Safety of Rwanda (Asylum and Immigration) Bill

Lord Frost Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

[Baroness Lawlor (Con)]

My Lords, I support the aims of the Bill and I hope that it—and they—will succeed, that it will not be challenged and that there will be no further obstacles put in the way of removing people who come to this country illegally and by these dangerous routes.

My Amendment 17 would leave out Clause 2(5) and substitute the text on the Marshalled List. The aim is to tighten the Bill on what may

“prevent or delay the removal to Rwanda of an individual”

under any of the Immigration Acts, the Human Rights Act 1998,

“EU derived law and case law … under sections 2 to 7 of the European Union (Withdrawal) Act 2018”

and

“any … provision … of domestic law (including … common law), and … international law”

relevant to the aim, so as to limit legal challenges to the Bill. I do not share the views of those who say that the Bill contravenes the rule of law. Their view rests on assumptions about the role of international law, its place within our own system, the creative approach of the Strasbourg court in applying the convention and the tendency now to accord something of a primacy to courts over Parliament.

These assumptions are contested within the legal profession itself. I will refer to one KC, Anthony Speaight, whose paper was published at the weekend by Politeia, of which I am research director. I therefore declare a special interest in the matter. Speaight explains the comparative novelty of the view, which he dates from Lord Bingham’s 2010 book, that the rule of law requires adherence to international law.

I am not a lawyer. I approach the question as a historian of British political and constitutional history. It is a history, by and large—and certainly in the era since the franchise was extended in the 19th century—of the interplay between Executive and Parliament, with the Government accountable through Parliament to the will of the people, even before the extension of the franchise. At the moment, both the Government and Parliament are intent on being accountable on the matter of curbing illegal immigration. But they are prevented by laws and the judiciary that operates them or, as in the case of the Strasbourg court, interprets them in a manner that takes from and does not protect their liberty, on which good law is based—the freely expressed will of the people who are governed.

On immigration, legal and illegal, the people have spoken loud and clear. They want Britain’s borders controlled and the flow of immigration curbed. Parliament has passed the laws to bring such control, but each Bill it brings forward meets a challenge in the courts. Is removal to Rwanda to be stopped not by a recalcitrant authoritarian monarch or an oligarchic, aristocratic, landowning Parliament, as in the past, but by a judiciary acting—I do not doubt in good faith—to give effect to a cocktail of legislation binding this country from an era whose laws are not our own and from times that are not our own?

There are practical limits to what a good Government can achieve. It is recognised, perhaps more clearly by voters than by rulers, that uncontrolled immigration facilitated by the obstacles now put by the courts, often—as in the case of illegal immigration through asylum claims—has consequences for the economy in terms of the budgetary costs. It puts demands that cannot be satisfied on Britain’s domestic arrangements—not just for processing claims but on every manner of the support that the UK’s people have over the centuries shown to those who, for whatever reason, come to make their lives in this country.

If our constitution is to survive the onslaught of legal challenge, the will of Parliament, reflecting the mandate of the voters, must triumph and, with it, the stability, transparency and accountability it has brought to Britain and its people, rather than be challenged on account of international or our own laws.

This country is no outlier. Across the channel, the political systems of western European neighbours are buckling under the political immediacy of uncontrolled immigration, each seeking to exploit or avoid the system to which in law they are bound under EU law, convention law and the mass of internal legislation to which these have given rise. They also have to take account of Schengen.

Take the case of France. Its political system was practically frozen for two years, haggling over an immigration Bill that many see as promising too little, too late. The problems with which it grapples are immense. Constitutional arrangements and stability are under threat at different levels. Departments are pitted against national powers, as in the recent stand-off with some mayors, who refuse to accept and look after unaccompanied minors because they have no ability to do so. At government level, against the ruling of the Strasbourg court, it is voters against the traditional systems of the political parties, the republicans and the socialists.

