly see as a legal right to seek protection.
Not only is this becoming a habit on the part of the Government, as my noble friend Lady Chakrabarti has pointed out, but the JCHR report, on a majority, cites as particularly alarming the disapplication, for the first time ever, of Section 6 of the HRA. It warns that this
“would effectively grant public authorities statutory permission to act in a manner that is incompatible with human rights standards”.
As such,
“it is very hard to see how it could be consistent with a commitment to complying with international law”.
As has already been pointed out, the Constitution Committee comments that disapplication—
Lord Murray of Blidworth (Con)
The noble Baroness appears to suggest that, because the Bill disapplies Section 6, local authorities would be obliged to act or could act in a manner that was unlawful. She ignores the fact that, from the British accession to the European Convention on Human Rights until 1998, our domestic bodies were still deemed to be a part of the United Kingdom state, which obviously had an international obligation to comply with the rights convention. All the provision of Section 6 did was to impose a domestic law obligation. Its removal in this context does not have the effect that the noble Baroness seeks to persuade your Lordships it does.
Baroness Lister of Burtersett (Lab)
I am sorry, but I was only quoting—I know it was a majority vote and that the noble Lord did not vote for this bit—from the Joint Committee on Human Rights report, which still stands, even though it was a majority vote for that particular paragraph. Perhaps I will leave it to the lawyers, if I have not quite got the legal point.
The Constitution Committee comments that disapplication of HRA provisions is of “considerable constitutional concern”, and invites us to
“consider the potential consequences of undermining the universal application of human rights”.
The UNHCR expresses its deep concern at the exclusion of asylum seekers from some of the human rights protections, not only because it
“undermines the universality of human rights”
but because of its
“implications for the rule of law both domestically and internationally”,
setting
“an acutely troubling precedent”.
Universality means all humans, regardless of their immigration status. In the words of the Universal Declaration of Human Rights, universality principles stem from recognition of the
“inherent dignity and of the equal and inalienable rights of all members”—
all members—
“of the human family”.
As I said at Second Reading, breaching this principle speaks volumes as to how the Government see asylum seekers, for they are, in effect, being treated as less than human.
I make no apology for repeating these points from Second Reading, because even though a number of noble Lords raised their disquiet about the disapplication of the Human Rights Act, the Minister, the noble Lord, Lord Sharpe, did not address our concerns in his closing speech or his subsequent letter to Peers.
The closest the Minister came in the debate was perhaps to do so implicitly, when he dismissed in a peremptory manner the advice of the Northern Ireland Human Rights Commission, which was established under the Northern Ireland Act 1998 to
“review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights”.
When challenged by the noble Baroness, Lady O’Loan, who is no longer in her place, as to whether he had actually read the commission’s advice, he responded that
“the Government take a different view to those opinions”.—[Official Report, 29/1/24; col. 1099.]
The commission’s opinion, which is perhaps better described as formal advice, concludes that the Bill
“does not consider the Belfast (Good Friday) Agreement, and the integral role of both the Human Rights Act and ECHR in the complex fabric of the NI Peace Process and devolution”.
Indeed, it warns that it
“appears to be incompatible with obligations under the … Agreement”.
That position is echoed by the Human Rights Consortium in Northern Ireland. In its view, these proposals
“represent a violation of the Belfast/Good Friday Agreement by effectively limiting access to the Human Rights Act … for those seeking refuge in Northern Ireland. They also represent a violation of the Article 2 commitments of the Windsor Framework by undermining the commitment to the non-diminution of rights contained within the ‘Rights, Safeguards and Equality of Opportunity’ section of the Belfast/Good Friday Agreement—a section which explicitly guaranteed our access to the rights protected in the Human Rights Act”.
The JCHR saw these concerns as “serious” and, by a majority, reported that
“The Government has not adequately explained why it considers those concerns are not merited”.
It therefore asks for
“a full explanation of why it”—
the Government—
“considers the Bill to be consistent with the Windsor Framework and Good Friday Agreement before … . Report stage”.
I am not quite sure which Minister will be responding, but will the noble and learned Lord undertake to provide such an explanation? Can he please explain why we should put more faith in the Government’s interpretation of the implications for the Belfast/Good Friday agreement than those of both official and unofficial human rights watchdogs in Northern Ireland? That is all the more so given the Constitution Committee’s invitation to us
“to pay particular attention to the constitutional consequences … for the Good Friday Agreement”,
and the questions that it raises about the compatibility of Clause 3 with ECHR rights. I know that the question of Northern Ireland came up late on Monday, but it was from a rather different perspective.
Finally, more generally, can the Minister tell us what he thinks the universality of human rights actually means? What is the Government’s justification for breaching this fundamental tenet of human rights?
The Lord Bishop of Chelmsford
My Lords, I support Amendment 33 from the noble Lord, Lord Kirkhope of Harrogate, to which I am a signatory. I am grateful to the noble Lord for the amendment and I welcome the opportunity to discuss the role of Parliament if a higher court were to declare this legislation to be incompatible with the convention right, or indeed a number of rights.
We should not forget that the Government have been unable to make a statement in the Bill that it is compatible with convention rights. As the Government nevertheless wish Parliament to proceed with the Bill, it seems prudent to probe what the role of Parliament would be in determining how any potential incompatibility should be addressed. In fact, the Attorney-General has said in the Government’s own legal position paper that it should be for Parliament to address any determination of incompatibility by the courts. The noble Lord, Lord Kirkhope, has eloquently set out the motivation for this amendment, and I agree that what it does is simply to expound what parliamentary sovereignty would look like in this context.
I appreciate that the Government believe that there is no basis for a declaration of incompatibility, and that therefore Section 4 of the Human Rights Act has not been disapplied. However, if Parliament proceeds to pass the Bill on the basis of this view, but the domestic courts declare otherwise, can the Minister say what objection there can be for giving Parliament a clear opportunity to revisit this issue? Surely the Government and Members across all Benches agree that parliamentary sovereignty includes the legislative function’s ability to oversee the executive function. As the legal position paper reads:
“The principle that Parliament should be able to address any determination by the courts of incompatibility, rather than primary legislation being quashed by the courts, is part of the fundamental basis of Parliamentary sovereignty”.
The Human Rights Act does not compel the Government or Parliament to remedy an incompatibility, but Parliament must be able to take steps to do so. It is not unreasonable to expect Ministers to explain—and to explain without delay—why they may not be bringing forward a remedial order. If the Minister disagrees with this supposition, can I ask him to please make clear the Government’s position?
