51 Viscount Hailsham debates involving the Home Office

Tue 16th Apr 2024
Safety of Rwanda (Asylum and Immigration) Bill
Lords Chamber

Consideration of Commons amendmentsLords Handsard
Wed 20th Mar 2024
Mon 4th Mar 2024
Safety of Rwanda (Asylum and Immigration) Bill
Lords Chamber

Report stage & Report stage: Minutes of Proceedings
Tue 13th Feb 2024
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, it is a pleasure to follow my noble friend Lord Coaker. My Motion C1 very much a dovetails with his Motion A1. With his support, I will seek to test the opinion of the House in a little while, after the debate on Motion B1 in the name of the noble and learned Lord, Lord Hope of Craighead. I very much hope that he will test your Lordships’ opinion as well.

Why my Motion dovetails with my noble friend’s Motion is that we cannot observe the international rule of law by defenestrating our domestic courts. This Motion seeks to restore the jurisdiction of His Majesty’s judges and their ability to give appropriate scrutiny to these most vital of human rights decisions.

The Minister was quite right earlier when he said that this is not the first time in legislative history that a country has been deemed presumptively safe for refugees and asylum seekers—but there is a world of difference, I suggest, between a country being presumptively safe and being conclusively safe for all time, with no avenue for challenging that safety, even as facts change.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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There is another difference too. The Supreme Court, just a few months ago, held that Rwanda is not safe.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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As always, I am so grateful to the noble Viscount, Lord Hailsham, whose father famously coined the phrase “elective dictatorship” in his Dimbleby lecture of 1976.

The fundamental problem with the Bill, unamended by the proposed new Clause 4, is that it allows the Executive to dictate the facts. It allows the Executive to defenestrate domestic courts—not international or, some would say, foreign courts but domestic courts—including in their ability to grant in extremis interim relief.

The amendment turns the conclusion for all time that Rwanda is safe into a rebuttable presumption based on credible evidence. It therefore incorporates the earlier work of the noble Lord, Lord Anderson of Ipswich. It also incorporates earlier amendments by the noble and learned Lord, Lord Etherton, and my noble friends Lord Dubs and Lord Cashman in including a person’s membership of a persecuted social group in the examination of whether they would be safe—not just their most particular individual circumstances but their membership of a social group, which is probably the basis for most refugee claims in the world.

As I have said, it restores that vital ability in extremis to grant interim relief. In understanding of some concerns on the Benches opposite and of the Government, a court or tribunal under this measure, as amended, would have to have heard from the Secretary of State or taken all reasonable steps so to do, and to grant such an injunction only where the delay would be

“no longer than strictly necessary for the fair and expeditious determination of the case”.

This does not prevent a policy of transportation to Rwanda, no matter how much I loathe that policy in its utility, morality and expense. It is a reasonable compromise to which the other place has given no serious respect or attention and, therefore, it has given no serious respect to your Lordships’ House.

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The Commons reason set out in the Marshalled List states that my amendments are not necessary, first, because the Bill comes into force when the treaty comes into force and, secondly, because it is not appropriate to legislate for Rwanda adhering to its treaty obligations because its ongoing adherence to its treaty obligations will be subject to the monitoring provisions set out in the treaty. That fails to face up to the points that I am making on both the issues that I raise. The coming-into-force of the treaty is not enough, despite its ratification. We need confirmation before Parliament that it has been implemented before Rwanda can be considered to be safe. As for the second point, as Sir Jeremy Wright said, if the facts were to change then it is simply not sensible for Parliament not to be able to say differently save through primary legislation. The other place needs to think again. I beg to move.
Viscount Hailsham Portrait Viscount Hailsham (Con)
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My Lords, I support Motion B1, moved by the noble and learned Lord. I support both proposed new subsections within his amendment, subsections (7) and (8), but I want to focus exclusively on subsection (8), because it addresses directly what will happen in the foreseeable circumstances that Rwanda ceases to be safe. It lives in a fragile and volatile part of the world. It does not have a long tradition of democracy. The president has been there for an awfully long time. I do not regard that as a good sign. Therefore, there is a foreseeable risk that Rwanda will cease to be safe. As the noble and learned Lord said, this Bill not only does not address that point but requires future decision-makers to assume that it is safe when the rest of the world knows that it is unsafe. That is a nonsense. It is unjust and it is bad government. I am glad to say that there were distinguished voices on the Conservative Benches yesterday and when the matter was last debated, cited by the noble and learned Lord, who made these points.

