Lord Stewart of Dirleton debates involving the Scotland Office during the 2019 Parliament

Mon 19th Feb 2024
Mon 19th Feb 2024
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Safety of Rwanda (Asylum and Immigration) Bill
Lords Chamber

Committee stage & Committee stage: Minutes of Proceedings & Committee stage: Minutes of Proceedings part one
Moved by
1: Clause 1, page 1, line 14, at end insert—
“(ia) where the litigant is a litigant in person, expenses incurred by that litigant, or”Member's explanatory statement
This amendment ensures that the definition of litigation funding agreements includes agreements under which a funder agrees to fund expenses incurred by a litigant in person.
Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, I will address Amendment 1 alongside government Amendment 2 in one moment. I need not repeat in detail why this Bill is important, as we debated it so recently, just two weeks ago at Second Reading, but I want to address some of the points raised. I wrote to noble Lords—and to noble and learned Lords—but thought it important to put those matters on record here as well.

Clause 1 makes it clear that the Bill will have retrospective effect. The Government have carefully considered the point and decided that the Bill should have retrospective effect, meaning it will apply to litigation funding agreements in place before the PACCAR judgment and to any that may have been made between the judgment and the Bill becoming law. I thank noble Lords for their contributions, particularly my noble friend Lord Wolfson of Tredegar, King’s Counsel, who is not in his place today.

There were concerns about the possibility of claimants who negotiated new funding agreements following the PACCAR decision, having believed their first agreement to be unenforceable, facing the prospect of two funding agreements that could be enforced once the Bill comes into effect. In addition, reference was made by the noble Lord, Lord Carlile of Berriew, King’s Counsel, to a suggestion that the Bill’s retrospective effect may interfere with the Government’s obligations under the European Convention on Human Rights. That was raised in the context of the opinion of the noble Lord, Lord Macdonald of River Glaven, King’s Counsel, which was shared among noble Lords ahead of Second Reading. On behalf of the Lord Chancellor, I thank noble Lords for raising this issue and assure them that the Government are looking into the questions raised and hope to provide a further update on Report.

I regret that I cannot say much more than that at this stage, to allow the Government to review the matter, but I welcome the continued engagement from across the House, of which this Committee is a part.

I should also like briefly to mention the forthcoming Civil Justice Council review of third-party litigation funding, which was discussed by a number of noble Lords, and to address particularly the points raised by the noble Lord, Lord Marks of Henley-on-Thames, KC, and the noble Lord, Lord Ponsonby of Shulbrede, who raised a series of important questions on potential regulation of the market and limits on funders’ returns. As the Committee may be aware, since Second Reading, the Civil Justice Council published its terms of reference for the review on 23 April, which provide further detail on scope and timing. I thank noble Lords for their interest. If any noble Lords have further material they wish to share, I encourage them to contact the Civil Justice Council directly, which will doubtless welcome their contributions and expertise.

With those points addressed, I turn to the amendments. The Bill contains two clauses. Clause 1 amends Section 58AA of the Courts and Legal Services Act 1990. Its subsection (2) amends the definition of a damages-based agreement to provide that an agreement

“to the extent that it is a litigation funding agreement … is not a damages-based agreement”

—a DBA. Subsection (3) defines an LFA for the purposes of Section 58AA. Subsection (4) provides that the amendments are to be

“treated as always having had effect”.

The amendment addresses only the Supreme Court’s finding that certain LFAs are DBAs and does not seek to reverse the finding that litigation funders provide claims management services.

The Government have tabled two amendments to this clause. Amendment 1 remedies a perceived gap in the current draft definition of a litigation funding agreement, or LFA. As drafted, the definition of an LFA does not include reference to an agreement to pay the expenses of unrepresented litigants, which may occur where, for example, an unrepresented litigant receives funding for an expert report—a report from a skilled witness. Since the expert would not be providing “advocacy or litigation services” within the meaning of the legislation, an agreement to provide funding in this instance would not qualify as an LFA within the current draft definition.

The Government therefore believe that this should be addressed by bringing a small technical amendment to the Bill. This amendment will ensure that an LFA of the type rendered unenforceable by PACCAR, which is used to fund items of expenditure where the litigant is unrepresented, will be enforceable between the funder and the litigant. This reflects the policy objective of the Bill, which is to restore the position to that which existed before the Supreme Court ruling in July 2023, so that those LFAs of the type affected by the judgment are enforceable.

The second amendment tabled by the Government also addresses an ambiguity in the draft definition of a litigation funding agreement. As currently drafted, the definition of an LFA includes an agreement for

“the payment of costs that the litigant may be required to pay to another person by virtue of a costs order”.

However, there is a legitimate concern whether the expression

“by virtue of a costs order”,

may be interpreted too narrowly, and therefore be a source of litigation around its meaning regarding LFAs which neither specifically fund court or tribunal proceedings or envisage the issue of costs being determined by the court.

This amendment, which is, again, a small technical change, is designed to make it clear that the payment of adverse costs the litigant may be required to pay to another party, which would be funded under an LFA, includes the payment of costs following court, tribunal or arbitration proceedings, or as part of a settlement.

Clause 2 explains the extent, commencement and short title of the Bill, as I specified at Second Reading. I hope that noble Lords, and noble and learned Lords, will support these technical amendments, and I beg to move.

Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames (LD)
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My Lords, I will speak now because I have tabled the only non-government amendment before the Committee. It is a probing amendment.

The Minister, the noble and learned Lord, Lord Stewart, mentioned briefly the discussion about this Bill since the Second Reading debate—mostly in the context of the letter that he and the Secretary of State helpfully circulated—and the publication of the terms of reference for the review. That has been part of a wider discussion, and questions have been asked by a number of briefings. The briefing process for this Bill in relation to members of the public and interested or affected parties has been late; that has been a feature of the discussion, which has centred largely around questions on the need for regulation of the litigation funding market generally and on the issue of retrospectivity for the principal provision of the Bill, which the Minister mentioned.

I hope I will be forgiven for running through some of the arguments that were canvassed at Second Reading, largely in the light of the lateness of the briefings that we have had and the expressions of concern that there have been. A powerful argument has been advanced by some clients of litigation funders. They make the point—I foreshadowed it at Second Reading—that, in an unregulated market, litigation funders can effectively impose their terms on clients. This can mean that successful clients end up with only a very small part of the damages awarded to them, with the litigation funders taking the lion’s share; indeed, in one case that was brought to my attention and that of other noble Lords, funders have been in a position, following a case that they have funded, under their contracts of not only retaining all the damages awarded to the claimants but actively pursuing those claimants—their clients, in effect—for substantial costs that they incurred over and above the damages that were recovered. The clients say that that is most unfair; one can see their point.

The same people point to the DBA regulations—the Damages-Based Agreements Regulations 2013—and say, again with considerable force, that lawyers who enter into DBAs with their clients may not retain for themselves more than a prescribed proportion of the damages awarded, and that such lawyers are bound by other prescriptive regulations as to what they can set for their clients or in the contracts between them and their clients, the litigation funders having the upper hand in any negotiations of such agreements. They ask: why should similar restrictions as are imposed on lawyers in damages-based agreements not be imposed on litigation funders? They also say that, in any event, lawyers are already limited in the terms of what they can agree and are subject to comprehensive professional regulation, whereas litigation funders are not.

Noble Lords may remember that, at Second Reading, I said that, in the absence of regulation, there was

“a bit of a jungle out there”,—[Official Report, 15/4/24; col. 818.]

and that that should not be permitted to persist. Those expressing these concerns call for regulation of the litigation funders’ market generally, the primary purpose being to ensure more of a level playing field between funders and clients and the argument being that, if regulation of DBAs is appropriate for lawyers, why is it not for litigation funders?

As is well known to this Committee, the PACCAR decision gave legal effect to the essentially political argument that litigation funders should be subject to the DBA regulations. As we all know, this was because the Supreme Court decided that, if LFAs did not comply with the DBA regulations, which they generally would not, they would be unenforceable because LFAs involve the provision of case management services.

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Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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I will make the briefest of comments. I welcome the amendments put forward by the Minister. I very much take to heart the point made by the noble Lord, Lord Carlile, that the Bill would be pretty pointless unless there was an element of retrospectivity to it. I read the information that we were sent by the Bingham Centre, which was informative and interesting, and by the Bar Council. I absolutely understand the primary purpose behind this legislation.

The noble Baroness, Lady Bennett, commented on the legal balance in this Committee. I join her, as a non-lawyer; I cannot match her for gender, I am afraid. However, I can talk about the clients who are paying for this. I might have made the point at Second Reading that, by my understanding, the bulk of the people who take advantage of this type of funding would be at the sort of middle to large-sized company where I was chief executive. It is a way of cash management, in essence, because you do not know what litigation is on the horizon and you do not want to spend too much time on the litigation because that takes time away from running the business. So having these ongoing litigation funding arrangements is a way of managing risk. For me, that was the main purpose of occasionally entering into those agreements, rather than the litigation itself.

The other primary point worth repeating is that a lot competitors out there would like this business—Singapore, Australia, Dubai and elsewhere. I was very aware of that when I was running a business. I was regularly approached by people wanting to reach alternative ways of resolving any disputes that may arise.

Nevertheless, given those thoughts from a client’s perspective, I welcome this legislation. The English and Welsh model should be as up to date and competitive as possible. In that sense, I welcome the Bill and the Government’s amendments.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, I thank noble Lords and noble and learned Lords for all their contributions today. I will try to respond to the substance of the points that noble Lords have raised.

The Supreme Court judgment in PACCAR rendered many litigation funding agreements unenforceable. Uncertainty around litigation funding risks having a detrimental impact on the attractiveness of the England and Wales jurisdiction as a global hub for commercial litigation and arbitration, as well as on access to justice more broadly.

Through this Bill, we will restore the position that existed before the Supreme Court’s ruling in July 2023 so that litigation funding agreements affected by the judgment are enforceable. This will also ensure that claimants can get access to litigation funding in order to bring big and complex cases against bigger, better-resourced corporations, which they could not otherwise afford. In saying that, I reflect the principled concern raised by the noble Baroness, Lady Bennett of Manor Castle, in her brief comments and echoed by the noble Lord, Lord Ponsonby of Shulbrede. It is a leitmotif that ran through much of our discussions at Second Reading; we are all seized of the difficulties to which inequality of arms can give rise.

The remarks of the noble Lord, Lord Marks of Henley-on Thames, which went over much of the history of litigation funding as we now have it—or as we had it up to the point of PACCAR—gave us a useful reminder of some of the issues at stake. It is also of use for us to consider the background to the rise of litigation funding and to bear in mind the objections that law has traditionally had against third-party litigation of this sort—the traditional objections to the pacta de quota litis, which would allow someone else a controlling hand in the manner in which litigation was carried out, perhaps to the detriment of the person in whose interest that litigation was nominally being pursued.

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Moved by
2: Clause 1, page 1, line 16, after “order” insert “, an arbitration award or a settlement agreement”
Member’s explanatory statement
This amendment ensures that the definition of litigation funding agreement includes agreements under which a funder agrees to pay costs relating to litigation that arise by virtue of an arbitration award or a settlement agreement, as well as by virtue of a costs order.

Indeterminate Sentences

Lord Stewart of Dirleton Excerpts
Monday 29th April 2024

(3 weeks ago)

Lords Chamber
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Lord Moylan Portrait Lord Moylan
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To ask His Majesty’s Government how many (1) women, and (2) persons who were under 18 years of age when their index offence was committed, are serving an indeterminate sentence for public protection and have never been released on licence.

Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, as of December 2023, there were nine women serving an IPP sentence and 33 prisoners serving a detention for public protection sentence, who are in custody having never been released on licence. The IPP action plan aims to promote sentence progression for all those serving the IPP sentence. Provisions in the Victims and Prisoners Bill will give more offenders the opportunity to have their sentences terminated, so that they can move on with their lives.

Lord Moylan Portrait Lord Moylan (Con)
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My Lords, I congratulate the Government on having achieved some reduction in these numbers over the last two years, although noble Lords will, in some cases, still be surprised that there are women serving IPP sentences who have never been released and that there are people who committed their crime aged under 18 who have never been released; the majority of the latter are now 10 years or more over their tariff. In that light, does my noble and learned friend agree that while it is perfectly reasonable to have a Parole Board public protection test for prisoners serving a definitive sentence, since they will be released into the community at the end of their sentence, it is less appropriate for IPP prisoners, as the alternative for them is remaining in custody indefinitely, potentially for decades more? Should not this test, advanced in the current Bill, be modified for IPP prisoners?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, the IPP action plan, which the Government have promulgated, remains the best vehicle to deliver support to all IPP and DPP prisoners, so that they can progress towards a safe release—safe for them and for the community into which they will be released. The IPP action plan provides continued focus on supporting those serving IPP and DPP sentences in custody and in the community, ensuring that each has an effective sentence plan tailored to their individual needs by supporting those in the community on licence to comply with their conditions.

Lord Woodley Portrait Lord Woodley (Lab)
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My Lords, I am delighted to follow the noble Lord, Lord Moylan, in his crusade for justice for these prisoners. The Government rejected resentencing of DPPs and IPPs, as the Minister knows, arguing that the Parole Board has consistently not backed these prisoners so therefore they should just lie in prison and rot there. However, the former head of the Parole Board, Martin Jones, now the Chief Inspector of Probation, is one of many experts calling for resentencing to end the nightmare injustice of imprisonment without end. What is the Government’s real reason for rejecting resentencing? Is it because they do not want to be seen as soft on crime ahead of a general election?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, it is not the case that the Government are acting out of that reason—the position on resentencing has been rejected twice by the Government at different times. Instead, we take the view that as there is a public protection aspect to these sentences, it is apt that they continue to be treated in the current way. I reject the noble Lord’s proposition that people are being left to “rot” in prison. The action plan has achieved the extension of the scope of the psychology services so that they can continue to support some of the more complex IPP cases. The safety team in HMPPS has developed and issued a safety toolkit concentrating on the needs of IPP prisoners and HMPPS has also commissioned new IPP delivery plans to roll out in May 2024. The Government are not inactive in this area.

Baroness Burt of Solihull Portrait Baroness Burt of Solihull (LD)
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My Lords, these 33 DPPs referred to by the Minister are 33 people who have never had a shot at adult life in the community. They are all well past their original tariff, as the noble Lord, Lord Moylan, said, and passing one’s tariff date is a time when mental health often drops off a cliff edge. Does the Minister agree that we should give them the same kind of holistic and multidisciplinary wraparound care that Section 117 prisoners get to help them get through the gate and out into supported life in the community?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, provision of just such multidisciplinary approaches is precisely what the Government are accomplishing in their approach to these people. I fully accept the noble Baroness’s considered point that persons who have not experienced freedom will suffer extreme and acute mental health difficulties from time to time. With that in mind, I can advise the House that the Government remain committed to improving outcomes for individuals with mental health needs, including such IPP prisoners. The IPP safety team has devised a dedicated safety briefing. A special IPP toolkit has been issued so that persons dealing with such prisoners across the level of the prison system can concentrate on their needs. There is also a national partnership agreement on health and social care in England, published in 2023, which sets out a shared priority work plan to deliver safe, decent and effective care, improving health outcomes for people in prison and on probation. To conclude, I congratulate the noble Baroness, my noble friend and all noble Lords on their concern for this often-overlooked group of prisoners.

Lord Bishop of Lincoln Portrait The Lord Bishop of Lincoln
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My Lords, recently in Lincoln prison I met a man who has been continuously in the prison system for the last 48 years—since I sat my A-levels. He is not mentally ill in any obvious way. He told me that he keeps sane by keeping God between himself and the other prisoners—that was the gist of what he said anyway—but that he is so socialised by being in prison for so long that he has almost forgotten what he was in there for. He asked that if he were to be released could there be specialist units in nursing homes where there would be the proper care for someone who has not known freedom in his entire adult life?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, the right reverend Prelate’s example will strike a chord with noble Lords across the House and engage their sympathy. The work the Government are carrying out to establish psychology services is, as I said, multidisciplinary in nature and involves not only expert psychologists but dedicated probation officers, specialists in their field and those who have looked at the problems of suicide in prison. We are working in particular with a group called UNGRIPP and a Mrs Donna Mooney, who has done great work in this field. We are engaged with the Howard League for Penal Reform. There is also a commitment to working with the Samaritans to provide further assistance for persons coming out of the prison estate.