Your Lordships will know that we have spoken with one voice on these Benches, as we believe that the Rwandan partnership agreement is an abdication of both our legal and our moral responsibility to refugees seeking sanctuary here in the UK. It is highly disturbing that this Bill implies that human rights are somewhat discretionary, somehow no longer universal, and that they can be disapplied for those reasons outlined in domestic law.
The fundamental truth that I believe in is that every person is equally deserving of rights, as every person is equally made in the image of God. However, this is not just a theological statement but also an indisputable legal principle that underpins our international human rights framework: that all are equal before the law. Noble Lords will know that I am not a lawyer, but this point was very well made by the noble Baroness, Lady Chakrabarti. She made it powerfully, better than I could do. Removing asylum seekers from certain protections enshrined by the Human Rights Act severely undermines the universality of human rights and our collective access to justice. As the refugee convention states, protection is not a simple concession made to the refugee; he is not an object of assistance but rather a subject of rights and duties.
Human rights are not an opt-in or opt-out concept, and Section 4 of the Human Rights Act gives the courts the opportunity to remind us of that. This is surely central to the UK’s commitment to the rule of law. Parliament has the right to create law, but our authority cannot extend to creating injustices. Parliament therefore may need to ask whether we should maintain parliamentary consent if the Bill is found to not afford adequate protection of fundamental human rights, and Amendment 33 facilitates this. It is a perilous time for the protection of human rights across the globe, and the UK’s contribution should not be to diminish their value or put them further out of reach for some of the world’s most vulnerable people. I hope and pray, therefore, that we have the chance to revisit the proposals in the Bill.
Lord Carlile of Berriew (CB)
My Lords, I shall speak in qualified support of Amendment 33, but before I do so I should say that it is a pleasure to follow the right reverend Prelate. Outside this House as well as within the House, I have heard her deploying her calm, compelling advice on a range of subjects connected with refugees and asylum seekers, and she has done so with her usual skill this evening.
Before I get to Amendment 33, however, I need to make two apologies and I hope the court will bear with me. The first is for my absence from the Committee until I arrived back this afternoon. My second apology is that right at the end of the debate at Second Reading, I made a factual error, for which I take full responsibility, although the advice came from elsewhere, when I said that homosexual acts were still illegal in Rwanda. I am glad to say that homosexual acts are not illegal in Rwanda: I was wrong. Having said that, the evidence of how homosexual acts are seen by society in Rwanda is now well behind the law that the Government there have introduced.
I turn to Amendment 33. We heard earlier from the noble and learned Lord, Lord Stewart, about the importance of Parliament as a court. Yes, the lawyers are more familiar than others with the expression “the high court of Parliament”. It is a nice conceit that Parliament likes to deploy from time to time, but it does not actually add up to a statement of fact. Let us just think about how courts operate. I am concerned to some extent about the abstraction of our debates on the subjects we are discussing at the moment. Let us consider what actually happens when a lawyer—say me or one of a number of my noble friends and colleagues around the House—has a client, in a room which they have entered extremely nervously, or in a very unpleasant surrounding in a place of detention, who has a very serious problem on which their whole future depends, whether it is a very long prison sentence, the break-up of the family or being sent to a faraway country where they never intended to go.
What we as lawyers do is, first, to analyse the complaint that is made. Secondly, we give an opinion as to whether there is an injustice. I hope that we are always frank; we sometimes have to be cruel to be kind in telling the truth. But if there is an injustice then we explain that the golden thread of English law actually has a number of strands. Yes, one is the jury system— I heard that replayed on the radio today—but another is that if there is a wrong, there is a remedy for it. It may be difficult to achieve a remedy for the wrong but there is a remedy and a procedure, and that procedure can be taken to a court.
Baroness Chakrabarti (Lab)
Does the noble Lord share the concern, that I and various committees of your Lordships’ House have, that the declaration of incompatibility, by itself and without the other remedies and provisions of the Human Rights Act, is not an effective remedy for convention rights? That is the first part of my concern.
The second part is more political: if, because of this Act, the only legal court, as opposed to metaphorical court, that still has jurisdiction to look at the safety of Rwanda—for example, for torture victims—is the European Court of Human Rights in Strasbourg, the Prime Minister will have turned courts into foreign courts. The collision course between the UK and the Strasbourg court will be determined.
Lord Carlile of Berriew (CB)
On the noble Baroness’s first question, I agree with the sentiments that she expressed earlier.
I will answer her second question slightly differently: I am puzzled by the hostility that some in the governing party show to the European Court of Human Rights. My understanding is that, on a weekly if not monthly basis, our Government call the European Convention on Human Rights into use to justify government arguments in individual cases. I do not understand that the Government are saying that they do not want to use the convention to their advantage anymore; it is done on a very selective basis for a small number of cases, and generally against the justice of those cases.
Baroness Kennedy of The Shaws (Lab)
My Lords, all of us lawyers can tell war stories about cases that we have been involved in or that we remember, but the first test of the declaration of incompatibility happened after the introduction of the Human Rights Act, when 9/11 had happened and we too were concerned with national security. We entered into a process of arresting people—detention without trial. It was a shameful thing at that time, and the case worked its way through the courts, which said that this is not compatible not only with our respect for due process and the rule of law but with the human rights protections under our new legislation. The Supreme Court—actually it was the committee of the House of Lords at that time—in the case of A and others v Secretary of State decided that this was indeed in contravention of the Human Rights Act. It spoke about how foreign nationals in particular were being gathered together in detention. There were issues about creating hierarchies and about detention without due process. As a result, a declaration of incompatibility was made.
It is important for people to know that what happened then was that the Government of the day—it happened to be a Labour Government—respected the court’s decision. That is the concern of some of us now: there seems to be less respect for court decisions. That worries us. In the ordinary way, if our Supreme Court were to make a declaration of incompatibility, one would expect a Government to do as the Labour Government did at that time, which was to look for ways in which they could introduce law that was not discriminatory to those to whom it applied and that introduced a certain level of oversight and due process. Nobody would know that better than my colleagues on the Cross Benches who, as lawyers then, sat in special capacities to oversee that sort of legislation.
It was a very interesting moment, because it was about declarations of incompatibility and how Governments should respect courts that are saying, “This is incompatible”. It concerns us that there seems to be a rising level of disrespect for the rule of law—it is happening not just in this country but elsewhere—but we should be better than other places, because that is deeply embedded in our tradition and is so important to us.
In answer to what was said by the noble Lord, Lord Murray, that somehow the European Convention on Human Rights was invoked even before the Human Rights Act, in fact it took six years to take cases from start to finish to get to the European court on matters, and that is not what we wanted. That is what the Human Rights Act was all about: bringing human rights home. That is what it did, and it is something that we should all be proud of.
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.