In this country, we are free to make our own laws. Other noble Lords will speak to their amendments on the same theme. My amendment aims to tighten the Bill and to pre-empt further challenge. As the Minister mentioned earlier, a core principle and aim of the Bill is to prevent further challenge to the workings of ordered, representative and accountable democracy. It aims to promote the aims of the Bill to delay illegal and unsafe crossings and deter the horrid loss of life, such as the death of a little girl of seven in freezing waters in the channel on Sunday night. I therefore beg to move.

[Lord Frost (Con)]

My Lords, I will also speak in favour of Amendment 17, tabled by my noble friend Lady Lawlor, to which I have added my name. As I said at Second Reading, I support the Bill. I am afraid that the Rwanda policy is a bit of a Heath Robinson arrangement. It shies away from some of the tough decisions needed to solve the problems. But I support the Bill because it is the plan we have, and we must hope it makes a difference.

It can certainly be improved. Most of the amendments discussed today would make it worse rather than better, and less effective rather than more effective. Amendment 17 is one of the few exceptions to that. It aims to provide a more clearly drawn Bill—one that can withstand challenges and fulfil its purpose more effectively, by making clear that no other legal provisions of any kind, whether in domestic or international law, can be used to frustrate the policy.

I do not want to repeat issues that have already been raised in Committee and discussed again at length today, but I will briefly explain why I support this amendment and then make one comment based on my involvement in recent years in the intersection between international and domestic law.

First, it is absolutely clear that this Parliament may legislate against international law, and indeed the Government may act in contravention of international law. As we have already heard, Clause 1(4) makes that clear and nobody is seeking to amend that. It is a long-standing, fundamental element of our constitution. It is not some sort of weird, UK-specific provision; there is good reason for the dualism in our system. First, otherwise Governments could act to create domestic law merely by signing an international treaty and thereby sidestep normal democratic processes. Secondly, it reflects the reality that international treaties are in practice very difficult to adapt to changing conditions because all the parties must agree to changes. It has been suggested by some noble Lords today and in previous debates that that is what should happen and that we should seek to renegotiate the international framework. The refugee convention, for example, has 149 state parties, including such well-known supporters of international law as China, Russia and Iran. Are we going to wait for them all to agree to amend this framework? We are clearly not, but if national Governments accept that they can deal with pressing national challenges only by renegotiating these treaties, they are in effect abandoning their duty to govern their own countries on matters of huge importance.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Frost Excerpts

2nd reading
Monday 29th January 2024 Lords Chamber

[Lord Frost (Con)]

My Lords, we have heard a lot of anger and outrage this afternoon, and a lot of agonising about nebulous concepts such as international influence and reputation. We have heard much effort to side-slip away from our dualist system of international and domestic law, a lot of advocacy of a purist view of separation of powers that has never applied in this country, and a surprising degree of deference by this sovereign Parliament to a Supreme Court that did not exist two decades ago, is not a constitutional court in the US or European sense—much as many people seem to wish it was—and has decided that it is the fount of wisdom not just on law but on complex issues of foreign policy. Indeed, when it comes to the safety of Rwanda, it seems that the Government’s facts are just judgments but the Supreme Court’s judgments are facts.

Maybe it is useful to get back to the essentials. Perhaps it is old fashioned, but I believe it is the job of a national Government to set terms for who may enter the country, and to control the border accordingly. I think that proposition would be widely agreed on in this country, but seemingly not here. Here, it is suggested by many noble Lords that in significant areas the terms of entry must be set by international conventions agreed decades ago by a European court that seems to believe it has the right to define the extent of its own powers, and by the people traffickers and criminals who make it possible for large numbers of people to take advantage of these terms. We are told, in other words, that the British Government should not, in practice, be able to set the terms under which people can come into this country. I put it that starkly because we can then see that this is not a proposition that would command widespread assent in this country.