Lord Hastings of Scarisbrick Portrait Lord Hastings of Scarisbrick (CB)
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My Lords, do the Government not feel ashamed of the obvious injustice of the continuing 16,000 former IPP residents in prison who are still on IPP sentences? This is a gross injustice that lingers in people’s lives, who are in a place of permanent panic and unable to get on with their day-to-day existence because they are looking over their shoulder, wondering whether they be tapped for a recall. In the past 10 years I have visited 73 prisons up and down the UK and met hundreds of IPP people inside prison, and I have not encountered a single one who was not worthy of release tomorrow. The system is so badly broken. It needs a kind of approach that we had for the Post Office that clears out the residue of this long, unjust sentence, which was described as a great evil by two former Home Secretaries.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, the number of IPP prisoners are down to 1,312 as of 30 June 2023, from a maximum of 6,000. I hear the noble Lord’s views on the worthiness for release of those whom he has met, but it is not something which can be consigned to an individual; it is a matter for consideration by persons holding a wide range of specialisms and experience. I do not share the view that the Government should be ashamed of their response. The latest review by the inspectorate found that His Majesty’s Prison and Probation Service is taking “proportionate” and “necessary” decisions to recall offenders on an IPP licence for public protection.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, to be clear, the Labour Party does not support the resentencing of IPP prisoners. Our view is that it would put the resentencing judges in an impossible situation when there have been multiple recent reviews of those IPP prisoners. Nevertheless, the Government constantly tell us that there is a review of the sentencing plans for those IPP prisoners. Can the Minister tell us how many of the IPP prisoners have had their sentencing plans reviewed?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, I cannot provide the noble Lord with that information directly, but I will be able to do so in a very short space of time. I gratefully acknowledge the statement he gave on behalf of his party relating to the approach that has been proposed of resentencing such offenders. His views are at one with those of His Majesty’s Government.

Litigation Funding Agreements (Enforceability) Bill [HL]

Lord Stewart of Dirleton Excerpts
Moved by
Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton
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That the Bill be read a second time.

Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, the Litigation Funding Agreements (Enforceability) Bill will fulfil the Government’s commitment to address the impacts of the United Kingdom Supreme Court’s judgment in the case of the King on the application of PACCAR Incorporated and others v Competition Appeal Tribunal and others. The reference for the case is 2023 UKSC 28. It was handed down in July 2023. This case is colloquially known as PACCAR, taking the name of the lead applicants in the case.

First, I will address the judgment in question. It arose out of a claim against truck manufacturers regarding anti-competitive behaviour. The Supreme Court ruling rendered many third-party litigation funding agreements—LFAs—unenforceable by bringing them into scope of the regulatory regime for damages-based agreements, or DBAs. For the sake of brevity, I will refer from time to time to these vehicles by their initials.

The Supreme Court ruling has had a detrimental impact on access to justice and the attractiveness of this jurisdiction as a global hub for commercial litigation and arbitration. This is an important sector for the United Kingdom and so we must act now. Put simply, the Bill will restore the position that existed before the Supreme Court ruling in July 2023, which was that LFAs are not DBAs and hence are enforceable.

It will accomplish this by amending the definition of a DBA in Section 58AA(3)(a) of the Courts and Legal Services Act 1990. It will also ensure that claimants can continue to access litigation funding to bring big, complex cases against larger, better-resourced corporations which they could not otherwise afford.

The restoration of the previous funding position is needed urgently to reduce uncertainty for both the future of litigation funding and for LFAs that had been entered into previously. By rendering many existing LFAs unenforceable, the position post judgment risks undesirable satellite litigation, an increased burden on the courts, and creating an unfavourable market for litigation funding, which, in turn, threatens access to justice. I will go on to explain in more detail how the Bill operates, but first will address why it matters.

Third-party litigation funding plays a key role in enabling ordinary people and small and medium-sized enterprises to bring large, costly claims against better-resourced companies and institutions. Litigation funding agreements involve a third-party funder, typically an independent financial institution. The funder finances all or part of the legal costs of a claim, in return for a share of any damages awarded. Third-party litigation funding is a niche market, which operates typically in high-value commercial, arbitration or group litigation claims, including the types of claims brought in the Competition Appeal Tribunal.

A recent example of where an LFA was used is the Post Office Horizon case—Bates v the Post Office—which had the backing of a litigation funder. Some other examples of cases where LFAs have been used include equal pay cases; motorists bringing claims against car manufacturers over false diesel emissions; and consumers bringing claims against multinational companies regarding data breaches and data misuse.

In the United Kingdom Supreme Court judgment in PACCAR, the court held that LFAs between claimants and litigation funders which entitle the litigation funder to payment based on a percentage of the damages recovered from the losing party are DBAs—damages-based agreements—as defined in Section 58AA of the Courts and Legal Services Act 1990. The principal problem is that LFAs which fall within the definition of DBAs are subject to, but generally will not comply with, the DBA Regulations 2013, as was noted in the PACCAR judgment. As such, those LFAs are rendered unenforceable against the claimant.

For many claimants, LFAs are not just an important pathway to justice; they could be their only route to redress against well-resourced corporations with deep pockets. I have no doubt that all noble Lords will have been moved by the plight of the sub-postmasters affected by the Horizon scandal, and their impressive campaign for justice. It is just one example of the importance of third-party litigation funding. Alan Bates himself has noted that, as things stand today, since the Supreme Court judgment, the sub-postmasters would not be able to bring their claim had it arisen. That is why we must remove the risk and return to the position preceding the July 2023 judgment: promoting access to justice for ordinary people by making sure that it is not the preserve only of big business, powerful institutions and the moneyed few.

The new legislation, which will apply to all proceedings, will allow the Government to deliver a return to a funding regime which promotes access to justice, as well as enhance the competitiveness of the jurisdiction and the attractiveness of a thriving United Kingdom legal sector which contributes over £34 billion per annum to the UK economy.

I return to how the Bill achieves this. The Litigation Funding Agreements (Enforceability) Bill provides that LFAs are not damages-based agreements. It should be noted that the legislation applies and extends to England and Wales only. This restores the position in place before the July 2023 judgment, making affected LFAs enforceable once again and enabling ongoing and future claims to continue to be funded by LFAs.

The Bill contains two clauses. Clause 1 amends Section 58AA of the Courts and Legal Services Act 1990. Subsection (2) amends the definition of a DBA to provide that an agreement, to the extent that it is an LFA, is not a DBA. Subsection (3) defines an LFA for the purposes of section 58AA of the 1990 Act. Subsection (4) provides that the amendments are to be treated as always having had effect. The amendment only addresses the Supreme Court’s finding that LFAs are DBAs and does not seek to reverse the finding that litigation funders provide claims management services.

Clause 2 explains the extent, commencement and short title of the Bill. Subsection (1) provides the territorial extent of the Bill, expressing that the Bill extends to England and Wales only. Subsection (2) provides the commencement provision for the Bill. The Bill will be commenced upon the day of its passing. Subsection (3) gives the shortened title by which the Bill can be referred as upon passing. This is described as the Litigation Funding Agreements (Enforceability) Act 2024.

The Bill will have retrospective effect. The legality and propriety of the proposed retrospection, including its compatibility with the European Convention on Human Rights, has been considered carefully. The Bill will achieve the important policy objective of preserving the rights of individuals to challenge alleged breaches of the law. Access to justice is an essential component of the rule of law. If the Bill were prospective only, there would be uncertainty as to the enforceability of agreements entered into before the PACCAR judgment but where the claim is concluded after the Act comes into force. This could lead to undesirable satellite litigation, which would benefit no one.

Retrospective effect will also ensure that the contractual rights and obligations agreed under LFAs entered into before the Supreme Court’s judgment continue to have effect as intended. Early commencement will minimise the period of retrospection. These provisions will remove any uncertainty about the enforceability of LFAs in cases that have settled and enable litigation funders to continue to fund cases, including existing cases.

On retrospective effect, the noble Lord, Lord Macdonald of River Glaven KC, has raised a number of points for the Government to consider. I also acknowledge the engagement which I have had with my noble friend Lord Hodgson of Astley Abbotts in relation to wider risks which may arise in some circumstances out of third-party litigation funding. I first thank the noble Lord, Lord Macdonald, for sharing his expert views, and assure him that the Government will consider them in due course. In relation to the useful engagement which I have had with my noble friend Lord Hodgson, I will come on to discuss the ambit of a review of the matter which the Government have ordered.

There are a wide variety of views about litigation funding arrangements and how they should work. That is why, alongside legislative change, the Lord Chancellor has asked the Civil Justice Council—which is the body for overseeing and co-ordinating the modernisation of the civil justice system in England and Wales, under the chairmanship of the Master of the Rolls—to undertake a review of the third-party litigation funding market in England and Wales.

The review will consider questions raised during the discussions on the PACCAR judgment, including in your Lordships’ House, such as the need for greater safeguards for claimants, regulation of the sector and the possibility of caps on the returns made to funders. The CJC will publish its terms of reference and other related documents shortly. An interim report is due by this summer—2024—and a final report by the summer of 2025. The Government will consider the way forward following that final report.

By acting swiftly to restore the previous funding position via legislation, and investigating whether that position can be enhanced through a longer-term, forward-looking review, the Government will restore and improve a vital avenue to justice for all deserving claimants, not just those with the most resources. I submit that this is a much-needed Bill to address an important issue affecting access to justice. I beg to move.

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Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, I am grateful to all those noble Lords who participated in this debate. I am grateful in particular to the noble Lords, Lord Ponsonby of Shulbrede and Lord Marks of Henley-on-Thames, from their Benches, for the broad support they are giving. But if a financial metaphor is not inappropriate in the circumstances, I do not take either of them to have issued the Government with a blank cheque as far as this legislation goes. If your Lordships are minded that a Committee of the whole House should be established to consider this Bill, as I will move, I look forward to your contributions, and those of the whole House, in giving the Bill the scrutiny it deserves.

The noble Lord, Lord Mendelsohn, opened the responses and in many ways set the parameters for the interesting debate that followed, setting up the question of access to justice and stressing from a historical perspective the medical legal cases arising out of the condition known as vibration white finger. That prompted me to recollect the importance of associations such as trade unions and others in providing legal assistance for their members when entering into costly litigation relating to the safety of the workplace.

It is quite correct that funding litigation is frightening for individuals and smaller companies who are contemplating it in defence of their right. It is for that reason that the Government have put forward this Bill to address the consequences of the PACCAR ruling. Legal Members of your Lordships’ House touched on that question, in particular the noble Lord, Lord Carlile of Berriew, and my noble friend Lord Wolfson of Tredegar. The noble Lord, Lord Carlile, referred to the surprising character of the judgment. Certainly, it took lots of people in the profession by surprise. It is to deal with the consequences of that decision that the Government tabled the Bill. I respectfully endorse the characterisation of the dissenting judgment by Lady Rose, which was put forward by the noble Lord, Lord Trevethin and Oaksey, as a powerful one.

The noble and learned Lord, Lord Thomas of Cwmgiedd, in a characteristically thoughtful analysis of the position, set forth what is accepted across the House with one exception—that there is no real alternative to funding of this sort in the litigation landscape as we currently find it. I do not wish to depress the House by saying that legal aid is dead. On civil cases in England and Wales, legal aid can be provided as an exceptional case funding measure, for matters out of scope where the failure to provide legal services would breach or likely breach a person’s ECHR rights. Where a matter is within legal scope or could be caught by exceptional case funding, the applicant must also pass a means and merits test.

The Ministry of Justice published the Government’s response to the means test review consultation exercise on 25 May 2023. That set out the detailed policy decisions underpinning the means test arrangement. The Government assess that their changes will increase the number of people eligible for civil legal aid in England and Wales by 2.5 million. Therefore, although there are concerns from Members across the House—particularly the noble Lords, Lord Mendelsohn, Lord Marks of Henley-on-Thames, Lord Trevethin and Oaksey, Lord Meston and Lord Carlile of Berriew, and my noble friend Lord Wolfson of Tredegar, and while legal aid will remain an important feature of how access to justice is delivered, it is the view of the Government and I think of the debate overall that we must take steps to address the necessity of third-party funding to permit access to justice for the sorts of persons, organisations and corporations which I have described.

The very interesting contribution by the noble Lord, Lord Trevethin and Oaksey, anticipated me in referring to the decision of the American judge who said that the alternative to class actions funded by funders of this sort was not 17 million individual actions but no actions at all because, as the noble Lord quoted, and as I am happy to repeat, only a lunatic or a fanatic would litigate over $30. The noble Lord also, along with my noble friend Lord Arbuthnot, put before the House a quote from “The Italian Job”. I wonder whether that is the first occasion when that particular work has been referred to in your Lordships’ counsels.

Both noble Lords—and my noble friend Lord Arbuthnot spoke with the immense moral authority that he carries with him as a result of his selfless and tireless work on behalf of the sub-postmasters—made important points about access to funding for litigation. As I quoted in opening the debate, the eponymous Mr Bates has referred to the importance of third-party litigation funding in enabling the process by which justice is arrived at to commence.

The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to the manner in which, as all of us common lawyers know, definitions or concepts of enormous importance across the whole mighty edifice of the common law world can emerge from the least important-sounding or most apparently trivial causes, whether it be snails emerging from bottles of ginger beer in cafés in Paisley or other areas in which matters of huge import for the civil common law have arisen from small-scale disputes between parties.

All the noble Lords were united in their concern about the sums ultimately received by litigants and the potential sums realised by litigation funders. The best vehicle for discussion of this point will be the review by the Civil Justice Council to which reference has been made, but it is a problem of which the Government are acutely conscious.

I am grateful too for the contribution to the debate made by my noble friend Lord Wolfson of Tredegar and for his informed engagement with me at an earlier stage, to which he was good enough to refer your Lordships—an earlier stage before I rose to address the House this afternoon. I am grateful to him for his analysis of the concept of retrospection in legislation, as I am for his endorsement of the constitutional position in relation to Parliament being responsible for making law.

My noble friend Lord Sandhurst referred to the importance of maintaining a situation where defenders are not unduly harassed by litigations funded by third-party funders, and he was quite correct to make that point. I am sure that this is something that the review being carried out under the chairmanship of the Master of the Rolls will consider.

A number of specialist points were made during the debate. In relation to a series of questions posed by the noble Lord, Lord Marks of Henley-on-Thames, I look forward to engaging with the points that he made. In the first instance, I will write to him in relation to those specific points with which he concluded his submission, and I would like to do so against the basis of an understanding of the terms of reference of the forthcoming review. In relation to him and to the point echoed from the Opposition Front Bench by the noble Lord, Lord Ponsonby of Shulbrede, as your Lordships heard from me in opening, an interim report is expected in the summer; the terms of reference under which that report will be carried out will be published in due course.

The noble Baroness, Lady Jones of Moulsecoomb, expressed herself as suspicious of everything that comes out of the Government. I have to echo that by saying I am suspicious of everything that comes out of the Green Party. After all, I have to live in Scotland where we see the effects of government by the Green Party, and they are absurd where not actively malign.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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I am sorry for intervening. It is a separate Green Party. It actually disaffiliated itself because of me, and I feel strongly about it.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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As always, the noble Baroness has fulfilled a valuable public service.

On the question from the noble Lord, Lord Meston, on the scope of the Bill, the view of the Public Bill Office confirms that this is a one-purpose Bill. Its scope is closely connected to the enforceability of litigation funding agreements and the Public Bill Office does not think that amendments relating to the wider category of damages-based agreements would be in scope, nor would more general issues relating to litigation funding. Again, I would be happy to revert to the noble Lord with further details on those points, as I learn them.