The Lord Bishop of St Edmundsbury and Ipswich
My Lords, it is a pleasure to follow the noble Lord from Suffolk. The most reverend Primate the Archbishop of Canterbury regrets that he cannot be in his place to speak to Amendment 36, tabled in the name of the noble Baroness who has just briefly left, and to which he has added his name. I will speak briefly and again repeat the moral point.
The amendment leaves out Clause 3, where the Bill disapplies large chunks of the Human Rights Act and replaces it instead with one very limited disapplication of the Act to allow the Secretary of State to lay positive UNHCR advice before Parliament. This seems a necessary corrective to the wider issues in the Bill and supports the other amendments tabled by the noble Baroness, Lady Chakrabarti, to Clause 1 of the Bill, to give the UNHCR a role in providing positive advice on the safety of Rwanda before any asylum seekers can be sent there.
As my right reverend friend the Bishop of London said at Second Reading, in this Bill the Government are effectively deciding to whom human rights apply and to whom they do not—and specifically that certain rights do not apply to asylum seekers. As she asked, has history not taught us the risk of this? It undermines the basis on which human rights are made: the principle of universality. At the heart of the faith that I espouse is a belief in the precious value of every human being, asylum seekers included. Clause 3 of this Bill, and the Bill as a whole, which I described at Second Reading as “immoral”, risks placing less value on some human beings than on others—and, as the noble Viscount, Lord Hailsham, said, that is a very slippery slope indeed.
Lord Kerr of Kinlochard (CB)
My Lords, I am absolutely not entitled to speak on the Human Rights Act, but I found that the arguments advanced by the noble Lord, Lord Kirkhope, rather convincing and attractive. The House should remember that the noble Lord knows whereof he speaks—he served in the Home Office with the relevant portfolio.
I want to put in a little word for the outside world. My name is on Amendment 31, which was so well moved by the noble Lord, Lord Scriven. The reason I was attracted to his amendment was not so much because the notwithstanding clause covers the Human Rights Act but because it also covers any interpretation of international law by a court or tribunal. Of course, we have international law defined in this Bill as
“the Human Rights Convention … the Refugee Convention … the International Covenant on Civil and Political Rights … the United Nations Convention against Torture … the Convention on Action against Trafficking … customary international law, and … any other international law, or convention or rule of international law, whatsoever, including any order, judgment, decision or measure of the European Court of Human Rights”—
a fairly wide definition.
Prohibiting the use of any arguments derived from international law as a way of trying to override the ruling—which all decision-makers, including Ministers, immigration officers, tribunals and courts, must abide by—that Rwanda is a safe country is a fairly major thing to do.
The legal adviser to the Foreign Secretary is probably the most important official in the Foreign Office—certainly more important than the Permanent Secretary—because they have the task of trying to ensure that what this country does and how it does it remains within international law. Sometimes that brings them into conflict with the Permanent Secretary, who dreams up all sorts of wheezes that the legal adviser rules out, and the Foreign Secretary automatically goes with the legal adviser.
I am talking not just of Foreign Secretaries such as Geoffrey Howe who knew their law, but Foreign Secretaries in general. Down the years, Foreign Secretaries in this country have tended to believe that respect for the international rule of law was in the UK’s interest. The idea that one can pick and choose, dine à la carte and say “Well, we’re not going to apply that bit” is extraordinarily dangerous. The habit could catch on. We have heard already in this debate how the Prime Minister of Pakistan has noticed what we are up to in this Bill and is using it as a justification for sending Afghans fleeing the Taliban back to Afghanistan. We are setting a very dangerous precedent.
Mrs Thatcher has been referred to. Whatever arguments officials such as myself put to her, she would always say “Well, we need to stick within the law”. When we lost cases, she would say, “We can appeal if you think we have a chance, but we must respect the outcome if we lose”. As we have this debate and watch the travails in the Conservative Party, hearing moving speeches such as those from the noble Viscount, Lord Hailsham, and the noble Lord, Lord Deben, there is a missed procession watching us: the Carringtons, the Douglas-Homes, the Howes—and I do wish Douglas Hurd could be with us. None of these people would have allowed a Government in which they had the privilege of serving to put forward a Bill which decided that international law could be set aside.
Baroness Lawlor (Con)
My Lords, I have found this group of amendments very interesting and I am grateful to the noble Lord, Lord Kirkhope, for introducing it. But there has been a liberal use of certain concepts in the debate that I would like to comment on. We have heard a great deal about parliamentary sovereignty and history, including the history of the party on whose Benches I have the honour to sit.
The Conservative Party is a very broad church; it is no more the party of my noble friend Lord Hailsham than the great party opposite is the party of Mr Corbyn. These are great parties because, from time to time, they catch the hem of history as she passes by. On this occasion, I suggest that it is well worth listening to the Front Bench of this party, with its great electoral mandate, to do what is necessary to control these borders. I have no doubt that the party opposite will catch that hem sometime, but on this matter it is with our Front Bench.
Lord Anderson of Ipswich (CB)
My Lords, I am afraid that this will be a more prosaic and lawyerly contribution than the two we have just heard, but at least I will keep it short. When I first read the title of Clause 3, I did not appreciate quite how radical and unprecedented it is. I thought it right to bring that to the attention of the Committee, because I sit on the Constitution Committee with the noble and learned Lord, Lord Falconer, and others, and it certainly preoccupied us there. It is true that the Government have recently acquired what has been called a habit of seeking to disapply the strong duty of interpretation in Section 3 of the Human Rights Act. We saw that in the Illegal Migration Act 2023 and we see it in the Victims and Prisoners Bill. Had Mr Raab’s Bill of Rights Bill been brought forward, we would have seen a general disapplication of Section 3 across the board.
When we came to look at this in the Constitution Committee, we noticed the ways in which Clause 3 goes beyond even these precedents. It disapplies Section 3 but also Section 2 and Sections 6 to 9; I believe I am right in saying that neither of those things has ever been done before. Furthermore, those novel disapplications apply more widely than just to this Bill. Clause 3(3) states that Section 2 does not apply to Rwanda safe country determinations
“under any provision of, or made under, the Immigration Acts”.
Thirteen such Acts are listed by the Constitution Committee in a footnote. Clause 3(5) clarifies that Sections 6 to 9 of the Human Rights Act do not apply to sections of the Illegal Migration Act 2023 in relation to the assessment of whether removal to Rwanda could give rise to serious and irreversible harm.