This current situation cannot be sustained in modern conditions. The Government are right to do what is necessary to re-establish control. Control must mean that the Government define the conditions for entry into the UK; that one of those conditions is that if you arrive illegally, you do not have the right to stay and must therefore go somewhere else; and that we have no obligation to take in just anybody who shows up and can claim asylum, in whatever numbers. It may well also have to mean that if international law, whether the ECHR or any other agreement, says anything different, then so much the worse for international law. All these things may be unpalatable—and I know they are unpalatable to many in this Chamber; it is much easier to avoid thinking about them—but if you do not do these things, you do not have control.

To the extent that I understand the alternatives most widely advocated by noble Lords, they seem to involve establishing so-called safe and legal routes for the many people who currently show up here illegally—in other words, to acquiesce in the reality that we do not control our borders, and to give up trying. The truth is that safe and legal routes will be rapidly overwhelmed by numbers, and that illegal arrivals will continue.

The most reverend Primate, who is in his place, reminds us that all human beings are of great value. Of course I agree with him, and for the same reasons; of course we should welcome the stranger. But, in my very humble view, in this area you cannot get from that undoubted existential truth to a political proposition—a proposition that large numbers of people from many countries around the world, if they can persuade a criminal trafficker to take them, have the de facto right to settle in this country. Those are propositions of a completely different nature and kind.

It follows logically from all this that of course I support the Bill and its deterrent purpose. I admit some doubts as to whether, in its current form, it will be robust enough to achieve the desired end. I think it would certainly have been better if it had been amended to strengthen the exclusion of international law, as proposed in the Commons; in my view, we will one day have to go there. But it is done now; the Commons debated it fully and has spoken. I support the Government in bringing it into force swiftly and I hope noble Lords will do likewise.

Public Order Bill

Lord Frost Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Lord Frost (Con)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Bennett, particularly today. I fear that we are probably not destined to agree on very much in our debates in this place, but I hope that she will not be too embarrassed to hear that I agree with her on the importance of free debate and protest, even on unpopular causes. It is important to maintain that, and it is a principle through which I look at the Bill.

I support the general principle of the Bill. It seems unarguable that there have been changes in the methodology of protest, from a range of campaigners, that deliberately aim at the disruption of everyday life. We have seen that in many ways, as noble Lords have mentioned. But the Bill includes new and significant powers, of a novel kind in some cases. Noble Lords may remember that I resigned from the Government last year rather than support the then “plan B” measures and restrictions on civil liberties that would have come with a further coronavirus lockdown. From the experience of the pandemic, we have seen just how easy it is to create, expand or distort powers for purposes that were not originally intended. So we have real-life experience of this, and we should keep that in mind—it has not been said much in this discussion so far, but we all lived through it.

So if we are to avoid such problems, it is important to be clear—I think and hope that the Government are—about what we are trying to achieve. I suggest that the correct principle is that the right to protest and persuade is fundamental and must be protected, but intimidation and anything more than incidental disruption of the rights of others to go about their lawful business, particularly with novel and aggressive tactics, ought not to be allowed. We must apply this principle whatever the circumstances, whether it is fracking, an abortion clinic or anything else. My worry about some aspects of the Bill is that this principle may not be fully followed.

I will make three brief points. First, Clauses 1 to 8 of the Bill create a series of specific powers that would certainly stop some of the disruptions that we have seen over the last year or two, such as blocking the Dartford bridge, oil refineries and so on. I am certainly willing and ready to accept the Government’s judgment that extra powers are needed to deal with those situations. However, in line with the principle I set out, it is important, as the Joint Committee on Human Rights notes, to look carefully at the drafting, which may be a bit loose, and to avoid the risk of inadvertent consequences. It is also not clear that the powers would stop some of the things that we have seen, such as blocking roads in central London, throwing paint over paintings and so on. As has been said, existing powers cover those situations, and they should be used with more determination than we have seen so far. Otherwise, the risk—I hope we will not get into this situation—is that next year, we will have another Bill creating specific offences of throwing paint over a painting and so on. We need to avoid that, and the authorities need to be determined to use the powers that they have, with new powers being limited to specific, defined and novel situations.