The noble Lord, Lord Meston, along with my noble friend Lord Sandhurst and the noble Lord, Lord Trevethin and Oaksey, also posed a question on the revision of the current DBA regulations. The Government will consider the timetable to make improvements to the DBA regulations without encouraging unnecessary litigation. Any revisions to the current regulations will be subject to a statutory consultation, which is set out in Section 58AA of the Courts and Legal Services Act 1990, and to an affirmative resolution, which is set out in Section 120 of the 1990 Act.

I apologise to any noble Lords whose valuable contributions to this interesting debate I may have overlooked. To sum up, I gauge the mood of your Lordships’ House as one of concern that access to the courts, the reputation of which the House is jealous of and grateful for, should not be artificially constrained. I also recognise noble Lords’ concerns that access to justice on behalf of a less well-funded party or individual should not come at the expense of excessive profits for those responsible for funding. In my own jurisdiction of Scotland, it is a matter of daily encouragement and inspiration to enter Parliament Hall in Edinburgh and pass the portrait of a notable lawyer, of whom it was said after his death that, while he lived, no poor man in Scotland wanted for a good lawyer. It is the aspiration of the whole House that that should apply today as much as it did in previous centuries. I hope that, ultimately, the Bill passes and that the House, as a whole, accepts that it is done with the intention of furthering that aspiration.

Bill read a second time and committed to a Committee of the Whole House.

Prisons and Probation: Foreign National Offenders

Lord Stewart of Dirleton Excerpts
Wednesday 13th March 2024

(2 months, 1 week ago)

Lords Chamber
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Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames (LD)
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My Lords, this 11-page Statement contains a series of self-congratulatory assertions from the MoJ on everything from falling crime, longer sentences, new offences and deporting foreign national offenders to the response to the pandemic. The noble Lord, Lord Ponsonby, has pointed out the weaknesses in some of those assertions. But there is one thing in this Statement that is new. Buried on page 9 is the obscure passage:

“We will also extend the existing end-of-custody supervised licence measure to around 35 to 60 days. We will enable that to happen for a time-limited period and work with the police, prisons and probation leaders to make further adjustments as required”.


What a masterpiece of obfuscation.

On 16 October last, the Government announced their plan to allow up to 18 days’ early release, for a limited period, to meet what they called “acute and exceptional demand”. That period has now been extended indefinitely and, subject to further adjustment in future, to allow for early release between 35 and 60 days before scheduled release dates. This announcement betrays the panic in government that it has simply run out of prison spaces—and the crisis is going to get worse.

We now have a prison population of 88,220 on last Friday’s figures, against a maximum operational capacity of around 85,000 men and 3,300 women. The Daily Telegraph reports that there are just 238 male and 118 women’s places unfilled. Those figures exceed a far lower design capacity of 79,507, less than the MoJ’s certified normal accommodation of 80,000. Furthermore, the few unfilled places are dotted around the prison estate, so prisoners are shuffled from prison to prison, impacting on education and training, community contacts, family visits and relationships with staff and other prisoners. Can the Minister provide figures for the extra prison transfers caused by place shortages since last October’s Statement?

Then we have other harmful measures, such as the use of police cells for holding prisoners in custody. Will the Minister write to us with the statistics for the use of police cells for prisoners since the October Statement? Then there are the temporary prefab extra cells. Will he say what extra facilities for exercise, training, education and even eating have been provided for the increased numbers in the affected prisons? Then there are inevitably unexpected disasters, such as the discovery of radioactive gas at Dartmoor and the enforced closure of 184 cells between November and February.

The 10,000 new places by next year and 20,000 new places long term have been on the table for ages but, even if they all work out, they hardly scratch the surface. Increased sentences and increasing time served, loudly trumpeted in this Statement, serve only to increase the prison population, which is predicted to rise by March 2028 to a central estimate of 105,800, an increase of roughly 17,000. Will the Minister explain the maths?

Five Wells and Fosse Way, with a total capacity of 3,600, are already open and so are included in present capacity. Are they double-counted as part of the 10,000 due this year, mentioned in the Statement? Millsike in Yorkshire will open later this year and will have a capacity of 1,500. As to the remaining 10,000 places, not a brick has been laid and none is likely to be available until some time between 2027 and 2030. Gartree in Leicestershire, with a capacity of 1,700-odd, has outline planning permission but the detail has yet to be approved. Grendon in Buckinghamshire, with a capacity of 1,500-odd, has only just been approved by the Levelling Up Secretary. In Lancashire, the new prison in Chorley for 1,700 is the subject of a planning appeal which has not even commenced.

There was a consultation in 2021 about two possible new prisons at Wethersfield, near Braintree in Essex, but the MoJ says that no decision has yet been taken. Please will the Minister tell us more about the planning progress for these prisons? When is building predicted to commence? When might they open, and with how many places? Where is the budget? Have I left anything out? Again, will he please explain the maths and the figure of 20,000 for the promised new places?

Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, in order to respond to the points made by the noble Lords, Lord Ponsonby of Shulbrede and Lord Marks of Henley-on-Thames, it is as well that the House reminds itself of the background against which the Government are acting: the unprecedented circumstances of the Covid pandemic. During that time, extraordinary pressure was placed on our justice system and the Government took certain difficult—but, as it turned out, wise—decisions in relation thereto.

Recognising the importance to our judicial system, to our system of justice, of jury trials, we did not suspend them. Recognising the importance of custody as one of the tools in our penal system, we did not introduce wholesale release of prisoners, as happened in other states, such as France, where 12,000 people were released from prison, I believe. Factor into that the action taken by members of the Bar in relation to their salaries, and we are in a situation where we have unprecedented strain on the system, which the Government are now seeking to work through.

That is the background to the steps that the Government are taking, bearing in mind at all times their principal desire to protect the public and to cut crime by taking dangerous criminals off the streets. That is the Government’s intention, and the noble Lord, Lord Marks of Henley-on-Thames, in reference to the Statement, quoted the figure of 20,000 additional prison places. The figures are indeed stark, as both noble Lords pointed out to the House. As a result of the factors that I have mentioned, both the remand population and the recall population in prisons in England and Wales have risen.

The Government’s response to this has been to push ahead with a programme amounting to the largest expansion of the prison estate since Victorian times, with 10,000 of the additional places to be delivered by the end of 2025—of which 5,900 have already been delivered. In addition—again, I recognise the questions from the noble Lord, Lord Marks, about facilities for prisoners—short-term measures have been put in place across the prison estate to expand capacity by the equivalent of around 2,000 places since September 2022. That has involved measures that would otherwise be considered undesirable, such as the doubling up of cells and the delay of non-urgent maintenance work, but the point is that these have been taken as temporary measures in relation to these unprecedented circumstances.

Noble Lords from both Front Benches referred to foreign national offenders. As the House has heard, last October, and again with a subsequent announcement this month, a series of measures has been announced to ease the pressure, including deporting more foreign national offenders and moving some lower-level offenders on to supervised licence up to 18 days before their automatic release date. In addition, our Sentencing Bill will help cut reoffending rates by creating a presumption that custodial sentences of less than 12 months will be suspended.

The work the Government will carry out includes tabling an amendment to the Criminal Justice Bill to extend conditional cautions to foreign national offenders with limited leave to remain; amending deportation policy so that foreign national offenders given suspended sentences of six months or more, up from the current 12 months, can be deported; expediting prisoner transfers with priority countries such as Albania, the country with the largest individual component within the 10,000-plus foreign national offenders currently in our prisons; concluding new transfer agreements with partner countries such as Italy; radically changing the way in which foreign national offenders’ cases are processed, creating a new task force and allocating 400 more caseworkers to prioritise these cases and streamline the process of removal.

I think it was the noble Lord, Lord Marks, once again, who referred to the end-of-custody supervised licence provisions. I have a number of observations to make on that. It is clear, in my submission, that further action is needed in the short term, and in order to do that, as the House has heard, there has been a programme to increase the number of days some lower-level offenders could be moved from prison and on to licensed conditions in the community before their automatic release date. As the House has heard, this will be increased to around 35 to 60 days. This will take place for a limited period, again recognising the current extraordinarily acute pressures on the system. We will work with the police, the prisons and probation leaders to made adjustments as they are needed.

I emphasise that this remains a temporary, targeted measure aimed at anyone convicted of serious crimes, such as crimes of a sexual nature. By “serious”, I do not necessarily confine myself to seriousness in terms of sentence; there is seriousness in terms of impact. I am looking also at people convicted of stalking offences and at domestic abuse cases, not just their seriousness to individual victims but to the community at large. These will not be affected, and those who break the rules imposed will face a return to jail.

We are conscious also of the impact our changes may have on probation, so on top of the extra £155 million a year being put into the Probation Service, from April we will reset probation so that practitioners prioritise early engagement, at the point at which offenders are most likely to breach their licence conditions, allowing front-line staff to maximise supervision of the most serious offenders. In many ways, this will simply instrumentalise a process that already happens quite naturally: if a person appears to be making good progress and satisfies those responsible for his management that that is the case, it is right and proper, I submit, that their attention should be focused on persons more in need of support, rather than having support spread out across the full period of somebody’s licence. That, I submit, will permit the maximisation of supervision and the most effective use of resources and time.

Reference was made to the use of police accommodation under a system known as Operation Safeguard, which is a matter of permitting police cells and other accommodation of that nature to be used in order to address acute capacity pressures caused by the barristers’ strike, building upon the pandemic. Across the country, 163 cells were available under Operation Safeguard, and His Majesty’s Prison and Probation Service has the authority to activate a further 200. The background to that is in relation to custody of persons being moved from location to location in order to attend court.

Other developments in hand include the rolling out of a national scheme to consider bail applications and to consider the balance as to whether bail or remand is the appropriate disposal in relation to somebody awaiting trial.

A question was posed as to the change in the point of release from 18 days up to between 35 and 60. As the House has heard, a similar scheme was operated in 2007. That scheme was different, and the early ECSL—end-of-custody supervised licence—scheme that is being introduced has a range of safeguards. The scheme operating between 2007 and 2010 released some people straight into the community without any supervision and led to the early release of some prisoners convicted of terror offences. Naturally, it is appropriate that fresh provisions look to such lessons as might be learned from previous schemes, and seek to build upon and correct them. I submit that the ECSL scheme that has been announced is different. Everyone is being moved on to supervised licence with strict conditions, including tags and curfews where necessary. The 2007 to 2010 scheme led to more than 80,000 prisoners being released; by contrast, the ECSL scheme is talking about a small proportion of people who are being moved on to supervised licence. Reflecting the concerns that I know are shared across the House about the impact on victims, complainers in crime who are perhaps affected or concerned by the possibility of release, if they have signed up to the victim contact scheme, they will be notified about an offender’s release where that takes place under the ECSL scheme.

In addition, I will say something about the resources being invested. As I think the noble Lord, Lord Marks, said, some 400 probation officers have applied—that exceeds the recruitment target the Government had in place over the years 2020-21 and 2022-23. I submit that that is a significant number. In addition, a sum of £53 million will fund more than 200 new bail information officers who will support the courts in reaching decisions as to bail and remand.

I think mention was made of the bail accommodation scheme, which provides temporary accommodation for individuals released from prison on home detention curfew, and provides a secure community-based alternative to remanding an individual in custody. I can speak from professional experience of the dreadful consequences that can follow from a person being released unexpectedly from custody into liberty where inadequate provisions are made for that person’s readmission into society by way of accommodation and support, or where no steps have been taken to prepare that individual, or to provide for him or her the physical needs of accommodation, food and money.

In those circumstances, each of the buildings in the bail estate houses up to four people, and residents are supported by visits to provide support and to address any wider issues. There is female-only accommodation, supported by CCTV, and funding is available that will be expanded across the remainder of the estate over the next six months.

The overall intention of the Government is to address this backlog that has grown up—this increasing strain on the resources of our criminal justice system—by additional cash, an increase in resources and, by that, an increase in the number of prison places to be made available over the next few years. As I say, the ambition is 10,000 new places—of which 5,900 are already in place—by 2025.

I was asked a number of very specific questions by both noble Lords who have opened for the Front Benches. I am very conscious of the fact that I have not provided detailed, specific, numerical answers to certain of the questions put to me, but officials are in the Box. If noble Lords are content, I will either correspond myself or, more likely, my noble and learned colleague Lord Bellamy, who is the Minister in the Ministry of Justice, will correspond with noble Lords, in an endeavour to give them answers which they will consider satisfactory to the questions they posed.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, I have two specific questions. The first point is that the early release scheme will put an additional burden on the Probation Service. The noble and learned Lord quoted the £155 million which was first raised in 2021. Can he confirm that there is no specific additional money for this additional work by the Probation Service as a result of yesterday’s Statement?

The second question is more wide-ranging. I wrapped up my contribution by pointing to the £0.5 billion cut in next year’s justice budget. As I said, the Government are keen to trumpet the extra spending. How are those two numbers reconciled, between the cut in the budget and the extra spending that the Government have just announced?

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Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I am grateful to the noble Lord for clarifying certain of the remarks that he made initially and putting them down into two specific questions. I regret to say that they fall within the category of information which I have sought but do not readily have available. So, with the noble Lord’s leave, I will correspond with him on that matter.

Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames (LD)
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My Lords, may I clarify one point? First, I am very grateful for the indication that we will have in writing the specific answers to the specific questions we asked, but I make it clear that we regard it as of great importance to clarify the numbers of prison places against the projected increase in the prison population, on the Government’s own figures and in light of the measures that have been introduced, increasing time served and sentences. The significance of that is to test whether the places on tap will be enough to match the increase in the projected prison population. If those answers could be given specifically, I would be very grateful.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I hear what the noble Lord has said. He makes a series of good points and we will write to him on those. I will ensure that those specific matters feature in the letter.

House adjourned at 9.24 pm.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Stewart of Dirleton Excerpts
Lord Coaker Portrait Lord Coaker (Lab)
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I hesitate to stand up, looking around. We very much support Amendment 33 from the noble Baroness, Lady Chakrabarti. If she wishes to test the opinion of the House, we will certainly support her.

I just say to the noble Lord, Lord Murray, in defence of the Select Committee system, that sometimes there are differences of opinion on Select Committees. However, it is a really important point of principle about Parliament that reports from Select Committees, both in this and the other place, are hugely respected, even when there is a division of opinion. We need to be careful about suggesting that a chair of a Select Committee has come to an opinion because of their party-political allegiance. That is a difficult point to make. In my experience, chairs of Select Committees of all political parties have sometimes made very difficult decisions and come to very different conclusions from those of the party of which they are a member. That important point of principle underpins our democracy, and we need to be careful about suggesting that the chair of a Select Committee has been openly influenced by party-political allegiance to come to a particular conclusion. Going down that route is dangerous.

The point about this, as my noble friend Lady Chakrabarti outlined, is to try to give immigration decision-makers the opportunity to see whether a particular decision is able to be challenged in the courts and whether an individual’s rights need to be protected. My view is that this is of course about the rule of law, but the courts are there to ensure that justice is done. Justice in this case requires the ability for the law, as it impacts an individual, to be tested in the courts. That strikes me as fundamental to how the rule of law operates.

As the noble Viscount, Lord Hailsham, said, sometimes that is really inconvenient to Governments. Sometimes it is really convenient to all of us. Justice is an important part of our democracy and goes alongside the rule of law. I just say to my noble friend Lady Chakrabarti that I think that is what her Amendment 33, supported by others, seeks to do and why we would support it.

Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, this was a brisk debate that touched on a number of very important points. The noble Baroness, Lady Chakrabarti, in opening, developed her point with admirable concision, which I fear I will be unable to match in responding. None the less, in answer to her points relating to the protection of claimants—the same point raised by my noble friend Lord Hailsham from our Benches—we say that those protections are to be found in the Bill and the treaty and the mechanisms which they set up.