Of course, the noble Lord, Lord Murray, is right that there was a world before the Human Rights Act—a less satisfactory world, I would say, in terms of human rights protection. What all this means in practice is that decision-makers and courts making decisions in relation to the safety of Rwanda, save in an application for a declaration of incompatibility, are instructed to ignore what the ECHR has to say about one of the most important of human rights, perhaps the most important of all—the right not to be subject to torture or inhuman and degrading treatment—and to ignore it, furthermore, in relation to one group only: the particularly vulnerable group of asylum seekers. That puts added weight on Strasbourg, as the noble Baroness, Lady Kennedy, said, as a backstop. That backstop is itself weakened, as we will see when we come on to Clause 5.
As a unanimous Constitution Committee said in our usual moderate terms:
“This is of considerable constitutional concern”—
I pause to note that the four Conservative members of that committee signed up to that formulation. We also invited the House
“to consider the potential consequences of undermining the universal application of human rights”.
For my part, I consider that this is an unhappy and dangerous road to go down.
Lord Tugendhat (Con)
My Lords, I will briefly address the point raised by my noble friend Lady Lawlor. The Conservative Party is a great historic party, and there is a lot to be said for drawing on the wisdom of ages. What my noble friend Lord Deben said a few minutes ago about Mrs Thatcher’s attitude, Douglas Hurd’s attitude and so forth is something we ought to consider. They were important figures in our history; they contributed a great deal to the country as well as the party.
If one goes back further, one of the progenitors of the European Convention on Human Rights was of course David Maxwell Fyfe, Lord Kilmuir, one of our Lord Chancellors. He was working under the supervision of Winston Churchill, who regarded the European Convention on Human Rights as a great achievement. Now, my noble friend Lady Lawlor may feel that our present Front Bench understands the world better than Winston Churchill or Mrs Thatcher. Perhaps it does; I am not sure.
Lord Tugendhat (Con)
Let me finish. It is also finally worth remembering that the one Conservative Prime Minister since the war who did not have the same respect for the rule of law and international law as the people I have mentioned was Anthony Eden. He does not stand as high in the historic record as Churchill or Thatcher.
Baroness Lawlor (Con)
My Lords, I thank my noble friend for saying I could hold on. My remarks were related to what was being debated at that point. In respect of Sir Winston Churchill, about whom I have written— I agree with my noble friend’s very sensible assessment of him—he was dealing with another world. Mrs Thatcher was dealing with another world. I am not saying, with respect to the law, that her views were any different from those of the Front Bench we have. Our Front Bench is seeking to address the problems that have so exercised the electorate of this country, from whom the authority of Parliament is derived. For this reason, we must think of the new circumstances that have arisen, which we as a country have entrusted to this Parliament and this Government.
Lord Kerr of Kinlochard (CB)
I understand the point the noble Baroness is making; it is a very valid point. But what deduction should one draw? One of the tasks of the legal advisers in the Foreign Office is to lead on the development of international law. I do not argue that international law is set for all time, fossilised and ossified. Where are the proposals from the noble Baroness and her friends for the future development of international law? Why does she simply say that we must pull out of the bits we do not like? Where are the ideas for reforming and advancing? That is where the hem of history is going.
Lord Murray of Blidworth (Con)
My Lords, tempted though I am to engage with the noble Lord, Lord Kerr, on that very interesting philosophical question, that might be beyond the ambit of this particular amendment.
I will speak in particular to Amendment 33, which I oppose because it has no purpose. I remind the Committee that Section 4 of the Human Rights Act provides to the courts, at High Court level and above, a power to make a declaration of incompatibility, but the section itself is clear. Section 4(6) of that Act sets out in crystal clear terms:
“A declaration under this section (‘a declaration of incompatibility’) … does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and … is not binding on the parties to the proceedings in which it is made”.
In those circumstances, the noble Baroness, Lady Chakrabarti, said that this amendment is required to preserve some sort of responsibility belonging to this Parliament. That seems to be a misreading of Section 10 of the Human Rights Act, which provides a power to take remedial action. The important part in Section 10(2) says:
“If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility”.
It is therefore clear that, if there is a declaration of incompatibility, the default setting is that the law continues as passed by this Parliament. Therefore, there is no need for the amendment proposed by my noble friend Lord Kirkhope because it is clear that, if no remedial order is laid, the law remains as it is.
Lord Murray of Blidworth (Con)
I will give way to the noble Baroness, Lady Chakrabarti, in a second. The very idea that, in some way, the argument would be better achieved by accelerating the process is simply mistaken, not least because Section 10 says that the declaration of incompatibility can take effect only following the conclusion of the final appeal and confirmation by the parties that that is so. That is likely to be a long time afterwards, given the nature of the types of cases that tend to go to appellate courts. So there is no need for Amendment 33. I give way.
Baroness Chakrabarti (Lab)
I am grateful to the noble Lord for giving way. I am intervening because he referred to something I said. Let me be clear: I totally agree with his analysis that Section 4 declarations of incompatibility have no binding legal effect; I think that I said so and emphasised that in my remarks. I referred to that as part of the exquisite constitutional compromise between parliamentary sovereignty, on the one hand, and the rule of the law, on the other, that is the Human Rights Act’s scheme.
I am delighted that the noble Lord, Lord Murray of Blidworth, knows the scheme so well and is seeking to honour it so well. In fact, when he reads from Sections 4 and 10, he treats them as sacrosanct—something that the Government do not generally do in relation to the Bill. If it is okay for the Government to disapply reams of the Human Rights Act for the purposes of sending some of the most vulnerable people in our territories to Rwanda, why should his noble friend—the noble Lord, Lord Kirkhope—not be able to improve on the Human Rights Act too, by accelerating the procedure for bringing a declaration to Parliament, rather than to the Government, for consideration?
Lord Murray of Blidworth (Con)
I find it a little odd for the noble Baroness to say that she is criticising the Government for disapplying various provisions of the Human Rights Act, yet criticising us for not, as it were, expressly disapplying Section 4. As we have heard, the reason for not disapplying Section 4 is clear; namely, it demonstrates that the Government are complying with their obligations on the international plane to provide a right of a remedy under Article 13 of the treaty.
Lord Kirkhope of Harrogate (Con)
I am sorry, but as I listened to the noble Lord, I was getting the impression that he was agreeing with my amendment to a large extent, except perhaps for my suggestions that we move the process on a bit more and improve the accountability with this House. Is that not the case? He said that my amendment serves no purpose; I think that it serves a very valuable and important purpose to give reassurance to this House that Parliament will have some say on, and be involved in, these processes; otherwise, I think that he is trying to minimise the impact of these matters and the way in which we can look at them.