Secondly, like others, I have concerns about Clause 20, on SDPOs made “otherwise than on conviction”. I think—and, again, our experience in the pandemic is part of this—that it is fundamentally unacceptable in a free society to restrict individuals’ free movement or right to protest, to free speech, to carry particular items and so on, without them having been convicted of an offence in a court of law. I find it particularly problematic that people should have to wear electronic tags without conviction—where people have been caught and convicted, that is a different matter. But Clause 20 is quite widely drawn and carries the risk of making it too easy for the authorities not to worry about actually catching and convicting but simply to use an SDPO. It seems to carry the risk of a slippery slope for the convenience of the Executive. I note that, in their response to the JCHR, the Government do not make a very strong defence of this provision. If there is a defence, I would like to hear it—perhaps the Minister could say more on that at the end.

Thirdly, as the Minister noted, Clause 9, on abortion clinics, was added in the other place and was not part of the Government’s original thinking. I am a little surprised that the Government allowed it to be subject to a free vote, because the issue is clearly not about abortion services themselves but about the right to protest and persuade. Here, the distinction I made between persuasion and intimidation needs to be maintained, and I am not sure that Clause 9 does that. I have no difficulty with subsections (3)(c) or (3)(d), but it cannot be right for this Parliament to make it illegal if someone, for example, “seeks to influence”, “persistently … occupies” or

“informs or attempts to inform”,

in subsections (3)(a), (3)(b) and (3)(f), respectively. That is true whether it is in the vicinity of an abortion clinic or anywhere else.

I sense, from comments made by Ministers here and in the other place, that they feel that they are on uncomfortable ground and are looking for help on this subject. I am sure that there will be amendments in this area and hope that the Government will give them a fair wind.

Finally, the Government themselves note that Clause 9 is incompatible with the ECHR. Many commentators and the JCHR argue that the same is true of other areas of the Bill. I do not know about that. For me, that is interesting but not decisive; I do not base my concerns on that argument. I believe that this Parliament should be able to protect the civil liberties of people in this country without outside help. Its record over the last two to three years has been, shall we say, mixed in this respect. To conclude, I hope that the Government will look carefully at these points of detail of specific concern and make it easier for those who think—as I do—that we should be able to wholeheartedly support a more carefully worked-through and acceptable version of the Bill.

Western Jet Foil and Manston Asylum Processing Centres

Lord Frost Excerpts

Tuesday 1st November 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

I thank the noble Baroness for the question. I entirely share her concern for the staff at Manston and Western Jet Foil who have to work in difficult conditions. I have made a point of ensuring that officials are fully alive to these issues. The noble Lord, Lord Coaker, suggested that the Home Secretary had yet to visit Manston. As I understand it, she is going to visit later this week, and I can reassure the House that I am visiting next week. I have absolutely no doubt that, on all of those visits, the present concerns of the staff will be taken into account.

As I understood it, the noble Baroness’s question in relation to appeals effectively asked whether this showed a failure by decision-makers to take into account matters which had come to light later. That is not routinely the case. Usually what happens is that a fresh claim is advanced by the applicant and/or there is a fresh set of facts; for example, the development of a subsequent relationship.

[Lord Frost (Con)]

My Lords, we have seen over the last couple of days what seems to me to be an almost obsessional pursuit of the Home Secretary, who is dealing with a series of extremely difficult, substantive problems. It is a pursuit on the basis of leaks, anonymous briefings and the usual oversensitivity about words—though if we are going to be sensitive about words, I suggest that “racist” is one that should not be used without a degree of caution. Does the Minister condemn this practice of leaking against a sitting Minister? Does he agree that what the British people want the Home Secretary and the department to do is get on with solving the substantive problem, which means making the country less attractive to illegal migrants, looking at the international legal framework in which we are operating and improving the performance of his department?

[Lord Murray of Blidworth (Con)]

I absolutely agree with my noble friend. It is very important that the Home Secretary is able, without unnecessary distraction, to get on with the job of resolving this very difficult situation. I am very grateful to my noble friend for the support he has expressed for the Home Secretary. I am sure that this issue will be front and centre of all her decision-making.