My noble friend challenged us on three specific points. He first said that, in his belief, the judiciary can be more robust in the way that it treats unmeritorious claims. Respectfully, I agree and I do not suppose that anyone in the Chamber would disagree. My noble friend went on to say that it is dangerous to exclude persons who are within the jurisdiction of our courts from their jurisdiction. In the special circumstances with which this Bill is concerned, I consider that the protections of such persons as are involved through the scheme of the Bill are guaranteed adequately by our arrangements with the Republic of Rwanda and the oversight that we have in place.

My noble friend went on to ask whether the policy was likely to achieve the aim of deterrence that we have sought with the Bill. He quite properly rehearsed his view to the House that he thought that it was unlikely to be the case. All I can say in response is that, for the reasons set out by my noble friend Lord Sharpe of Epsom, I beg leave to disagree.

My noble friend Lord Inglewood posed the question of whether it is government policy to look at each individual case. In relation to that, I refer him to Clause 4 of the Bill, which permits decisions based on the individual circumstances of particular applicants.

The noble Baroness, Lady Jones of Moulsecoomb, accused the Government of extremism and authoritarianism. I detect gratitude on the part of noble Lords on the Opposition Front Bench that, unlike on Monday, her fire was directed at the Government principally, instead of at their party. But she returned to the attack that she mounted on Monday. I disavow any suggestion that the Government are motivated by either extremism or authoritarianism.

There was another brisk debate involving the noble Lord, Lord Cashman, and the noble Baronesses, Lady Kennedy and Lady Lawrence, and my noble friends Lady Meyer and Lord Murray of Blidworth on these Benches. The conclusion, or the final submission in relation to that debate, was given from the Cross Benches by the noble Lord, Lord Anderson of Ipswich. I accept that noble Lords, having informed themselves by travelling to Rwanda and considering the position on the ground, have reached contrary views. The noble Lord, Lord Anderson of Ipswich, invited us to consider that the appropriate forum for discussion and consideration of these points is the courts. His Majesty’s Government begs to disagree: we find appropriate protections for claimants in the arrangements made for supervision by officials in real time via the structures set up in the Act to examine Rwanda’s compliance with its obligations. As we have heard in previous debates, one of the core principles that the Bill is seeking to address is to limit challenges that can be brought against the general safety of Rwanda.

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Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
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Have the procedures required under Article 10.3 of the treaty to ensure that refoulement does not take place, as it did in the Israeli case, yet been devised?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, the Israeli case to which the noble Lord, Lord Kerr of Kinlochard, referred was—I make this point first—a completely different circumstance from the provisions set out in our Bill and the accompanying treaty. I will have to revert to the noble Lord on the specific point he raised, which is whether those procedures are in place as yet, or whether they come under the context of those to which I made reference—whether they are being worked up and implemented. If the noble Lord is content with that answer, I will correspond with him. I am grateful to him for indicating assent.

As I was saying, we will ratify the treaty only once we are satisfied that all necessary implementation is in place, and the treaty will be expedited. As I was saying in relation to the noble Lord’s point a moment ago, we continue to work with the Rwandans on this. As we set out to the House on Monday—

Baroness Butler-Sloss Portrait Baroness Butler-Sloss
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If the treaty has to be agreed and the Government have to be satisfied, how can they expect us to recognise that Rwanda is at present safe?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, I think, with respect to the noble and learned Baroness, that that point has been canvassed extensively on previous occasions.

As we set out on Monday, the legislation required for Rwanda to ratify the treaty passed that country’s lower house on 28 February, and it will now go to that country’s upper house. Once ratified, the treaty will become law in Rwanda. It follows that the Government of Rwanda would then be required to give effect to the terms of the treaty in accordance with its domestic law, as well as international law. As my noble friend Lord Lilley set out on Monday, it is inconceivable that Rwanda will not implement carefully and considerately, and we continue to work at pace with the Government of Rwanda on implementation.

We therefore do not consider it necessary to make the proposed changes to Clause 4 to permit decision-makers or courts and tribunals to consider claims on the basis of Rwanda’s safety generally, or that Rwanda will or may remove persons to another state in contravention of its international obligations or permit the courts and tribunals to grant interim relief, other than where there is a real, imminent and foreseeable risk of serious and irreversible harm. There are ample safeguards in the Bill, and these amendments would be contrary to the Bill’s whole purpose.

To conclude, we have made it clear that we cannot continue to allow relocations to Rwanda to be frustrated and delayed as a result of systemic challenges on its general safety. In this context, the safety of a particular country is a matter for Parliament and one in which Parliament’s view should be sovereign. The evidence that we have provided and the commitments made by the United Kingdom and the Government of Rwanda through this internationally binding treaty enable Rwanda to be deemed a safe country. The Bill will allow Parliament to confirm that it considers that it has sufficient material before it to judge that Rwanda is in general safe and makes it clear that the finding cannot be disturbed by the courts.

Before I sit down, I return in a bit more detail to the matter which the noble Lord, Lord Cashman, started with his comment and which was answered by others. As we have set out previously, the constitution of Rwanda includes a broad prohibition of discrimination and does not criminalise or discriminate against sexual orientation in law or policy. As part of the published evidence pack, the updated country information note gave careful consideration to evidence relating to the treatment of LGBT individuals in Rwanda. Rwandan legal protection for LGBT rights is, as we have heard, generally considered more progressive than that of neighbouring countries.

I will conclude my submissions with reference to the point raised earlier by my noble friend Lord Lilley when he spoke about the precedent set by the 2004 legislation and referred to the views of the noble and learned Lord, Lord Neuberger, in relation to parliamentary supremacy. As my noble friend correctly quoted, it is a matter of this country enjoying parliamentary supremacy. Parliamentary supremacy is at the heart of accountability to Parliament and, through Parliament, accountability to the people about whom my noble friend Lord Howard of Lympne has spoken so eloquently during the debate on this Bill.

In conclusion, I submit that the noble Baroness should not press her amendment for the reasons I have given. Were she to do so, I have no hesitation in inviting the House to reject it.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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As always, I am grateful to all noble Lords, particularly those who spoke briefly. I am grateful to my supporters, not least the noble Viscount, Lord Hailsham. Defending our constitution and the rule of law runs very deep in his family, and he has brought such honour to his family, your Lordships’ House and our country with his contributions on this Bill. To the noble Lord, Lord Lilley, I say simply that, in this case, the Supreme Court did not attack the policy; it made a finding of fact, as it is entitled to do.

I am grateful to all Members of your Lordships’ House who participated in such good faith on the trip to Rwanda, as part of the Joint Committee on Human Rights. As we have heard, even in good faith there can be a dispute of fact between parliamentarians, let alone people on different sides of your Lordships’ House. Forgive me, but the man of the match in answering that predicament was the noble Lord, Lord Anderson of Ipswich, who said that this is what courts are for. I am grateful, as always, for the support of my noble friend Lord Coaker.

The Minister kindly apologised for the lack of concision, but a psychiatrist would always find the magic words hidden in the many. On a previous occasion, he told us that Rwanda was to become safe by decree. Today, he told us that this is about special circumstances. The road to hell is not just paved with good intentions; it is paved with special circumstances as well. He speaks rightly of parliamentary sovereignty. We are part of Parliament, and parliamentary sovereignty is not executive domination.

I am particularly sad that parts of today’s debate contrasted with what we heard yesterday in the debate on foreign affairs, when so many noble Lords, including those from the Government Front Bench, spoke about the importance of the international rule of law. Today, the Home Office is on parade and we hear exactly the opposite. It is time to trust the courts, and it is time to test the opinion of the House.

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Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, as I said, Amendment 37 puts the ball in the court of the Attorney-General; it is for her to make the decision and recommendation to the Government about the propriety of the interim measures. This is the most modest of the amendments in this group—and I do not know whether other noble Lords will be pressing their amendments.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, I am again grateful to all noble Lords who have participated in this debate, opened by the noble and learned Lord, Lord Hope of Craighead. He acknowledged that we had enjoyed a full debate on the topic in Committee, in which conflicting views on certain essential matters emerged.

The noble Lord, Lord Faulks, repeated the view he expressed earlier that the practice in relation to the Rule 39 interim indications of the European Court of Human Rights is suboptimal. But he also indicated that there are hopes that the procedure might shortly be improved.

Amendment 36 tabled by the noble and learned Lord, Lord Hope of Craighead, would allow a court or tribunal to have regard to a Rule 39 interim measure when considering whether to issue interim relief. But there is an equivalent domestic remedy in Clause 4, which means that there should be no need for the Strasbourg court to intervene. The decisions of the United Kingdom’s domestic courts to issue interim relief should be made only when they have reached their own conclusion about whether a person is at risk of “serious and irreversible harm”, and not when the European Court of Human Rights has indicated an interim measure.

“Serious and irreversible harm” is broadly the same test that the Strasbourg court applies; there is no reason why our domestic courts cannot be relied on to reach their own decision, rather than having regard to another court that may not be in possession of the most up to date information in the case. We have been clear that one of the primary purposes of the Bill is to reduce the number of legal challenges that seek to frustrate or delay relocations to Rwanda. We also need to create a deterrent and make it clear that those arriving via small boats will not be able to stay.

My noble friend Lord Jackson of Peterborough made a number of important points on judicial activism and the contrast between the rule of law and the rule of lawyers. Ultimately, if I may summarise his position, it comes down to an assertation of the accountability, of which we have spoken, introduced into our counsels by my noble friend Lord Howard of Lympne at an early stage. That is an important consideration for the House to bear in mind.

The noble Lord, Lord Alton of Liverpool, referenced Churchill. Again, if I may put words into my noble friend Lord Jackson of Peterborough’s mouth, I suppose that my noble friend’s point is that these times are not Churchill’s times. He spoke of the geopolitical challenge and the nature of the difficulties that illegal migration is causing to this country.

I note that the noble Baroness, Lady Jones of Moulsecoomb, is not in her place. None the less—

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Oh!

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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Oh, she is. Well, while she did not press the point again, there was none the less a Green-wedge approach, which included my noble friend Lord Deben, attacking the stance of the Opposition Front Bench. Noble Lords opposite are old enough and ugly enough to defend themselves, and the noble Lord, Lord Ponsonby, did so. On the aspects of my noble friend’s submission that attacked the Government, I say to him that his point is misguided. Of course, the French Government are not the European Union; they are acting in this context as a sovereign country and not as a member of the EU.

As I said, “serious and irreversible harm” is broadly the same test that the Supreme Court applies. The noble and learned Lord, Lord Hope of Craighead, went on to raise a matter in relation to the Constitutional Reform Act. This Bill takes the same approach adopted in Section 55 of the Illegal Migration Act; the Constitutional Reform Act is not referenced in the Illegal Migration Act. Under both provisions, it is for a Minister of the Crown alone, and not a court, to decide whether to comply with an interim measure. That reflects the orthodox position that international obligations act on the Government, rather than having effect on the domestic plane. It does not constitute an attack on judicial independence. There is no implied reform of Section 3 of the 2005 Act, which makes provision for the upholding of judicial independence. This provision remains intact and it is not necessary for legislation that does not bind judicial decision-making to spell that out. The judiciary’s independence is a fundamental principle of our constitution, as I think all noble Lords across the House will agree. The Government are committed to enabling judicial decisions to be made independently and impartially, whether domestically or in relevant international courts and tribunals.

I apologise to the noble Lord, Lord Anderson of Ipswich, and gratefully acknowledge his courtesy in approaching me to chase up the correspondence to which he referred the House. I apologise that the Home Office carrier pigeon failed to reach Ipswich before today. I have a copy of the letter that he sought and, with his leave, and that of the House, I will read the relevant provision.

Lord Alton of Liverpool Portrait Lord Alton of Liverpool (CB)
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My Lords, before the Minister leaves that point about carrier pigeons, can he say when the response from the Government to the Joint Committee’s report on this Bill will be forthcoming, given that on Monday we were told that it would be here for the proceedings today?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, the answer to the noble Lord’s question is “imminently”.

Returning to the correspondence with the noble Lord, Lord Anderson, I quote from that letter that bears my signature and which I trust that he will see in due course. He asked whether the Government agree that if, in compliance with Clause 5, a Minister decides not to comply with an interim measure, that would place the United Kingdom in breach of its international obligations. Clause 5 provides that it is for a Minister only to decide whether the United Kingdom will comply with an interim measure indicated by the European Court of Human Rights in proceedings relating to the intended removal of a person to the Republic of Rwanda under, or purportedly under, a provision of or made under the Immigration Acts. The Bill is in line with international law. The Government take their international obligations, including under the ECHR, very seriously, and there is nothing in the clause that requires the United Kingdom to breach its international obligations. In any event, it is not correct that a failure to comply with interim measures automatically involves a breach of international law. There are circumstances where non-compliance with an interim measure is not in breach of international law. There follows a list of further addressees whom I hope will receive the letter presently.

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB)
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I am very grateful to the Minister. I recall that, of the Grand Chamber in Mamatkulov, 13 of the 14 judges in the majority thought that there were no circumstances in which a failure to comply with interim measures could be in accordance with international law. The 14th expressed the view that the Minister has just expressed. Can the Minister indicate in what cases it is lawful under international law not to comply with interim measures issued by the court?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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It would be in circumstances where compliance is not possible.

Turning to Amendment 37 in the name of the noble Lord, Lord Coaker—

Lord Hannay of Chiswick Portrait Lord Hannay of Chiswick (CB)
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My Lords, the text that the Minister read out placed a great deal of importance on the phrase “does not require” a Minister to do something. However, it does empower a Minister to do it. Would what it empowers the Minister to do not be in breach of our international obligations?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, I now turn to Amendment 37 in the name of the noble Lord, Lord Coaker.

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB)
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My Lords, I do not wish to prolong things, but so we can be completely clear, is the Minister accepting that in circumstances where the Strasbourg court has made an order and it is possible for the United Kingdom to comply with that order, then the United Kingdom will be in breach of its obligations if the Minister decides not to comply with it? That is what I take from what he has just said.

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Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, as I said, the Bill is in line with international law. It is not correct that a failure to comply with interim measures automatically involves a breach of international law.

Turning to Amendment 37 in the name of the noble Lord, Lord Coaker, in making a decision about whether to comply with a Rule 39 interim measure, the Government expect that the Minister will carefully consider what is required to comply with the United Kingdom’s international obligations. That decision ultimately will be dependent on the individual facts of each case. As I set out in Committee, nothing within Clause 5 prevents Ministers from consulting Cabinet colleagues or seeking advice where appropriate. Given the importance of this decision, we would expect a Minister to do so. However, this is a decision for Ministers. Amendment 37, which introduces a requirement to consult the Attorney-General, is therefore not necessary.

Furthermore, specifying in a Bill that the Attorney-General must be consulted before a decision is made undermines the convention that relates to the law officers. This is a long-standing convention whereby advice received from the law officers is not disclosed outside government. It is also the convention not to disclose whether the opinion of the law officers has been sought.

It is essential that we take bold steps to stop illegal migration and to prevent removal being frustrated by a cycle of legal challenges and rulings by the court. Clause 5 puts beyond doubt that the decision on whether to comply with a Rule 39 interim measure is for a Minister of the Crown. Given the importance of this decision, we are clear in the Bill that this decision must be taken personally by a Minister of the Crown. The Minister will be accountable—that word again, which I make no apology for stressing—to Parliament for the exercise of that personal discretion. We have made clear on several occasions, including in my rehearsal of the text to the noble Lord, Lord Anderson of Ipswich, that the Government take their international obligations very seriously. There is nothing in this clause that requires the Government to act in breach of international law.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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Can we then take it from what the Minister has said that, if the Government, after taking appropriate legal advice that they choose to take, take the view that not to comply with a Rule 39 order would in the circumstances then prevailing put the Government in breach of international law, the Government would then comply with that order?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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The point is that Rule 39 interim measures are not final judgments of the European Court of Human Rights, which do bind the United Kingdom. They are not binding on the United Kingdom domestic courts. When deciding whether to comply with an interim measure indicated by the Strasbourg court, due consideration will be given to the facts in the individual case and careful consideration of the United Kingdom’s international obligations.