Lord Murray of Blidworth (Con)
I am afraid that the amendment still has no purpose. The point is, as I hope I demonstrated to your Lordships’ Committee, that the decision as to whether and how to act on a declaration of incompatibility is clearly set out in the Human Rights Act, and it rests with a Minister of the Crown. This Parliament does not have a role other than to consider, under the procedure for a remedial order, whether a decision is taken to lay one. That is the law as it stands and as it should be, so this amendment is unnecessary.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this group of amendments focuses on Clause 3 and demonstrates the threat to the domestic rule of law posed by the Bill. The Bill proposes ripping up not only our international obligations but our existing domestic legal structure, and it sets a dangerous precedent. It is clear that, when taken in combination with the serious limitations put on our own courts to decide what is and is not true, the Bill shows no respect for our domestic structures. I ask again: what are we getting in return? Do the Government really believe that delivering this scheme as it is currently proposed is worth it?
The noble Lord, Lord Scriven, moved the first amendment in this group, and he said, quite rightly, that the Bill usurps the role of the domestic courts and disapplies the Human Rights Act. He emphasised that the domestic courts are usurped within the Bill.
There has been a lot of discussion about Amendment 33 from the noble Lord, Lord Kirkhope, and there was some legal discussion just now between noble Lords about the best way that that amendment can prevent delay in considering making a remedial order. I will not comment further on that because it is above my pay grade as a magistrate rather than a lawyer who deals in this type of law.
More widely, there were very wide-ranging comments on the law, the theological principles underlying the Human Rights Act itself, and the principle of treating everybody equally, and an almost theological debate about whether this is a properly Conservative Bill. I am reluctant to trespass on theological or Conservative Party debates but, from the Opposition’s point of view, this group and the disapplication of a number of elements within the Human Rights Act go to the core of the objections to the Bill. I am sure we will come back to this in some form at a later stage. I look forward to the Minister’s response.
Lord Stewart of Dirleton (Con)
My Lords, as always, I am grateful to noble Lords who contributed to the debate on this group and added their wisdom to the Committee’s deliberations in relation thereto.
Clause 3 disapplies in particular circumstances certain provisions of the Human Rights Act 1998, specifically Sections 2, 3 and 6 to 9. I state and emphasise at the outset that we do not strip human rights from anybody by this means. It is
“a fundamental tenet of modern human rights that they are universal and indivisible”—
I happily associate myself with the views of the noble Baroness, Lady Chakrabarti, and the right reverend Prelate the Bishop of Chelmsford in that regard—
“this is reflected in, amongst many other things, Article 2 of the Universal Declaration of Human Rights, Article 2 of the International Covenant on Civil and Political Rights, and Articles 1 and 14 of the ECHR.
But it is legitimate to treat people differently in different circumstances: to take just two examples, a citizen may legitimately be treated differently, and have different legal rights, from a non-national; and a person in detention may have certain rights restricted when compared to a person at liberty. The ECHR, as interpreted by the case law of the ECtHR, fully recognises this principle. Rights are therefore universal, but what rights may mean for different people may legitimately differ depending on the circumstances, so long as any difference in treatment is justifiable within the framework of the relevant right. Therefore, everybody holds their rights without distinction on any ground; but the extent to which those rights may be limited, restricted, interfered with, or indeed vindicated, depends on each individual’s circumstances, and the legitimacy of the limitation, restriction, interference, etc.
To be clear, there is nothing in the Safety of Rwanda (Asylum and Immigration) Bill that deprives any person of any of their human rights: in accordance with Article 1 of the ECHR, we shall continue to secure to everyone within our jurisdiction the rights and freedoms defined in the Convention. What we can legitimately do, and what we are doing, is to draw legal distinctions between those with a legitimate right to be in this country, and those who have come to this country illegally”.
I have just quoted ad longum—extensively—the submission of the Lord Chancellor to the Joint Committee on Human Rights last year.
Baroness Chakrabarti (Lab)
The noble and learned Lord’s noble friend is just trying to speed up parliamentary consideration after a declaration of incompatibility. As the nature of the noble and learned Lord’s argument throughout the Committee has been about parliamentary sovereignty, not executive diktat—“we do not need the courts”—what would be wrong with the idea that Parliament should be seized of these issues a little quicker than usual?
Lord Stewart of Dirleton (Con)
Given how well the declaration of compatibility procedure is working and has worked in the past, there is no reason to innovate on that basis.
As the Minister of State for Illegal Migration set out in the other place, the United Kingdom has a long-standing tradition of ensuring that rights and liberties are protected domestically and that we are fulfilling our international human rights obligations. We remain committed to that position and will ensure that our laws continue to be fit for purpose and work for the people of the United Kingdom.
The noble Lord, Lord Kerr of Kinlochard, raised the matter of refoulement, the sending back of people to dangerous places from whence they came. I refer again to the debate of Monday night about the extent of the treaty. Although some of the provisions in the Bill are novel, the Government are satisfied that it can be implemented in line with convention rights. We know that people will seek to frustrate their removal from this country, and the Bill prevents the misuse of the courts to that effect. As such, I invite the noble Lord to withdraw his amendment.
Baroness Lister of Burtersett (Lab)
My Lords, I am sorry to prolong matters, but I asked an explicit question about Northern Ireland. I pointed out that the Bill applies to the whole of the United Kingdom. The Joint Committee on Human Rights, by majority, asked for an explanation before Report of why the Government do not accept the advice of Northern Ireland’s watchdogs —its Human Rights Commission in particular—on incompatibility with the Good Friday agreement and Windsor Framework. If he cannot provide an explanation, can I please get confirmation that we will get that explanation before Report?
Lord Stewart of Dirleton (Con)
I beg the noble Baroness’s pardon for seeming to ignore her contribution. I was at fault. I touched on the Northern Ireland situation in answering Amendment 80 tabled by the noble Lord, Lord Dodds of Duncairn, on Monday night. That is to be found in the relevant Hansard at col. 120. As I said to the noble Lord, and to the noble Lord, Lord Anderson of Ipswich, I am reluctant to step outwith the responsibilities of my department in relation to Northern Ireland matters, which may have certain aspects with which I am not readily familiar. To that extent, if the noble Baroness is content, I will write to her, making sure that the answers reflect the specific questions that she has posed in debates to your Lordships’ Committee.
Lord Scriven (LD)
My Lords, I thank the Minister for his responses, which are always courteous and detailed. However, I probably speak for many noble Lords when I say that he is dancing on the head of a pin that is getting smaller and smaller as Committee goes on. He is going to fall off it if he is not careful about the technical dancing that he is doing on the issue of human rights.
I thank every noble Lord who has taken part in this interesting debate, which has ranged from very technical legal issues about the application of human rights through to the future direction of the Conservative Party. That is not for me to encroach on, although I particularly warmed to the speech of the noble Lord, Lord Deben, and the approach of the noble Viscount, Lord Hailsham, about not only what it means to be a Conservative but the fundamental bedrocks of what it means to be British.