I recall also the intervention of the noble and learned Lord, Lord Falconer, when the matter was debated in this House a few weeks ago. He told your Lordships that on that very morning he had heard the Lord Chancellor, Mr Chalk, say that in the event of the monitoring committee holding that Rwanda was no longer safe, there would be a parliamentary occasion. He did not specify whether the occasion would be a social one to which we would or would not be invited, nor did he tell us about the parliamentary process. I asked my noble friend the Minister whether he would be good enough to tell us what the parliamentary occasion would be. He said that he could not tell us. Well, he has now had four weeks to find out.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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I apologise for intervening, but I have not heard, either, from the Lord Chancellor as to what the parliamentary occasion would be. Can the noble Viscount, Lord Hailsham, help us? Has he heard what the parliamentary occasion would be?

Viscount Hailsham Portrait Viscount Hailsham (Con)
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No. I have been speculating on whether we will be asked to a party, to which we might or might not be invited, or whether there will be a parliamentary Statement or whether the Government will bring forward a Bill to repeal this Bill. There are a number of possibilities, but we have not been told and, so far as I am aware, the Minister has not been told either—though he could go and take advice from the Box, if he so chose, because he has officials in this Chamber who could doubtless advise him.

So we have a real problem, and it is addressed by the amendment moved by the noble and learned Lord. The amendment has advantages, in that it does not deny parliamentary sovereignty and it retains the accountability of the Secretary of State, but it has one disadvantage in that it is silent as to what happens if the Secretary of State makes a statement to the effect that Rwanda is not a safe country. I am not quite sure what happens in legal terms at that point, but I am certain that it is an important step forward. We would be making progress if we accepted this amendment, and if the noble and learned Lord tests the opinion of the House, I shall be supporting him.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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My Lords, perhaps I might respond to the noble Viscount. The provision in proposed subsection (8) simply states that, if the Secretary of State makes such a statement to Parliament, Rwanda will not be safe for the purposes of the Bill. I think that is as far as one can go, but if there is anything wrong with it, it is up to the Government to sort it out.

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Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, I have already stated that the Government would not be obligated to remove individuals under the terms of the treaty if there has been a change, unexpected or otherwise, in the in-country situation in Rwanda.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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The Minister uses the phrase “not be obligated”. That just means they do not have to do it, but it does not alter the legal position.

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, I understand the definition of the word “obligated”.

The Bill builds on the treaty and the published evidence pack and makes it clear in UK law that Rwanda is a safe country, and it does address the concerns of the Supreme Court. The courts have not concluded that there is a general risk to the safety of relocated individuals in Rwanda. Rather, the Supreme Court’s findings were limited to perceived deficiencies in the Rwandan asylum system and the resulting risk of refoulement should any lack of capacity or expertise lead to cases being wrongly decided. My noble and learned friend Lord Stewart of Dirleton and I have dealt with exactly where Rwanda is in terms of ratification and so on. The Court of Appeal unanimously upheld the High Court’s finding that a policy of removing individuals to safe third country where their asylum claims would be determined did not breach the UK’s obligations under the refugee convention, and the Supreme Court did not disturb that finding. The Supreme Court recognised that changes may be delivered in future which could address those concerns, and those changes are being delivered.

Turning to Motion F1, in the name of the noble Lord, Lord Browne, and spoken to powerfully, if I may I say so, by other noble Lords, I again reassure Parliament that once the UKSF ARAP review has concluded, the Government will consider and revisit how the Illegal Migration Act and removal under existing immigration legislation will apply to those who are determined ARAP eligible as a result of the review, ensuring that these people receive the attention they deserve. I will go a little further here and say to the noble Lord, Lord Coaker, that there is no intention to turn our backs on those who have served.