As we heard from the noble and learned Lord, Lord Hope of Craighead, in opening, Amendment 38, tabled by the noble Baroness, Lady Chakrabarti, would remove Clause 5 and disapply Section 55 of the Illegal Migration Act. This would lead to a conflict between the duty to remove, established by the Illegal Migration Act, and the effect of an interim measure issued by the Strasbourg court, which in turn would create uncertainty as to which would prevail. Clause 4 includes a specific provision enabling the United Kingdom courts to grant an interim remedy preventing removal to Rwanda where they are satisfied that a person would face real, imminent and foreseeable risk of serious and irreversible harm. We have designed these measures to ensure that our courts are not out of step with the Strasbourg court.

As I have said already, there is no reason why the United Kingdom courts, which we would expect to be in possession of all the evidence and facts in the case when making such a decision, cannot be relied upon to reach their own decision rather than having regard to another court which may not have the most up-to-date information. I acknowledge that the noble and learned Lord, Lord Hope, is not pressing his amendment, and I ask the noble Lord, Lord Coaker, not to move his amendment.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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My Lords, I am very grateful to noble Lords from all sides of the House, whatever their views may have been, for contributing to this debate. The result has been a much more interesting discussion than I anticipated in my rather brief and somewhat lame introduction to my amendment.

I shall make only one point. My amendment is concerned with the position of our own courts. As Clause 5(3) stands, it prohibits our courts from having any regard to an interim measure when considering an application which relates to a decision to remove someone to Rwanda. The noble Lord, Lord Faulks, is quite right when he says that the current procedures under Rule 39 are suboptimal. There are various defects which we would not accept in our courts, but that does not apply to our procedures. They are perfectly open, proper and thorough. Our judges would be able to take on board all the points that have been made in the course of the discussion and weigh up one way or another whether this measure from the European Court of Human Rights should be given effect to. I am not asking that they should be bound to give effect to it but that they should be permitted to do so. It seems to be a perfectly reasonable thing to ask our courts to do.

I have considered whether I should press this to a vote, but we have to ration ourselves at this stage of our proceedings and have regard to what happens next. If this goes down to the House of Commons, no doubt it will bounce back again and so on. We have to be careful how far we press things to a Division; I would have liked to do so, but at some points one has to exercise self-restraint, which I am doing.

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Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, the noble Lord, Lord Dodds, has once again asked the Government to explain the apparent contradiction between provisions in this Bill and Article 2 of the Windsor Framework. We believe that this is an important issue, and I can understand why the noble Lord believes that the Government did not fully respond to him or to the noble Lord, Lord Anderson, in Committee, especially given the concerns raised by the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and others on potential contradictions.

On Monday, this House strongly expressed its opinion that this Bill must be compliant with existing law. It is not unreasonable for the Minister now to fully respond to the questions of compliance. So we support the noble Lord in asking these questions, although we would not support the amendment if he were to press it to a vote.

I thought that the noble Lord, Lord Anderson, and my noble and learned friend Lord Falconer, made some important points about some of the amendments that have already been passed at this Report stage, which may reduce some of the anomalies that seem to be apparent in Northern Ireland. I would be interested to hear the Minister’s response to that point.

My noble friend Lord Dubs raised the issue of Guernsey. There is another amendment in the name of the noble and learned Lord, Lord Etherton, about Jersey. I think that it was the noble Lord, Lord Anderson, who said that the point really applies to all Crown dependencies. I would be interested to hear the noble and learned Lord’s response as to why the Crown dependencies were not consulted on provisions in this Bill.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, I am grateful to all noble Lords for their contributions to this debate. I will respond first to Amendment 44ZA, tabled by the noble Lord, Lord Dodds of Duncairn, which seeks to provide for the Bill’s effect in Northern Ireland, notwithstanding Section 7A of European Union (Withdrawal) Act.

The noble Lord makes his point exceptionally well, as he always does, in relation to the anxious question of the applicability of United Kingdom law to the United Kingdom. We have sought to be clear at the Dispatch Box that it is the unequivocal intention of the United Kingdom Government to apply the Bill in the same way across the United Kingdom. That is explicit in the Bill, which provides that immigration is a United Kingdom-wide matter.

I recognise that the tabling of this amendment once again reflects recent developments in the courts, of which we have heard from the noble and learned Lord, Lord Falconer of Thoroton, as well the noble Lord, Lord Dodds of Duncairn. As I stated to the noble Baroness, Lady Hoey, on Monday, when she raised these issues, the Government have always been consistent about their position on Article 2 of the Windsor Framework. I can advise that, following consideration of all aspects of the judgment of the court in the case of Dillon, His Majesty’s Government are applying for an appeal to the Northern Ireland Court of Appeal in relation to that matter. In any event, we remain quite clear that nothing in this Bill that provides for administrative arrangements concerning asylum and immigration policy engages Article 2.

For Article 2 to be engaged by this Bill, it would be necessary to demonstrate, first, that the alleged diminution relates to a right set out in the relevant chapter of the Belfast/Good Friday agreement on rights, safeguards and equality of opportunity; secondly, that the right was given effect in domestic law in Northern Ireland on or before 31 December 2020; and, thirdly, that it occurred as a result of the United Kingdom’s withdrawal from the European Union. These conditions are not all made out here and, indeed, fail at that first hurdle: they are not Belfast/Good Friday agreement rights. Accepting this amendment would undermine the Government’s position by implying that Article 2 and the rights in the Belfast agreement are far broader than is the case—that, I think, could not have been the intention of the noble Lord.

I am grateful to the noble Lord, Lord Dodds of Duncairn, for informal engagement with me and my colleague earlier this evening. As the noble Lord proposed, I would be delighted to meet him and any of his colleagues prior to Third Reading of the Bill. I have given, as I say, the assurance that an appeal has been sought in the appellate court in Belfast.

Briefly, in answer to the noble and learned Lord, Lord Falconer of Thoroton, the Government are not throwing any constitutional convention to the wind here. The Government’s position is an assertion throughout of constitutional orthodoxy.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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Can the noble and learned Lord indicate what the Government’s position is if the judgment stands—that is, where the leave to appeal is not given or the appeal fails?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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In that event, as with any adverse decision, I think, the Government would have to reserve their right to consider the matter, but the position is as I have stated, and we are confident of success.

I turn to the points raised by the noble and learned Lord—

Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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Before that, I know that I am not learned, but I did say some things and I have been ignored. What has happened to the response to the report of the Joint Committee on Human Rights? We are getting very close to finishing Report and, when I last checked, it still had not been published. I point out that the Government may have been consistent in their position on Northern Ireland, but is it possible that they have just been consistently wrong?

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Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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Before the noble and learned Lord replies, can he also respond in relation to the Constitution Committee’s report as well? Will we get the Government’s response before the end of Report?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I first beg the noble Baroness’s pardon; I had not intended to overlook her. In relation to the answers to which she and the noble and learned Lord refer, as we have said on previous occasions at the Dispatch Box, these responses will be issued imminently.

Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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I am sorry, but that really is not good enough. We are practically at the end of Report. This was promised to us by Wednesday. It is now 7.55 pm, on Wednesday evening, and we are about to finish Report, and still we are just promised it “imminently”.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I beg the noble Baroness’s pardon. I think that we had indicated that we were trying to get it by this point. That has not been possible, and I apologise to the noble Baroness.

I turn now to the matters raised by the noble Lord, Lord Dubs. Home Office officials meet the Justice and Home Affairs department officials of Jersey and officials from the Isle of Man and Guernsey on a regular basis. This engagement includes detailed updates on the Illegal Migration Act and this Bill. I note the points that noble Lords have raised with regard to consultation and confirm that the Government remain committed to consulting the Crown dependencies on legislation that might impact them. Unfortunately, due to the tight timeframes leading up to the introduction of the Bill, the Home Office was unable to engage in advance. However, as I have set out, I know that engagements have taken place since introduction.

Although it may seem unlikely, if, down the line, the United Kingdom-Rwanda treaty were to be extended to the Crown dependencies without the permissive extent clauses in this legislation—to which the noble Lord, Lord German, referred in his contribution—relocations from Jersey to Rwanda would not be able to take place, and it would be considerably harder to unpick this if the PEC is removed.

It is important to note that inclusion of a PEC in a Bill does not constitute legislating for the Crown dependencies, nor does it require any Crown dependency or the United Kingdom to do anything. Rather, it is a legislative tool that enables the United Kingdom’s provisions to be extended to the Crown dependencies when either a Crown dependency or, in extremis, the United Kingdom thinks necessary. There is no obligation to activate a PEC, but the enabling power remains in reserve.

Lord German Portrait Lord German (LD)
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I thank the Minister for the reply—which was that “We were in such a hurry that we didn’t have time to follow our own rules”—but the question I asked him was what advice officials gave him, given that the requirement not to put a permissive extent clause in this Bill is in fact within the guidance issued to the Home Office, and this is the Government’s own internal rule for it. Somebody must have said something at this point. Can the Minister tell me why the officials’ decision was to override their internal rules?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I regret to say that I am not privy to that information directly. I hear the point that the noble Lord raises, and, if he will permit, I will write to him to set out in appropriate detail an answer to the point that he makes.

Lord Dubs Portrait Lord Dubs (Lab)
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I am afraid that we are still left with a very unclear position as regards Jersey, and possibly also the other Crown dependencies. Where does this leave us? Jersey has made it clear that it does not consent to the permissive extent clause. Where does that leave us? It is a bit of a mess. Should not the Government bring forward something to tidy this up at Third Reading?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I shall make sure that the noble Lord’s point is given consideration before Third Reading.

For the reasons that I have sought to set out, I would encourage the noble Lord, Lord Dodds, to withdraw his amendment at this stage.

Lord Dodds of Duncairn Portrait Lord Dodds of Duncairn (DUP)
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My Lords, I am grateful to the Minister for his response to the debate and to everyone who has taken part. My purpose in bringing this amendment is, again, to shed light on the reality of where Northern Ireland in particular stands. I hear what he said about the appeal and what he said about meeting us before Third Reading; I would like to explore these matters in greater detail. We have heard the reassertion of the original assertion, which might have been understandable before the first case, or maybe even after the first case, but after three court cases it is beginning to wear a little thin. However, I look forward to meeting him and discussing it further. With that in mind, I beg leave to withdraw the amendment standing in my name.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, Amendment 62 in the name of my noble friend Lord Coaker would ensure that a Minister of the Crown making a decision on an interim injunction consults the Attorney-General. This would ensure that, before making a decision on compliance with any interim measures issued by the ECHR for the purpose of blocking a person’s removal to Rwanda, the relevant Minister consults the Attorney-General, creating an additional safeguard. The noble Lord, Lord Wolfson, introduced his speech by saying he was not going to be arrogant or impudent, so I will adopt the same approach in my speech, which will be brief. I am not going to go into the legal arguments—many eminent lawyers have done that—but I am going to go into the politics and address what seems to me to be the question that has been left hanging in the air.

Yesterday morning, I watched the television and Mr Michael Tomlinson, the Illegal Migration Minister, was on our screens and he was absolutely explicit: he said that the flights will take off as soon as the Bill becomes an Act and the treaty comes into force. He said they will be going pretty much immediately. There was no question of the niceties of Rule 39 and all the other things we have been talking about; the subject simply did not come up. That is the politics of it: when the Bill becomes an Act, the treaty comes into force and those flights will be taking off.

My noble and learned friend Lord Falconer went into how the decision on Rule 39 might be made. The question he, and the noble Lord, Lord Faulks, asked, was, would it be subject to judicial review? To me, that is the question hanging in the air, and I look forward to the Minister’s answer, because as far as I can see it will be for the Attorney-General to make that decision, on the recommendation of the Prime Minister, and she will be doing that as a law officer. Today’s Daily Telegraph said—I do not know how it knows this—that when Mr Tomlinson was Solicitor-General, he had written legal advice saying that it would be illegal to go against Rule 39. I know it is private advice; nevertheless, that was in today’s Daily Telegraph.

So, there are two issues. First, the Illegal Migration Minister was explicit about the flights taking off on the conclusion of proceedings on the Bill. Secondly, what is the status of judicial review of any Rule 39 decision?

Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, I am extremely grateful to the Committee for an exceptionally lively, informed and learned debate on this matter. The consideration of obligations to obtemper interim measures—interim indications from the European Court of Human Rights—seemed to gravitate around two poles. On one hand we had the noble Baroness, Lady Chakrabarti, the noble Lords, Lord Kerr of Kinlochard and Lord Hannay of Chiswick, the noble and learned Lord, Lord Etherton, and others. On the other hand, my noble friend Lord Howard of Lympne spoke powerfully, my noble friend Lord Jackson of Peterborough added his weight, and we heard supportive contributions from my noble friend Lord Wolfson of Tredegar and the noble and learned Lord, Lord Hoffmann, who spoke from the Cross Benches offering, if I may say so, a qualified view as to the obligation to obtemper any such interim measures.

The scheme of the Bill is to enact Clause 5 to put beyond doubt that the decision about whether to comply with an interim measure, in proceedings relating to the intended removal of a person to the Republic of Rwanda under, or purportedly under, a provision of or made under the Immigration Act, is in the hands of a Minister of the Crown. The requirement for a Minister of the Crown is to exercise the decision personally, which reflects the seriousness of the decision to be taken.

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Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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Why, then, does the Victims and Prisoners Bill, as presented by the Government, require the Secretary of State to consult the Attorney-General before amending the victims’ code, if there is this long-standing convention that the Government are indivisible and the Attorney-General will always be consulted on important matters? Also, why is this significant decision potentially to ignore interim relief from the Strasbourg court for Ministers and not Parliament, given that the Government’s central argument in this Bill is about parliamentary sovereignty?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I think the answer to the first point is that the Victims and Prisoners Bill relates to victims, a matter on which the Attorney-General, exercising her supervision over aspects of the criminal legal system, would be in a good position to answer. That distinguishes it from this measure. However, that is only my instinctive answer. So as not to mislead the Committee, if the noble Baroness is content then I will write to her on the topic. I am grateful for her nod of agreement. As to whether this should be for Parliament as opposed to the Executive, in the form of the Minister, I can only repeat that the scheme of the Bill and the Government’s intention is that this decision should lie with the Minister responsible.

The noble Lord, Lord Ponsonby of Shulbrede, made two points, the second of which echoed the question anent judicial review posed by the noble and learned Lord, Lord Falconer of Thoroton. Our position is that the decision on the part of a Minister to comply with an interim measure is not amenable to judicial review. His other question related to the views expressed by my honourable friend in the other place the Minister for Immigration about flights taking off as soon as the Bill passes. While this Committee is engaged in detailed legal scrutiny, my honourable friend is speaking in public about the Bill’s policy: to see to it that these flights take off as quickly as possible and the deterrent effect of which my noble friend Lord Sharpe of Epsom and I have spoken should take effect.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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Why is it not susceptible to judicial review? Ouster of the courts normally involves at least a provision in a Bill. There is no such provision here. Ousting the courts by a statement from the Dispatch Box in the House of Lords is very unusual.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, I am not in a position to go into detailed discussion on this point, but I have given the Government’s position on the amenability of judicial review in relation to these decisions.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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Could the Minister indicate when he might be in a position to debate it?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I undertake to correspond with the noble and learned Lord on that.

Amendments 58, 60 and 61 would bind the United Kingdom Government, preventing a Minister of the Crown or discouraging domestic courts from considering the individual facts of the case or the determination of the domestic courts as to whether a person would face a risk of serious and irreversible harm if returned to Rwanda.

The amendments would also require the United Kingdom courts to take account of an interim measure issued by the Strasbourg court, potentially supplementing the ECHR’s decision, rather than making their own independent finding about whether a person would face a real risk of serious and irreversible harm.

Finally, the disapplication of Section 55 of the Illegal Migration Act would lead to a conflict between the duty to remove established by the Act and the effect of an interim measure issued by the Strasbourg court. That would create uncertainty as to which will prevail.