I thank the noble Lord, Lord Kirkhope of Harrogate. Not only is Harrogate a wonderful place but it is a place where a good compromise could come out. I support what the noble Baroness, Lady Chakrabarti, says—the amendment is not a wrecking amendment but a serious attempt to improve a fundamentally flawed Bill and for it to protect people.
All noble Lords who have taken part in this debate have coalesced around a couple of things. One is that you cannot tinker with the universality of human rights. Once you tinker, they go. They are applicable to everybody. The Minister gave it a good go about why the Government were not tinkering, but clearly they are. I say to the Government Front Bench that chasing short-term headlines will have significant and serious consequences for people’s rights in this country, way beyond those people who arrive on these shores by irregular routes. That is the fundamental issue that many noble Lords feel uncomfortable with.
The Minister said that this is a novel Bill. To try therefore to put in novel administrative procedures to fill the gaps that the Bill is creating in terms of the separation of powers and the rule of law will not work. I am sure that many noble Lords will come back to these issues on Report because, like me, they feel that the Government Front Bench has not answered very fundamental concerns which still exist. Having said that, I beg leave to withdraw my amendment.
Lord Scriven
“Applicability of decisionsA decision-maker must not make a decision relating to the removal to the Republic of Rwanda of a person who arrived in the United Kingdom before this Act has received Royal Assent.”Member's explanatory statement
This amendment and the amendment to Clause 9, page 7, line 1 in the name of Lord German, seeks to ensure that the Act does not apply retrospectively.
Lord Scriven (LD)
My Lords, because of the lateness of the hour, I will speak to this suite of important amendments quite quickly, because I am sure that other noble Lords want to listen to some of the expanding debate. The amendments are about the reporting, commencement and costing of the novel Bill and the treaty.
Again, with this group of amendments there are some significant and fundamental issues. Amendments 35 and 90, tabled by my noble friend Lord German and which I have added my name to, have some fundamental issues. The reasoning for this is that Clause 9(2) states that the Act can apply to anyone who receives a decision on their asylum claim after the Act comes into force—a decision irrespective of when they arrived. Both amendments would mean that a decision under the Bill cannot be made for someone who arrived before the Act received Royal Assent. Currently, it is unclear what is happening to those people who arrived in the UK to claim asylum on or after 7 March 2023. It is thought that for people arriving to claim asylum on or after 20 July 2023, their cases are still in limbo, not being admitted to the asylum system.
If Section 2 of the Illegal Migration Act is commenced, the Government will be under a duty to make arrangements for the removal of adults and accompanied children. Therefore, can the Minister clarify whether the asylum claims of people who arrived in the UK on or after 7 March 2023 are being admitted into the asylum system for consideration in the UK, and are they in the flow processing cohort?
Amendment 90 seeks to ensure that the Bill does not apply to the 33,000 asylum applications submitted from 20 July to the end of 2023, or at any other time before the Bill receives Royal Assent. It is worth noting —my noble friend Lady Hamwee has made these points to me—that on principle, law should not be changed retrospectively. People should know on any given day what the rules are and should not be told at a later date that an action has now brought different consequences. Can the Minister therefore say what the Government’s assessment is of how many people will be removed in the first three to six months after the Bill passes, and who those individuals will be? Will they be people who arrive after the Bill receives Royal Assent or those who are already in the system?
Because of the lateness of the hour, I will finish there, other than to say that Amendment 71—again in my noble friend Lord German’s name, and to which I have added my name—talks about reporting. We as a country, and your Lordships’ House, are not aware of what happens to the reporting mechanism in the treaty, as regards the openness of both the monitoring committee and the joint committee. Amendment 71 seeks to ensure that every six months the Secretary of State lays a statutory instrument to this Parliament—if this Parliament is sovereign and, to use the phrase of the noble and learned Lord the Minister, it becomes the court of Parliament on the Bill—stating that Rwanda continues to be a safe country, and if either House rejects that statutory instrument, the statement that Rwanda is a safe country must cease.
With that in mind, I look forward to other noble Lords’ amendments and their views about the treaty, the commencement, the monitoring and the cost of the Bill, and I beg to move.
Lord Coaker (Lab)
My Lords, just to be clear, I will be very “Committeeish” about this group of amendments. In the light of that, I will just ask a couple of questions relating to my Amendments 69 and 87, which deal with the value for money and cost of the Bill.
I refer to the point that I made earlier, that the Committee needs no reminding that the Permanent Secretary at the Home Office required a ministerial direction because he repeated his earlier advice to the Public Accounts Committee on 11 December that the Home Office had no evidence that the Bill provided value for money. Therefore, can the Minister start with respect to my Amendments 69 and 87, which call for an ongoing assessment of the costs, as well as an economic impact assessment? Will he share with us a little more detail about the conclusions that Ministers have come to about value for money as opposed to what the Permanent Secretary said? No doubt, the Minister will say that it will act as a deterrent and therefore that is the value for money, but of course that is exactly the point that the Permanent Secretary was also making, that there is no evidence that it will act as a deterrent either. It would be interesting to hear the Minister’s assertion and the evidence for it other than just the belief that this will act as a deterrent.
Perhaps the Minister will update us on how much has been spent so far. My calculation got to nearly £400 million. What is the budget, is that the amount that has already been spent, and what is the projected spend over the next period, should the Government get their way with the Bill?
Amendment 86 refers specifically to the establishment of the monitoring committee. I remind the Committee that much of our discussion has been about the Bill asserting that Rwanda is safe and all of us saying that the Government are making an assertion about the factual situation now, whereas the treaty talks about how Rwanda may or will become safe should certain things happen. I have tabled Amendment 86, supported by the noble and learned Lord, Lord Hope, and the noble Baroness, Lady D’Souza, simply to get some more information about the monitoring committee referred to in Article 15 of the treaty. The particular word in my Amendment 86 to which I refer the Committee is “fully”, rather than a part being established here and another part there.
The Government have made all sorts of points about the monitoring committee. Given that it is supposed to oversee the operation of the treaty and the improvements that are supposed to happen in Rwanda to satisfy us that it is a safe country, could the Minister tell us where we are on the monitoring committee? I apologise if other noble Lords are up to date on this, but perhaps he could tell me how many members of the committee have been appointed, how many are expected to be appointed, where they come from, whether the committee has yet agreed the terms of reference that it is supposed to agree and whether they have been published. I have not seen them; I do not know whether anybody else has, but have they been published yet? If not, when will they be published?