Clause 4 includes a specific provision enabling the United Kingdom courts to grant an interim remedy preventing removal to Rwanda where it is satisfied that a person would face a real, imminent and foreseeable risk of serious and irreversible harm. Those measures have been designed to ensure that our courts are not out of step with the Strasbourg court; the serious and irreversible harm test is broadly the same that the Strasbourg court applies. Clause 4 would have our courts apply the same test as the Strasbourg court when considering the position of a person who might be sent to Rwanda. There is no reason why the United Kingdom courts, which we would expect to be in possession of all the evidence and facts in the case when making such a decision, cannot be relied upon to reach their own decision rather than being required to have regard to another court which may not have complete information on the case.

The Government submit that these amendments risk hampering or thwarting our efforts to stop the boats and to remove people with no right to remain in the United Kingdom.

There have been references from various quarters about the absence of my noble friend Lord Hailsham today. I indicate to the Committee that he was courteous enough to contact me directly and let me know what the position was. He has tabled Amendment 63, which relates to rules governing Rule 39 procedures. In support of that, the noble Baroness, Lady Chakrabarti, was the first to make inquiries of the Government as to what the position is in relation to the changes in the procedures. I am grateful to the noble Lord, Lord Faulks, who also discussed this. On 13 November 2023, the Strasbourg Court announced proposed amendments to its rules and practice concerning interim measures, including the naming of judges who make the decisions on interim measure requests, interim measures communicated as formal decisions, considering state representations before interim measures are indicated, and parties being able to request reconsideration of an interim measure.

The noble Lord, Lord Faulks, referred to his observations at Second Reading, expressed again today, concerning the differences between procedures when interim remedies are sought in our domestic courts and the case that is hitherto applied in the European court. I do not intend to repeat in any detail the points the noble Lord made. The point was that in relation to that case, as the noble Lord described, there was what amounted to a breach of natural justice, as it would be identified in a domestic court, as the United Kingdom was unable to put its case. As the noble Lord pointed out, in the domestic sphere, a person is able to seek and be granted an interim remedy.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I am grateful that the Minister was kind enough to inform the Committee about the November reforms from the Strasbourg court, so surely all these natural justice concerns have now been met.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I gave the noble Baroness a list of the recommendations, or the proposed amendments to the rules, but I do not see them as answering all of the concerns which the noble Lord, Lord Faulks, expressed, and with which I agree. The question of the ability to go to court directly after an indication has been made, or an interim interdict or injunction in our jurisdictions has been granted, and to argue the point with the court, does not form part of the reforms to the direct ability to challenge which the Strasbourg court has announced.

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Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, ultimately the matter for the Committee to take into account—I appreciate that I am not giving the noble Lord an answer—is where this leaves our domestic obligations, not our international ones.

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB)
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Surely it is relevant to this Committee, if we are being invited to pass Clause 5 into law, to know whether or not, in the Government’s view, it will enable or facilitate a breach of international law by a Minister acting in reliance on it. The Minister does not seem to be able to tell us whether he takes that view or not. I read the human rights memorandum as taking the orthodox view that there is a breach of our international obligations when interim measures are disregarded by a Minister. Is the Minister telling us that the position has changed since that memorandum was drafted?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, in addressing the Committee, I outlined that the position in relation to international measures is that they must be incorporated into domestic law before they take on binding character for our domestic courts.

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB)
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I do not believe there is any dispute in this Committee about the proposition that the Minister has just delivered himself of. However, we are not talking about domestic law; we are talking about international law. If the Minister cannot answer the question now, will he add it to what is, I am afraid, the lengthy list of questions on which he has kindly offered to write to the Committee in due course?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, in view of the hour and the information which I have to hand, and given the stark terms in which the noble Lord expresses himself, that might perhaps be the better course.

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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Is it not the case that the answer to the question of the noble Lord, Lord Anderson, is that it depends? We know from the Policy Exchange paper and many other sources that there have been many cases where Rule 39 indications have not been complied with by states parties, including France, Italy, Albania and Slovakia. It all depends on the circumstances, does it not?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I am grateful to my noble friend but the answer “it depends” renders the matter, to a certain extent, even more complicated and emphasises the number of considerations that I will have to take into account in writing to the noble Lord, Lord Anderson of Ipswich. While I am grateful to my noble friend for his contribution, my undertaking to write to the noble Lord remains in place.

Lord Scriven Portrait Lord Scriven (LD)
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My Lords, I thank all noble Lords who have taken part in this predominantly technical debate on the view of the UK’s legal position if it were to ignore an interim measure from the European Court of Human Rights. The final intervention from the noble Lord, Lord Anderson of Ipswich, and the Minister’s answer leave me just as confused as when we started the debate. It reminds me why, after I graduated 40 years ago, when I was offered the chance of becoming an NHS manager or going to law school, I chose to become an NHS manager. That was hard enough.

Clearly, noble and noble and learned Lords have raised several issues, but because of the lateness of the hour, I will not repeat them all. There is the issue of judicial review, which is quite bizarre. If a Minister’s sole decision on such an important issue cannot be judicially reviewed, particularly if the position is completely irrational, I think most noble Lords would agree that it would be easy for international law to be broken and for the individual to have no recourse even to our own domestic courts. As many noble Lords have said, the perverseness of Clause 5 as it stands is that it is preposterous that even our own domestic courts are ruled out from making any interim judgments. The Minister has not been able to give any convincing answer as to why that is.

A number of noble and noble and learned Lords asked this question in different ways, which the Minister, in answering, still ignored: if an interim decision is of such a serious nature, why would a Minister of the Crown wish to ignore it? It is hard to conceive why a Minister would wish to do that, particularly if there is no judicial review. It makes the individual completely reliant on a rational Minister making a decision devoid of the policy of the Government, which is absolutely central to stop the boats. It gets the Minister in a political and legal position that is highly suspect both for the individual on the receiving end of the decision and for the Minister having to make it. I am absolutely convinced of that, based on the views that have been raised.

Of all those views raised, the explanation of the noble Lord, Lord Anderson of Ipswich, about the judgment and Articles 32 and 34 is one that I felt was definitive, as, I think, did many other noble Lords. However, the Government refused to accept that and continue to insist that Clause 5 is not in breach of international law and is not in any way a dilution of the separation of powers. I believe that this issue will come back on Report, and quite rightly so. Depending on what the Government say, I am sure that it will be a bone of contention for the House. Having said that, I beg leave to withdraw my amendment.

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Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, this is a very small amendment. I tabled this amendment because I read that, according to what the Home Secretary said, it will be possible for people who have sought or been given asylum in Rwanda to be returned to this country if they are guilty of a serious offence.

Can the Minister say whether the Government have any idea of the numbers that they expect to be returned, or is it just a small number, as the Home Secretary said? What is the definition of a serious crime that would require somebody to be returned to the UK from Rwanda? Can we refuse somebody who is in Rwanda and the Rwanda Government are seeking to return on the basis that they have been guilty of a serious crime? Can the UK Government refuse to accept them back from Rwanda, if that is the case? If they are successfully returned to the UK from Rwanda because of the serious crime that they have committed, or the national security threat that they pose, what is their status when they are back in the UK? If we chose to do so, would we be able to deport them to another country?

This is a probing amendment; I was just curious, when I heard the Home Secretary talking about the possibility of criminals who had been deported to Rwanda being returned to the UK. It would be helpful to have a few answers to those questions. I beg to move.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, I thank the noble Lord, Lord Coaker, for Amendment 68, but I cannot support its addition to the Bill. We do not consider such a change necessary, as individuals would be returned from Rwanda only in extremely limited circumstances, which we have agreed to in this legally binding treaty.

The first question that the noble Lord, Lord Coaker, posed was to ask the Government again for numbers, as he had in the previous amendment. I do not think that any attempt to estimate likely numbers of people committing serious crimes is something that the Government could be expected to provide. If somebody who has been relocated to Rwanda commits a very serious crime, there is a chance that they could have their status revoked. In these limited circumstances, they may be removed to the United Kingdom, but only after they have served any prison sentence in Rwanda. This will ensure the non-refoulement element of the treaty will not be breached.

Lord Coaker Portrait Lord Coaker (Lab)
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Could the Minister define the prison sentence? Is it any prison sentence, or is it a sentence of two, four or five years?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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The provision in the treaty is reserved for the most serious crimes—one punishable by five years or more imprisonment.

The amendment would necessitate, in the rare event of such returns to the United Kingdom, parliamentary consideration as to whether the Rwanda treaty should be suspended. However, it does not follow that, because an individual is returned from Rwanda to the United Kingdom because of serious criminality, the whole treaty is called into question. The return of individuals to the United Kingdom, including in these circumstances, is envisaged expressly by the treaty. It would be an example of the treaty functioning as it should, not a reason for its suspension.

Lord Scriven Portrait Lord Scriven (LD)
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The Minister quite rightly says that it is in the treaty—under Article 11, I assume. But that article says that the person will come back to the United Kingdom only with the relocated individual’s consent. If that consent is not given, what happens in this instance?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I will have to revert to the noble Lord with an answer to that question, which is a hypothetical situation I had not considered.

The Government have set out the expense caused to the British taxpayer of billions of pounds in relation to illegal migration. As my noble friend Lord Sharpe of Epsom has pointed out on more than one occasion, our primary concern is the dreadful cost in life that it is inflicting. That is why we need bold and novel solutions towards ending it. Deterrence is a key element of the Rwanda partnership. Ultimately, we need to stop people making dangerous and illegal journeys across the channel. It is vital that we can show those who enter the United Kingdom illegally that they will not be permitted to remain here, thus breaking the model of the people smugglers and helping us to put an end to their vile trade. I therefore ask the noble Lord to withdraw his amendment.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, it is a great pleasure to follow my noble friend Lady Whitaker, who reminded us of the importance of the law in protecting the rights of individuals against states. It is also a great pleasure to follow the noble Lord, Lord Deben, and yet another speech in which he said that the debates and discussions on these groups of amendments bring us to fundamental principles of democracy, including the rights of law, freedom of speech and the separation of powers. Debating and discussing these in the context of the Bill is an important reminder of the power and responsibilities of this Chamber.

I am pleased to support the amendments of my noble friend Lady Chakrabarti, the noble and learned Baroness, Lady Hale, and the most reverend Primate the Archbishop of Canterbury, on reasserting the role of the domestic courts. To the noble and learned Baroness and my noble friend I say that it shows what a strange world we live in that, when the current Minister for Illegal Migration was Solicitor-General, he is reported to have told the Government that ignoring interim relief would put us in breach of the ECHR and that they should act with great trepidation. Now he is no longer Solicitor-General but is responsible for illegal migration, and he seems to have forgotten the advice he gave the Government. He could do with reading his own advice. All this, of course, is “so we are told”.

We are also told that the Attorney-General has had serious worries about this, but of course nobody can know about that because legal advice is always kept secret. Although he is the Advocate-General for Scotland, the Minister is not acting in a legal capacity but as a Justice Minister of some sort, and no doubt he will have read the comments made in the other place by various Members about how the Bill works with respect to the interaction with the Scottish judicial system. This is a parallel universe in which we exist, but, none the less, these are all extremely important amendments.

In speaking to my Amendment 48, I wish to highlight a particular aspect that goes alongside Amendment 39 and the others in my noble friend’s name. As a barrack-room lawyer, I take on board the point made by the noble and learned Baroness, Lady Hale, with respect to my inadequate amendment and the fact that it does not include interim relief. I apologise profusely for that oversight. In due course, it may return on Report with interim relief.

On a serious point, the Supreme Court said that the main reason it found Rwanda not to be a safe country in general was the risk of refoulement. The Government have gone to great length, in the treaty and in other things they have published, to say that they have dealt with all the concerns the Supreme Court had—although we note that, in its report published a few days ago, the JCHR continues to assert that there are problems that need to be considered.

I draw attention to Clause 4, which allows individuals who have compelling reasons to argue against their deportation under this Bill and the Illegal Migration Act. I remind noble Lords that even this minor concession of allowing individuals to do so, rather than debating the general safety of Rwanda, was regarded as a step too far by many in the Conservative Party and the Government.

My amendment seeks to delete Clause 4(2). I am grateful for the support of the noble and learned Lord, Lord Hope, although he is not in his place, and the noble Lord, Lord Purvis. The particular aspect I draw noble Lords’ attention to is that, although an individual can present compelling circumstances, and try to persuade the Government that this Bill should not apply to them and that they should not be deported to Rwanda, it does not allow them to do so if they say that they should not be sent there as there are reasons why they might be refouled—in other words, sent to a third country.

Under Clause 4(2), they are prohibited from arguing that in the courts. Subsection (2) says this is so

“to the extent that it relates to the issue of whether the Republic of Rwanda will or may remove or send the person in question to another State in contravention of … its international obligations”.

It includes the word “will”. An individual cannot even argue that they “will” be sent to another country, never mind that they “may” be—the Government included the word “will”. I find that extraordinary; it is almost that an individual cannot argue in a court, as a matter of fact, that they will be refouled. They cannot say, “I have compelling evidence that I will be sent to a third country”. It is extraordinary that legislation would say that you cannot as an induvial—let alone the point about general safety made by the noble and learned Baroness, Lady Hale, and my noble friend Lady Chakrabarti—argue in a court that you will be refouled. The court could dismiss such an argument, of course, but it would be up to the court—that is the whole point of the courts.

I take the point about interim relief, but I want justification from the Government as to why an individual cannot take that argument to a court, an immigration officer or the Secretary of State. The Home Secretary, or an immigration officer, cannot consider an individual saying to them, “I will be refouled if I am sent to Rwanda”. How on earth is that consistent with the principles of democracy of this country, of which we are all so proud? That is why I tabled the amendment, and I would like to hear the Government’s justification.

Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, I am grateful to noble Lords for their contributions to an interesting debate on this important point.

Clause 4 provides that a Home Office decision-maker, or a court or tribunal, can consider a claim that Rwanda is unsafe only

“based on compelling evidence relating specifically to the person’s individual circumstances”.

Subsection (2) prevents a decision-maker or the courts considering any claim where it relates to whether Rwanda

“will or may remove or send the person in question to another State in contravention of any of its international obligations”.

Where the duty to remove under the Illegal Migration Act does not apply, subsections (3) and (4) prevent the courts granting interim relief unless that person can show that they would face

“a real, imminent and foreseeable risk of serious and irreversible harm”

if they were removed to Rwanda. This is the same threshold that can give rise to a suspensive claim based on serious and irreversible harm under the Illegal Migration Act. Subsection (5) provides that the consideration of “serious and irreversible harm” will be in line with the definition set out in the Illegal Migration Act, with any necessary modifications. Any allegation relating to onward removal from Rwanda is not an example of something capable of constituting serious and irreversible harm, as the treaty ensures that asylum seekers relocated to Rwanda under the partnership are not at risk of being returned to a country where their life or freedom would be threatened.

Regarding the amendments tabled by the noble Baroness, Lady Chakrabarti, which the noble and learned Baroness, Lady Hale of Richmond, spoke to in opening, I remind noble Lords that the evidence pack published alongside the Bill details the evidence the United Kingdom Government have used to assess the safety of Rwanda. It concludes that, alongside the treaty, Rwanda is safe for the purposes of asylum processing, and the policy statement outlines the key findings. As experts on the bilateral relationship between the United Kingdom and Rwanda and its development over the past 30 years, FCDO officials based in the relevant geographic and thematic departments, working closely with colleagues in the British high commission in Kigali, have liaised with the Home Office throughout the production of the policy statement.

As my noble friend Lord Sharpe of Epsom and I set out in earlier debates, the United Kingdom Government and the Government of Rwanda have agreed and begun to implement assurances and commitments to strengthen Rwanda’s asylum system. These assurances and commitments provide clear evidence of the Government of Rwanda’s ability to fulfil their obligations generally and specifically to ensure that relocated individuals face no risk of refoulement. In answer to the points raised by the noble and learned Baroness, Lady Hale of Richmond, which were adopted by the right reverend Prelate the Bishop of Chichester, and by the noble Lord, Lord Coaker, from the Opposition Front Bench, among others, the position is that a person cannot argue this fundamentally academic point over a long period of time, occupying court resources. It is a point rendered academic because of the provision of the treaty governing the Bill.

Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
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I am grateful to the Minister for stating clearly that the Government of Rwanda have begun putting the safeguards in place. That is consistent with what he said earlier in Committee—that the Government of Rwanda are moving towards putting safeguards in place—but he accepted that Rwanda will be a safe country only when those are place, which may be after Royal Assent. Will an applicant be able to argue, even after Royal Assent, that Rwanda is not safe until the measures that are being moved towards are put in place?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, on the passing of the Bill, the Act will decree that Rwanda is safe. Just because work is being done to render a place safer it does not make it unsafe.

Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
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The Minister just said that Rwanda is becoming safer, but in his earlier comments he said that it has begun to put measures in place, and he has previously confirmed to me that until they are in place, it cannot be determined that Rwanda is safe. The Bill will decree that it is safe before the measures are in place so that it is safe. Surely someone would be able to argue in a court that it is not safe until those measures are in place. That is what the Minister just said.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, what I said was that on the passing of the Bill, Rwanda is safe. What I say is that it is—

Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
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You said that the safeguards had to be in place.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I did not. I said that just because safeguards have not yet been fully put in place, it does not mean, as a result, that Rwanda cannot be deemed safe.

Lord Deben Portrait Lord Deben (Con)
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If Rwanda is not safe now, but it will be safe, then the period between now and the point at which it will be safe must be one in which somebody could argue that it is not safe, otherwise it does not mean anything. My noble and learned friend has himself said that it is not safe now but will become safe. I am not one who thinks that we cannot have an extraterritorial arrangement, but I do not understand the logic that says that it is not safe now, it will be safe, but you cannot appeal to the courts in between those times otherwise it is just academic. This is a use of “academic” that I do not really understand.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I reiterate my previous answer: the fact that further work is being done does not mean that the safety or otherwise of a place is conditional on the completion of that further work.

The noble Baroness, Lady Whitaker, cited the question posed by the noble Lord, Lord McDonald of Salford, concerning a journalist. She is quite correct: I did not address that specifically when I spoke earlier. The question was not pressed on me subsequently, but given that the noble Baroness has returned to it, I will look into the matter with officials and correspond.

Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
- Hansard - - - Excerpts

I have one final point for the Minister. If this legislation decrees on Royal Assent that Rwanda is a safe country, what is the point of having the safeguards he has mentioned?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, any work being done to improve a place is desirable of itself.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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Does the Minister still stand by the assurance from the noble Lord, Lord Sharpe of Epsom, that nobody will be deported to Rwanda until the monitoring committee is up and running? He is talking as though people will start to be deported the moment this Bill passes, which is not what the noble Lord, Lord Sharpe, led us to believe.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My noble friend Lord Sharpe confirmed to me a moment ago that the monitoring committee is already operational; it is up and running.

Baroness Wheatcroft Portrait Baroness Wheatcroft (CB)
- Hansard - - - Excerpts

My Lords, the monitoring committee consists of four people, two of whom are apparently in the pay of the Rwandan Government. Can the Minister reassure us that he thinks it will be completely unbiased?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, in the first instance, the monitoring committee consists of not four but eight people. If I might express the words of my noble friend sitting next to me on the Front Bench, I can give that assurance.

My noble friend Lord Deben quoted John Donne’s line that

“No man is an island, entire of itself”.


I think in that piece of prose, which is one of his sermons, Donne also says the familiar passage about asking not for whom the bell tolls; “it tolls for thee”. None the less, while accepting everything of a universalist nature that my noble friend says about our obligations one to another as humans, I have to say that the Government’s scope for operation is restricted. We can operate within our powers and jurisdiction, must legislate to protect our borders, and cannot seek to exceed our powers.

Both the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Purvis of Tweed, raised the point that the progress and content of this legislation are under scrutiny. His Majesty’s Government fully accept that scrutiny and appreciate that it is timely and important because of the scale of the problem that we face. It is a problem faced across all sorts of different countries, and the Government are undertaking to address it by this legislation.

Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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The Minister may be about to speak on this but I did ask a specific question as to the Government’s response to the absolutely damning statement from the UN commissioner for human rights, which was published today and which the noble Lord, Lord Purvis, also quoted. It talked about

“drastically stripping back the courts’ ability to scrutinise removal decisions”

and

“a serious blow to human rights”.

This is serious stuff. I would like to know the Government’s response.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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The noble Baroness indeed anticipated me as I was turning to that point. As she says, the noble Lord, Lord Purvis, had touched on that. I have the statement by the United Nations human rights chief. The Government repudiate the charges that he places when he says:

“The combined effects of this Bill, attempting to shield Government action from standard legal scrutiny, directly undercut basic human rights principles”.


We disagree with that.

Lord Hannay of Chiswick Portrait Lord Hannay of Chiswick (CB)
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Will the Minister answer a very simple question? Did the United Kingdom vote for the High Commissioner for Human Rights to take his post? If so, by what right does it now repudiate his views?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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Whether or not we as a country voted for him to take his place does not exclude the possibility of disagreement with anything that any official, be he ever so high, may have to say.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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I am encouraged by the noble and learned Lord’s statement that the monitoring committee is up and running. He will know that the international treaties committee of this House said that

“the implementation of the Treaty requires not just the adoption of new laws, systems and procedures, but also the recruitment and training of personnel. For example, the Monitoring Committee has to recruit a support team”.

Are we to take it that the Minister is saying the committee has indeed already recruited a support team? If not, it is very difficult to see how it could be described as “up and running”.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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That is the information given to me, but I am happy to look into the matter to reassure the noble and learned Lord.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
- Hansard - - - Excerpts

Is it that it has recruited a support team, or that it is up and running?

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Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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The point I am making is that I have been told the body is up and running. That does not touch on the matter of the recruitment of a support team, which is the basis of the noble and learned Lord’s supplementary question.

From the Opposition Front Bench, the noble Lord, Lord Coaker, touched on advice said to have been given by the former Solicitor-General and by the Attorney-General. I think he is aware—I have touched on it from the Dispatch Box at earlier stages—of the existence of the law officers’ convention. I will return to it again in a later group, but the essence of that convention is not only that the content of advice given is confidential but also that it is confidential that advice has even been sought. The reason for that, accepted by Governments of every stripe over the years, is to assist with the passage of decision-making and the consideration of legal matters that touch on legislation to be passed. As I said, if I may, I will revert to that in consideration of a later amendment.

The assurances and commitments that the Government have received, together with the treaty and conclusions from the FCDO experts reflected throughout the policy statement, allow his Majesty’s Government to state with confidence that the Supreme Court’s concerns have been addressed and that Rwanda is safe. As the point has been taken in this debate, albeit in passing, I stress once again that this is a matter not of overturning the findings of the United Kingdom Supreme Court but rather of acting on them.

Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
- Hansard - - - Excerpts

The Minister is being generous in giving way, but what he just said contradicts what he said previously in Committee. At col. 70 of 12 February’s Official Report, I asked about the mechanisms for safeguards. It had been the Government’s position—until today, it seems—that the requirements of the Supreme Court would be met by the implementation of the treaty, which includes the safeguards within it. These include the appeals mechanism and the training and capacity-building. They have to be in place. If they are not in place, the treaty is not operative. Progress is being made towards them, as the Minister said, but he has just said that the Government’s view is that the requirements of the Supreme Court have been met. These comments are contradictory. This is important because, when I asked,

“can the Minister at the Dispatch Box reconfirm that position: that no individual will be relocated before the safeguards—including the appeals mechanism, the training and the capacity-building—are in place?”,

the noble and learned Lord, Lord Stewart, responded:

“I can answer the first part of the noble Lord’s question in the affirmative”.—[Official Report, 12/2/24; col. 70.]


Is that still the case, or did he mislead the House?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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The point I was making was in answer to the point raised earlier in the debate by noble Lords, who were characterising the Government’s actions as going back on, or overturning, the Supreme Court’s decision. As I said, the point is that the terms of the Bill and the treaty are a response to the Supreme Court’s decision.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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But it is absolutely clear from the policy statement, and from answers that the Home Secretary gave to the international treaties committee of our House, that the position is not complete in Rwanda until it implements new Rwandan asylum legislation, which has not yet been passed. The Home Secretary was specifically asked when that legislation would be passed by Rwanda, and he was unable to give a timeframe. For the noble and learned Lord to say that Rwanda is now safe, when even the Home Secretary accepts that this law has yet to be introduced in Rwanda, seems to completely contradict the Government’s position. I ask him to reconsider the answer to the question: are the Government saying that Rwanda is now safe, without that legislation in Rwanda?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

I think the terms of Article 9 of the treaty are clear. The Act comes into force the day that the treaty comes into force. As to the specific Rwandan legislation to which the noble and learned Lord refers, I am not able to give a categorical answer from the Dispatch Box.

Lord Hannay of Chiswick Portrait Lord Hannay of Chiswick (CB)
- Hansard - - - Excerpts

Will the Minister answer a couple of rather simple questions? Has he read the Rwandan legislation? Does he believe it is in conformity with the treaty?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

The answer to the former is that it does not fall to me to read the Rwandan legislation; but, given that decisions are taken collectively by the Government, I can answer the noble Lord’s second question in the affirmative.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
- Hansard - - - Excerpts

The Advocate-General for Scotland may not be the right person to express a view in relation to Rwandan legislation, but I assume that somebody in the Government has seen a draft of this legislation. Could he indicate who that is and what that person’s opinion is?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

My Lords, I will look into that. Presumably, the Foreign, Commonwealth and Development Office will take this matter under its wing. The noble Baroness, Lady Chakrabarti, refers to the Home Office. We will look into that and provide the noble and learned Lord with an answer.

Lord Coaker Portrait Lord Coaker (Lab)
- Hansard - - - Excerpts

Could the Minister confirm, for the benefit of all of us, that the Home Office team in charge of the Bill has not seen the Rwandan legislation and has no idea who has?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

My Lords, what I have said was that I have not seen the Home Office legislation. I have not been called upon to review it.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
- Hansard - - - Excerpts

My Lords, I would be keen to know what is the basis for the noble and learned Lord’s assertion that Rwanda is safe, which he is putting forward on behalf of the Government.

--- Later in debate ---
Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

My Lords, it has been a matter that has been canvassed exhaustively already, but it flows from the treaty which the Rwandan Government and His Majesty’s Government have entered into.

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
- Hansard - - - Excerpts

Could the Minister tell us whether the draft Rwandan law exists?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

My Lords, again, if the noble Lord is asserting that the relevant Rwandan legislation is a figment of the imagination of the Rwandan Government or His Majesty’s Government, I am not quite sure I can answer that. However, the point is that the treaty and the work going on—which has already been substantially completed—between the British Government and that of Rwanda must indicate that there is such a piece of legislation.

The assurance and commitments to which I have referred, given to and drawing upon the conclusions made by FCDO experts, reflected throughout the policy statement, allow us to state with confidence that the concerns of the Supreme Court have been addressed and that, I repeat, Rwanda is safe. We do not, therefore, consider it necessary to make the proposed changes to Clause 4 to permit decision-makers or courts and tribunals to consider claims or grant interim relief on the basis of Rwanda’s safety generally or that Rwanda will or may remove persons to another state in contravention of its international obligations. That is contrary to the whole purpose of the Bill. The assurances we have negotiated in a legally binding treaty with Rwanda address the concerns of the Supreme Court and make detailed provision for the treatment of relocated individuals in Rwanda, ensuring they will be offered safety and protection with—it must be emphasised—no risk of refoulement.

I turn to Amendment 48, tabled by the noble Lord, Lord Coaker. If I may build on a point I have been making, the treaty makes clear that Rwanda will not remove any individual relocated there to another country, except the United Kingdom in very limited circumstances. Article 10(3) of the UK-Rwanda treaty sets out explicitly that no relocated individual shall be removed from Rwanda except to United Kingdom in accordance with Article 11(1). Annexe B of the treaty also sets out the claims process for relocated individuals and how they will be treated. Part 3.3.2 of Annexe B sets out clearly that members of the first-instance body, who will make decisions on asylum and humanitarian protection claims,

“shall make decisions impartially, solely on the basis of evidence before them and by reference to the provisions and principles of the Refugee Convention and humanitarian protection law”.

Lord Coaker Portrait Lord Coaker (Lab)
- Hansard - - - Excerpts

If there is no risk of refoulement because of all those processes, all the legislation and all the things the Minister has just read out, in view of his earlier answers will he confirm that all of that is in place now? Or is it due to be in place? And if it is due to be in place, when will that be? How long into the future will all of the various points that the Minister has read out be in place? At the moment, as it stands under the Bill, I cannot go to the Home Secretary or to any immigration official and say I might be refouled, because I will not be allowed to under the Bill. And yet the Minister cannot tell us that all of the processes to protect me from refoulement are in place. So, what am I supposed to do if I am at risk of refoulement?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

If the noble Lord were to be threatened with refoulement, it could only happen to him once the Bill and the treaty were in place. A person could not be relocated to Rwanda until the Bill and the treaty are in place, and once the Bill and treaty are in place, there is no risk of refoulement.

Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
- Hansard - - - Excerpts

I am very concerned with what the Minister has literally just told us. The Minister has just said that, once this Bill has passed, there is no risk of refoulement. Article 10 of the treaty says:

“The Parties shall cooperate to agree an effective system for ensuring that removal contrary to this obligation does not occur”.


Those are not consistent. The effective system has to be in place, because that is what the treaty says; the effective system is not the passage of this Bill. So can the Minister now correct the record?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

My Lords, the Government are working with the Government of Rwanda to implement new protections to the Rwandan asylum system, including the introduction of new legislation. I am reverting to a point that was taken earlier, but I give the same answer that I gave to the noble Lord, Lord Coaker. Protections offered by the treaty will prevent refoulement from Rwanda to elsewhere.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
- View Speech - Hansard - - - Excerpts

I am grateful to the Minister, who has been very patient with so many concerned Members of the Committee, but everything that he says very honestly in relation to each question suggests that the safeguards are not yet in place. Therefore, Rwanda is not yet safe, because that was the whole point of the treaty: to offer additional protections and to attempt to assuage the concerns of the Supreme Court. How can all of this be academic? This is not a bathroom that has been plumbed in and we are now just painting the tiles; we do not have the plumbing yet.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

My Lords, the treaty guarantees that anyone relocated to Rwanda will be given safety and support and will not be returned to a country where their life or freedom will be threatened. That directly addresses the Supreme Court’s concerns about refoulement. As to the matter of the use I made of the word “academic”, I was using that in answer to points raised by noble Lords in relation to why the Bill bars the taking of general points of academic interest, which was referring to a point once the Bill and the treaty are in place. Once they are in place, there is no possibility of refoulement from Rwanda without contravention of an international instrument. The point is that, at that stage, argument before the domestic courts would be academic. I give way to the noble Lord.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
- Hansard - - - Excerpts

I do not think that the Minister has taken on board what the noble Lord, Lord Purvis, asked him. Article 10(3), which is the provision in the treaty that allows relocation only back to the UK, contains the following phrase:

“The Parties—”


that is, Rwanda and the UK,

“shall cooperate to agree an effective system for ensuring that removal contrary to this obligation—"

the obligation being to remove only to the UK—

“does not occur”.

The parties have not yet agreed that. The parties, the UK and Rwanda, therefore accept that, currently, there is not in place an effective system for ensuring that removal contrary to the obligation only to remove to the UK exists. Could the Minister please explain to the Committee how he can possibly say that, at the moment, under the agreement—that is the overarching agreement, not the agreement to agree an effective system for ensuring non-refoulement—such safeguards currently exist? We need an explanation for that.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

My Lords, the point is that the treaty, while it has not been ratified, is a matter of agreement. I spoke about the work—

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
- Hansard - - - Excerpts

Further to the Minister’s answer to the noble and learned Lord, Lord Falconer, does the system—the effective system for ensuring that removal contrary to the obligation does not occur—exist?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

My Lords, I am not fully clear that I follow the import of the question that the noble Lord poses. If he will bear with me, I am going to defer answering that point and will do so with him in writing.