There should be an enhanced initial monitoring period; how is that going? Has it started? It says it will be for a minimum of three months; presumably that does not start until the treaty is enacted or has it started already? When does it start? We need to know when that initial period of three months ends. Can it be extended to become six months, if deemed necessary? The treaty tells us that the monitoring committee needs to engage a support team. What or who is the support team? Has it been engaged and who is funding it?
Article 15(9) says:
“The Monitoring Committee shall develop a system and process to enable Relocated Individuals and legal representatives to lodge confidential complaints direct to the Monitoring Committee of alleged failures to comply with the obligations in this Agreement (including as to the treatment of a Relocated Individual), or any element of the processing of their asylum claim in accordance with this Agreement”.
How is that going and where are we with that?
Obviously, this is Committee, which is the time to ask some of these detailed questions. The wonderful philosophical discussions and debates that we have had are very important to this Bill, but there are some details in there that are fundamental for the Committee and this Chamber to understand, given the importance of the monitoring committee to the Bill. We need to understand how that is going as we continue to consider what amendments may be brought forward on Report— for us to consider further and maybe even vote on—on how the monitoring is going, how the Government expect it to happen and what decisions we may or may not come to on commencement.
Lord Purvis of Tweed (LD)
My Lords, I speak to Amendment 74 in my name in this group and associate myself with all the questions that the noble Lord, Lord Coaker, asked. I will also, with this amendment, seek to follow the money.
We heard in the previous group but one what I thought was an interesting exchange between the noble Lord, Lord Green, and the Minister with regard to the concern about the social fabric and social contract of our nation when it comes to the high level of migration. It is the case that, over the past five years, the number of those seeking asylum in the UK has gone up from 35,000 to 75,000—that is correct.
Lord Green of Deddington (CB)
My Lords, the noble Lord is completely right on his numbers; migration is about 10 times, sometimes more, the inflow of asylum seekers. But the issue that concerns public opinion—maybe because it is always on television or because it is the only thing that the Government are talking about—is indeed asylum. None the less, the real problem, as the noble Lord implied, is the scale of immigration, and we should be under no illusions about what that means for our future.
Lord Purvis of Tweed (LD)
I am grateful to the noble Lord and, to some extent, I agree with him. If we have a legal migration system that has been a catastrophic failure, and the Government then seem to wish to scapegoat those fleeing conflict or danger to claim asylum here, I am not surprised that this dominates the debate. But the Government should not look at us when it comes to that situation.
I found it interesting that, when I asked the noble Lord, Lord Green, who supports this Bill, what impact it would have on that point with regards to the backlog—the Wembley Stadium—he gave me an honest answer and said that he did not know. I think he said that the Government do not know; I think he said no one knows. Yet we have paid nearly £400 million not to know. It is the most expensive question never to be answered in the history of the Treasury.
It will get worse, and Amendment 74 therefore tries to get a bit more detail about this. The noble Lord, Lord Coaker, is absolutely right. The Permanent Secretary did not seek ministerial direction simply, as the Minister alluded to before, because there was maybe a question around this, because it is novel. The Permanent Secretary is the accounting officer; it is his duty to say whether a policy would be value for money for the British taxpayer. He was unable to do that, so he asked to be overruled by the Minister. What was quite extraordinary was that, as we now know from his submission in December, part of the ministerial direction was not to tell Parliament of an extra £100 million that was given as a second tranche under this scheme—another large swathe of funding.
We were told by the noble Lord, Lord Murray, during the passage of what became the Illegal Migration Act, that the costs of the scheme were dependent on a per-person basis. That was correct, but we now know that it was not the full answer. Part of the scheme will be on a per-person basis, but the £100 million was a credit line to the Government of Rwanda. So I would like the Minister, when he responds to this debate, to be quite clear and to tell us what that credit line is being used for. We do not know and, if the court of Parliament is to make a judgment, we need a bit more evidence.
The Hope hostel, which is the receiving centre for the people who are due to be relocated, is a private business. It is operated on a private sector contract and the Government say that they will not release information about what we are paying for because it is a Rwandan private sector contract. The Minister said to me in his letter that the Home Office cannot divulge information about the contracts that other countries have made—but we have paid for it. Not only have we paid for it, we will be paying for it. So I would be grateful if the Minister could tell us if there will be another tranche of funding for the Hope hostel in the next financial year, because it is on an annual rolling contract.
This issue also comes down to the fact that that centre can accommodate 200 people, with a typical processing time of a fortnight, I was told. So that will be a maximum of about 5,000 people a year, unless there are Hope hostels 2, 3 and 4 that we will be paying for. We do not know yet. If that is the case and we look at the Wembley Stadium backlog of at least 90,000 people, at 5,000 people a year it is going to take nearly 20 years to clear it.
So far, it has cost just shy of £400 million. What if it is on a per-person basis? That is where the noble Lord, Lord Murray, was absolutely right because, after we pleaded for the impact assessment of the Illegal Migration Bill, he gave that to us and we were duly grateful. It shows that per-person relocation will cost £169,000, on Home Office estimates. I remind the Committee that that is £63,000 more than processing someone and them staying here in the UK. It is 60 grand per person more expensive to the British taxpayer to relocate them in a scheme that is going to take 20 years and has already cost us nearly half a billion pounds.
If it will be 5,000 people a year, what are we looking at if we times that by £169,000? In one year, that will be just shy of £1 billion for two flights. That is fine if this is about the headlines and the Prime Minister saying, “I’ve got the planes taking off”. It is not fine for the British taxpayer. It is equally not fine if the whole purpose of this was to be a deterrent, because the noble Lord, Lord Green, is correct in one respect: if you are clearing the backlog, you want fewer people to come in the first place. That would require a deterrent rate of 100%. The Government’s best estimate, on a medium-term basis, is that there will likely be a break-even point with a deterrent effect of 50%. That is in the impact assessment. So the Home Office itself is estimating that this whole deterrence scheme is just going to halve the number of boats.
We already know that that does not matter, of course, because the Prime Minister announced in the new year that the deterrent effect was working. But we know that it is not, so I would be grateful if the Minister could outline what has been spent within MEDP—the migration and economic development partnership—in a scheme-by-scheme, line-by-line and project-by-project statement. If the scheme came under official development assistance, it would have to be put down under the DevTracker. But it is not under the DevTracker system of transparency at the FCO: it is from the Home Office, so I would like to see the equivalent of that published and the Minister to state whether the rolling contract is to be paid for another year, going forward. I would be very grateful if the Minister could say, at the end of year 1 of this scheme being in operation—just year 1, I am not going to be too ambitious—what the deterrent effect, the total cost and the per-person cost will be. Ultimately, if we are talking about a Budget coming up, surely we should be straight with the British taxpayer.
Baroness Chakrabarti (Lab)
My Lords, I will introduce my Amendments 81 and 82 in this group, which I have the privilege of sharing with the noble Viscount, Lord Hailsham. I remind the Committee that the Government concede that this policy is novel and might even concede that it is controversial. There are grave concerns about whether Rwanda is currently safe and further concerns, raised eloquently earlier today, that even if it becomes safe at some point—for example, as a result of the successful implementation of the treaty—it may not be safe for ever.
Throughout these debates, the Government have relied heavily on the principle of parliamentary sovereignty—not executive sovereignty. That is why Amendment 81, which I share with the noble Viscount, Lord Hailsham, and which is supported by the noble Baroness, Lady Bennett of Manor Castle, makes commencement a matter for the Secretary of State but to be approved by the Joint Committee on Human Rights and both Houses of Parliament by way of resolution. It is hence not executive fiat. Currently, Clause 9(1) says:
“This Act comes into force on the day on which the Rwanda Treaty enters into force”.
Treaty ratification is for the most part a matter for the Executive, but if we are to be the high court of Parliament and oust the jurisdiction of the ordinary courts of the land, parliamentary sovereignty at the very least requires parliamentary commencement. I leave to the noble Viscount, Lord Hailsham, Amendment 82 on his system of rolling sunsets.
Viscount Hailsham (Con)
I am most grateful to the noble Baroness and entirely agree with what she has said on Amendment 81. My amendment is an additional concept. The concern has become apparent in Committee that, if Rwanda can become safe, it may also cease to be safe. It is important that we should have in place a mechanism for determining if it becomes unsafe, so that the provisions in the Bill cease to operate. That is what my Amendment 82 seeks to do.
I have called it rolling sunsets, but this is what I have in mind: the amendment from the noble Baroness triggers the implementation of the Bill for a period of two years, in the circumstances that she set out, and at the expiration of that period, if the Government want another two years or any other period, they must get an affirmative resolution of both Houses. Before they can get that, the procedure outlined by the noble Baroness must be complied with, including a report from the Joint Committee as to safety. If they want to roll it on for a third period of two years and so on, each time Parliament would be given the opportunity of receiving a report and triggering the extension of the Bill. In that way, rolling assessments of safety could be provided.
Lord Falconer of Thoroton (Lab)
My Lords, I strongly support my noble friend Lady Chakrabarti’s amendment, as amended by that of the noble Viscount, Lord Hailsham. It is incredibly important that the Act comes into force only when there is satisfaction that Rwanda has become a safe country and a rolling assessment can be made. I say that subject to the noble and learned Lord, Lord Stewart of Dirleton, indicating to us earlier—we were very excited by this—that he would tell us whether Parliament could in some way reopen whether its judgment on whether it was a safe country had changed. He told us that the noble Lord, Lord Sharpe of Epsom, would tell us how this would work on a later amendment. I anticipate that he will tell us on this very amendment how Parliament can in some way be activated to get rid of it. I am very excited to hear that, because at the moment I cannot see how it could without the amendments of my noble friend and the noble Viscount, Lord Hailsham.
I will raise two points about where we are at the moment. The first is about when the future Act will come into force. Clause 9 says:
“This Act comes into force on the day on which the Rwanda Treaty enters into force”.
One would envisage that the treaty will not enter into force until the Government are satisfied that Rwanda is safe. That is a minimum requirement for a Minister. I assumed that that was the position, but I then had the misfortune to look at the agreement that the country has entered into with Rwanda. It says:
“This Agreement shall enter into force on the date of receipt of the last notification by the Parties”—
Rwanda and the United Kingdom—
“that their internal procedures for entry into force have been completed”.
I understand that to mean that, when the process has been gone through constitutionally in Rwanda and the UK—to ratify, as it were—each country notifies the other that that is the position, and the agreement immediately comes into force.
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.
Lord Falconer of Thoroton (Lab)
No. The noble Lord has misunderstood my argument. You are in this country before the Act. You have a right in the sense that you are, in fact, subject to persecution. You would have to advance the argument to get the right, but your right is a right to stay here, and a right to stay not on the basis that you may be exported to Rwanda. That is a right. It might not be viewed by the law as a “vested right” in the sense that he is referring to, but it is plainly within the spirit of retrospective legislation.
Lord Wolfson of Tredegar (Con)
A very good touchstone of when lawyers realise that—if I may respectfully say—the argument does not quite work is when they start referring to spirits of things. With great respect, that is not a vested right. If you have a right to asylum, you have a right to asylum. Under this Bill, you also have a right to asylum. What this changes is where you have the right to asylum.
Lord Purvis of Tweed (LD)
The person who would have a right to asylum in the UK under this Bill would no longer have the right to asylum in the UK. It is completely different. They may have a right to asylum in Rwanda, but that is not the right that they had when they were here which is going to be taken away from them.
Lord Falconer of Thoroton (Lab)
Will the noble Lord explain why if I come here and am entitled to asylum that is not a right?
Lord Wolfson of Tredegar (Con)
The right is to make a claim for asylum. That is the vested right absolutely. The right is the right to asylum.
Lord Wolfson of Tredegar (Con)
It does not work if the noble Lord shouts at me when he is sitting down. I am happy to give way. I hear what he says—that it is the right to asylum in the UK, and I am respectfully suggesting that is not the case under the law. The hour is late, and we will no doubt come back to this.
Lord Falconer of Thoroton (Lab)
A right to have possession of my property requires me to go to court and get it. It is still a right, even though I have to ask for it.
Lord Wolfson of Tredegar (Con)
I am sorry; that is totally different, because the courts—I will give way to the noble Baroness.
Baroness Chakrabarti (Lab)
I think we have got to the heart of this. I am concerned about the time, not just for Members of the Committee but for the staff, just before the one-day half-term. I think perhaps the noble Lord opposite is indicating the difference he sees between, for example, property rights and humanitarian rights to refugee protection, which have been rights recognised in this country for a very long time.
Lord Wolfson of Tredegar (Con)
Of course they are rights that have been recognised for a very long time, but that was not the point being put to me, as I understood it. On the property point, if you have property, you have a vested right in property. The court is declaring that you always have that right. First, you do not have a vested right in asylum; it is not a right vested into you. Secondly, the Bill does not take away a vested right you have. You still have the right of asylum.
I think the noble Viscount is saying that it changes it. The question was of retrospective legislation, which is a fundamental point raised by the noble and learned Lord. The question is whether this is retrospective legislation. For the reasons I have set out, I submit that it plainly is not. I apprehend that we will come back to this. I do see the time. Unless there are any other interventions, I will pause there.