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
- Hansard - - - Excerpts

Forgive me: I am just trying to understand the Minister’s position on the point raised by the noble Lord, Lord Purvis, and pursued by the noble and learned Lord, Lord Falconer. The treaty requires the parties to set up a system—it says they shall agree a system. The Minister is saying that Rwanda is safe and implying that that system has been set up, or at least has been agreed, and will come into force the moment the treaty is ratified. Is that the case?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

The system has been agreed and will come into place along with the treaty.

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
- Hansard - - - Excerpts

Could the Minister then tell us what that system is? When will the House see that system? It would help us to judge how real the remaining risk of removal to a third country is if we could see the system that has apparently been created to ensure that that risk does not come to fruition.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

My Lords, I will expand on the matter in the correspondence to which I referred the noble Lord.

I will go into more detail about the work that has been and is being conducted between Rwandan and British officials. Officials from the UK and Rwanda have worked closely together to strengthen Rwanda’s asylum system. We have already developed and commenced operational training for Rwandan asylum decision-makers and strengthened procedural oversight of the MEDP and asylum processes.

In November 2023, technical experts from the Home Office, working with the Institute of Legal Practice and Development, delivered a training course aimed at asylum decision-makers in Rwanda. It focused on applying refugee law in asylum interviews and decision-making, and on best practice in assessing credibility and utilising country-of-origin information.

Furthermore, as set out in paragraph 14.1.15 of the published country information note on Rwanda’s asylum system, once the treaty is ratified there are provisions for Rwanda to move to a case-worker model when deciding asylum claims. Under that model, for the first six months Rwanda’s decision-making body will consider advice from a seconded independent expert prior to making any decision in relation to a claim.

Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
- Hansard - - - Excerpts

Under CRaG, the scrutiny period for the treaty has now been concluded, so, for clarification, when will the UK ratify the treaty?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

That is a decision not for me to take. It will be taken by the Government collectively. I am not in a position to give a date to the noble Lord, if he was asking me to give one. In the circumstances, I cannot supply him with any further information.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
- Hansard - - - Excerpts

The Minister just referred to the independent experts who are going to help the Rwandans in relation to their processing of claimants. Our International Agreements Committee said those independent experts have yet to be appointed. Could he give the House an indication of how the appointment process is going? How many have been appointed, and when?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

My Lords, that is a matter of detail upon which I will have to correspond with the noble and learned Lord.

The Government of Rwanda are committed to this partnership. Like the UK, they are a signatory to the refugee convention and have an international obligation to provide protection to those who are entitled to it. The Bill is predicated on the compliance by both Rwanda and the UK with international law in the form of the treaty, which itself reflects the international legal obligations of the UK and Rwanda.

Taking together the strengthened Rwandan asylum system and the commitment set out in the legally binding treaty—which, once ratified, will become part of Rwandan domestic law—it is unnecessary for a decision-maker, whether that be an immigration officer or a court, to consider any claim made on the ground that Rwanda may remove a person to another state. Furthermore, as I said earlier, that would delay unnecessarily the relocation of individuals to Rwanda, thereby undermining the core of the Bill.

For the reasons outlined, I respectfully ask that noble Lords do not move their amendments.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
- Hansard - - - Excerpts

My Lords—before the Minister sits down—it becomes crucial to know when this Act will come into force. This is not a personal observation, but the Minister has given the most unsatisfactory series of answers about what the position is in Rwanda. Clause 9 of the Bill says:

“This Act comes into force on the day on which the Rwanda Treaty enters into force”.


On Wednesday, I took the Minister through what the statement and the agreement suggest, which is that the Bill comes into force when the steps required for ratification are completed by both countries. The only step required for ratification that is referred to in the policy statement made by the Government, as far as the UK Government are concerned, is the passage of this Bill. So it appears that the Government are envisaging that, almost automatically on the passage of the Bill, they will treat the agreement as ratified. The consequence is that the Bill will immediately come into force. If that is right, it is pretty obvious that the Bill will become law and the Government can deport people to Rwanda when the safeguards are not in place. Could the Minister confirm that my understanding of when the Bill is going to come into force, which I set out in detail last week, is correct?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

I cannot go beyond the terms of the clause to which the noble and learned Lord refers. Clause 9(1) states:

“This Act comes into force on the day on which the Rwanda Treaty enters into force”.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
- Hansard - - - Excerpts

As always, I am grateful to the Committee for its deliberations, but on this occasion I am particularly happy to welcome the noble and learned Baroness, Lady Hale of Richmond, to those deliberations, and indeed to what I hope will be a long and happy role as a legislator in your Lordships’ House. I think the Committee will agree that she dealt with this important group of amendments with the expertise and clarity that we would have expected. She pointed out the dangers of the “for ever” conclusion that Rwanda is safe and therefore the inability of our domestic courts to ever look at that issue—something that I think every speaker other than the Minister found unsatisfactory and said so more than once.

The noble and learned Baroness pointed out the oddity of a situation where there would be at least the possibility of jurisdiction in the European Court of Human Rights in Strasbourg in circumstances where our domestic courts had been stripped of jurisdiction. For those concerned about sovereignty, that seems to be a very odd state of affairs. The one thing that the Bill does not purport to oust is the final jurisdiction of the European Court of Human Rights in Strasbourg—although it attempts to allow Ministers to ignore interim relief from Strasbourg—but it completely ousts all serious jurisdiction of our domestic courts, particularly in relation to the issue of the general safety of Rwanda. That is a very odd and unsatisfactory state of affairs and, again, no one in the Committee other than the Minister appeared to say otherwise.

I am grateful to the right reverend Prelate the Bishop of Chichester and my noble friend Lady Lister of Burtersett for reminding the Committee what the UNHCR said just today about the Government of the UK attempting to shield themselves from judicial oversight. My goodness me—what would we be saying about any other country or jurisdiction in the world that that was said about by the main refugee monitor at the UN? Furthermore, I am grateful to the noble Lord, Lord Purvis of Tweed, for pointing out the significance of this in places such as the UN Human Rights Council, and how shameful it is that an examination of the UK should now be threatening to eclipse the situations in the Middle East and Ukraine. There are almost no words.

When there are almost no words, thank goodness for the noble Lord, Lord Deben. I refer the Committee to Hansard last Wednesday, when he spoke about the “nature of truth” and how we should always be seeking after it and never trying to end that exploration. I say to the Minister that rather more important than any references to John Donne today was the allusion to Al Gore; it is the inconvenient truth that the Government are constantly seeking to avoid with this Bill. It is the inconvenient truth that Rwanda is not yet safe, hence the need for the treaty in the first place and all the mechanisms that need to be brought in and operated under it. This was put so well, repeatedly, by my noble and learned friend Lord Falconer of Thoroton. There is also the inconvenient truth that we still believe in the rule of law in this country. We still believe in anxious scrutiny of individual cases before people’s rights are put in jeopardy. There is the inconvenient truth that, even if Rwanda became generally safe tomorrow, things could change quickly, as they do in countries all over the world, as was pointed out once more by the noble and learned Baroness, Lady Hale of Richmond.

I am grateful to my noble friend Lady Whitaker for pointing out very real concerns about journalists currently detained in Rwanda. We wait for responses “in due course” from the Government about reports of torture of the journalists currently incarcerated there. I was grateful for the support of my noble friend Lord Coaker on the Opposition Front Bench. I thought, if I may say so, that the courtesy and deference he gave to the noble and learned Baroness, Lady Hale, and the mutuality of respect between them, boded well for the attitude of a future Labour Government. I will hold him to that in due course, I hope.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Stewart of Dirleton Excerpts
Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
- View Speech - Hansard - -

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 Portrait Lord Coaker (Lab)
- Hansard - - - Excerpts

Is the Minister saying that the quote of the Prime Minister’s words is not accurate?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

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 Portrait Lord Scriven (LD)
- Hansard - - - Excerpts

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 Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

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 Portrait Lord Deben (Con)
- Hansard - - - Excerpts

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 Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

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 Portrait Lord Purvis of Tweed (LD)
- Hansard - - - Excerpts

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 Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

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 Portrait Baroness Chakrabarti (Lab)
- Hansard - - - Excerpts

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 Portrait Lord Falconer of Thoroton (Lab)
- Hansard - - - Excerpts

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 Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

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 Portrait Lord Purvis of Tweed (LD)
- Hansard - - - Excerpts

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 Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

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.

--- Later in debate ---
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
- Hansard - - - Excerpts

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 Portrait Lord Stewart of Dirleton (Con)
- Hansard - -

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 Portrait Lord Scriven (LD)
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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?

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Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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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 Portrait Baroness Bennett of Manor Castle (GP)
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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 Portrait Lord Stewart of Dirleton (Con)
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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 Portrait Baroness Lister of Burtersett (Lab)
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Is the Minister going on to another point? I did ask some specific questions.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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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 Portrait Baroness Lister of Burtersett (Lab)
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Is the Minister going to answer my questions?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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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 Portrait Lord Purvis of Tweed (LD)
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There is no obligation on the monitoring committee to publish its report, so how will we know what they are?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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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.

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Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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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 Portrait Lord Stewart of Dirleton (Con)
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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 Shaws Portrait Baroness Kennedy of The Shaws (Lab)
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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 Portrait Lord Stewart of Dirleton (Con)
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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 Portrait Baroness Lister of Burtersett (Lab)
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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 Portrait Lord Stewart of Dirleton (Con)
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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 Portrait Lord Anderson of Ipswich (CB)
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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.

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Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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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 Portrait Lord Stewart of Dirleton (Con)
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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.

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Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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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 Portrait Lord Stewart of Dirleton (Con)
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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 Portrait Baroness Lister of Burtersett (Lab)
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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 Portrait Lord Stewart of Dirleton (Con)
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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.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Stewart of Dirleton Excerpts
Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, I am grateful to all noble Lords who contributed to this debate, and in particular to the noble Lord, Lord German, for opening. I acknowledge the spirit across the Committee of approaching this matter by looking to see what can be amended and not setting out to wreck the Bill, as the noble Baroness, Lady Chakrabarti, said on the first group.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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I would like to wreck the Bill—just so the Minister knows.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I accept that and I did hear the noble Baroness make that point from the Benches opposite.

Since summer 2022, when judicial review proceedings in relation to the migration and economic development partnership began, the United Kingdom and the Government of Rwanda have worked to refine and improve that partnership. This has strengthened not only the operational readiness of Rwanda to receive and support migrants relocated under the partnership but the legal footing of the agreement and the commitments both sides undertake to ensure that national and international obligations and standards are met, having scrutinised closely and carefully all the circumstances of the country and information from appropriate sources.

Rwanda has a long history of supporting and integrating asylum seekers and refugees in the region. It has also been recognised internationally for its general safety and stability, strong government, low corruption and gender equality. I quote from what the Kigali-based comprehensive refugee response officer, Nayana Bose, of the UNHCR said in December 2021—mark the date:

“Rwanda has done an excellent job integrating refugees in the national education system, including urban refugees in the national community-based health insurance plan, providing them with national ID cards and offering them livelihood opportunities”.


As the Committee is aware, the Bill is underpinned by the treaty, Article 10 of which in particular sets out the assurances for the treatment of relocated individuals in Rwanda, including abiding by the refugee convention in relation to those seeking asylum. Furthermore, pursuant to Article 3 of the treaty, the parties agree that the obligations therein

“shall be met in respect of all Relocated Individuals, regardless of their nationality, and without discrimination”.

Under this commitment, Rwanda will treat all groups of people fairly. We have assurances from the Government of Rwanda that the implementation of measures within the treaty will be expedited. The treaty will follow the usual process with regard to scrutiny and ratification. I note that amendments tabled by noble Lords on this topic will be debated in the group to follow.

Amendment 17 would also oblige the Secretary of State to consider Rwanda safe only if it was deemed so for every descriptor of person as set out in Section 7(3) of the Illegal Migration Act. In relocating individuals to Rwanda, decision-makers will make a case-by-case decision about whether there is compelling evidence that the particular circumstances of each case would mean an individual would be at risk of serious and irreversible harm were they to be relocated to Rwanda. This means that each person’s circumstances are considered before relocation. We therefore consider the amendment unnecessary.

Amendments 24 and 27 relate to the roles of courts and tribunals. It is important that we recognise that these are considered decision-makers in relation to relocating individuals to Rwanda, and they may have a say in it.

Amendment 27 in particular would place an obligation on courts and tribunals to consider any claim that Rwanda may breach its international obligations by removing an individual to a country that was unsafe for them; that an individual may not receive fair and proper consideration of their asylum claim; and that Rwanda will not act in accordance with the terms of the treaty. This obligation is unnecessary. Rwanda is as committed to this partnership as we are. We have worked closely together to build this partnership and have trust that the commitments in the treaty will be upheld. That is why we have introduced the Bill, which reflects the strength of the Government of Rwanda’s protections and commitments given in the treaty, allowing Parliament to confirm the status of the Republic of Rwanda as a safe third country.

The noble and learned Lord, Lord Falconer of Thoroton—I speak to his later contribution, rather than when he was assisting the noble Lord, Lord German, with legal analysis—posed the question of whether judicial review might be applicable. My noble friend Lord Howard of Lympne took up that point as well. On that aspect, I refer noble Lords to the terms of Article 22 of the treaty, which provides:

“In the event of a dispute arising out of or relating to this Agreement, including any question regarding its existence, validity, termination, interpretation or implementation, the Parties shall refer the dispute to the Joint Committee which shall meet within 14 … Working Days to discuss and seek resolution to the dispute by consultation”.


Therefore, the process by which matters will be addressed, if there is some shock to the operation of the system once it is operational, is set out in the terms of the treaty and operates on the level between the two countries.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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I thank the noble and learned Lord for answering the question, but I am not sure that answers the point. Suppose the position were that the UK said, “You haven’t implemented it properly”; the effect of this Act would be nevertheless that a Minister and every single deciding body would have to decide that Rwanda was a safe country. I am not quite sure how Article 22 responds to the suggestion that I think the noble Lord, Lord German, makes in his amendment that judicial review should be available—albeit, as the noble Lord, Lord Howard of Lympne, said, it would be the decision of the Secretary of State as to whether it was a safe country. Could the noble and learned Lord address that suggestion?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, in relation to the operation of the treaty during its currency, we should bear in mind that a monitoring committee is in place, which examines these things on a going-forward basis, keeps them under supervision and reports back.

Annexe B of the treaty also sets out the claims process for relocated individuals and how they will be treated. It sets out clearly that members of the first instance body, who will make decisions on asylum and humanitarian protection claims, shall make such decisions

“impartially, solely on the basis of evidence before them and by reference to the provisions and principles of the Refugee Convention and humanitarian protection law”.

In preparation for the potential relocation of individuals, officials in the United Kingdom have worked together with Rwandan officials to develop and commence operational training for Rwandan asylum decision-makers. Most recently, Home Office technical experts, in collaboration with the Institute of Legal Practice and Development, delivered a training course aimed at asylum decision-makers in Rwanda.

Lord German Portrait Lord German (LD)
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My Lords, I wonder if the Minister might tell us how long the course was, how many people were training and where they were from.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I do not think the noble Lord will be especially surprised to hear that I do not have those facts to hand, but I will undertake on behalf of the relevant department to communicate with him in writing on that topic.

The course focused on applying refugee law in asylum interviews and decision making—

Lord Scriven Portrait Lord Scriven (LD)
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The UN has reported on the treaty and the deficiencies that the Supreme Court referred to. In January, it noted in paragraph 20 of its report that training, based on its historical review of what is required in such circumstances, is normally of limited use. Over and above the training, what else has been put in place for those decision-makers to ensure that they fully abide by and understand their obligations, not just within Rwandan law but international agreements?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, as I said when I was responding to a point from the noble and learned Lord, Lord Falconer of Thoroton, the presence of British officials and foreign judges in Rwanda, looking at these matters and collaborating to resolve them, will clearly inculcate an atmosphere and a spirit of proper observance.