Finally, I am sorry to hear that the noble and learned Baroness, Lady Butler-Sloss, does not like the Government’s amendment in lieu, but I am afraid there is very little else that I can say on that subject.

Asylum Seekers: Rwanda

Viscount Hailsham Excerpts
Thursday 21st March 2024

(4 months ago)

Lords Chamber
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Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, yes. The fact is that people who have paid £5,000 to £10,000 to a murderous criminal gang to get to the UK—let us not forget that they have been sold a lie and will not be able to stay here—are unlikely to be attracted by an offer of £3,000. I do not believe that it will have any effect on the deterrence principle.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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Will my noble friend the Minister help the House by telling us whether the numbers of migrants who are paid a fee to go to Rwanda will count towards the numbers that Rwanda has agreed to take as compulsory relocations under the Bill’s provisions?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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As the scheme has only just begun, I do not know what the numbers are likely to look like in the end. However, as this is governed by a separate agreement, I imagine that the answer is no.

Safety of Rwanda (Asylum and Immigration) Bill

Viscount Hailsham Excerpts
Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, I am very grateful for the contributions of noble Lords to this debate. I am grateful in particular to the noble and learned Lord, Lord Hope, for the very gracious way he introduced his amendments, as ever.

It is unnecessary, however, to record on the face of the Bill the position the Bill already sets out in Clause 9. This Act comes into force on the day on which the Rwanda treaty enters into force. The treaty sets out the international legal commitments that the UK and Rwandan Governments have made, consistent with their shared standards associated with asylum and refugee protection. It also commits both Governments to deliver against key legal assurances in response to the UK Supreme Court’s conclusions.

I am very grateful to my noble friends Lord Howard, Lord Lilley and Lord Horam for pointing out, perhaps rather gently, that the noble and learned Lord, Lord Hope, is placing not much faith in the safeguards that the real-time monitoring committee will offer. We believe that this will be much more effective than any other form of scrutiny. My noble and learned friend went through the monitoring committee’s terms of reference in the last group, and I will not repeat those. I will say that the enhanced monitoring that has been discussed—the enhanced phase—will take place over the first three months on a daily basis. An enhanced phase will ensure that monitoring and reporting take place in real time, so that the independent monitoring committee can rapidly identify, address and respond to any shortcomings or failures to comply with the obligations in the treaty and identify areas for improvement, or indeed urgently escalate issues prior to any shortcomings or breaches placing a relocated individual at real risk of harm. That will include reporting to the joint committee co-chairs within 24 hours in emergency or urgent situations. I could go through the various minimum levels of assurance that have been agreed by the monitoring committee, but I fear I would lose the patience of your Lordships.

I have made it crystal clear that the Government will ratify the treaty in the UK only once we agree with Rwanda that all necessary implementation is in place for both countries to comply with the obligations under the treaty. We have assurances from the Government of Rwanda that the implementation of all measures within the treaty will be expedited, and I am grateful for all the work that continues to be done by officials in the Government of Rwanda.

Just to conclude, again I agree with my noble friends Lord Lilley and Lord Howard, that the proper parliamentary response to any changes is of course to change the legislation, either by amendment or appeal. On that basis—

Viscount Hailsham Portrait Viscount Hailsham (Con)
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Before my noble friend sits down, he will have heard the noble and learned Lord, Lord Falconer, tell us what the Lord Chancellor said about a parliamentary occasion if the monitoring committee was to advise that Rwanda was not safe. Would my noble friend care to tell us what the parliamentary occasion would be?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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Well, no. As I was not party to the comments of the Lord Chancellor, I think it would be very foolish of me to try to second-guess what he may have meant by that comment.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, after such a thorough Committee, which showed this House—if not the Government or their flagship policy—in the best light, I will be brief and urge others to do the same. This way, those seeking important votes will avoid self-harming delay and highlight any deliberate filibustering by others.

My amendments in this group, shared with the noble Viscount, Lord Hailsham, the noble and learned Baroness, Lady Hale of Richmond, and the right reverend Prelate the Bishop of St Edmundsbury and Ipswich, would add the purpose of compliance with the international and domestic rule of law to deterrence in Clause 1. They require actual evidence of real implementation of the Rwanda treaty before that country is presumed safe, and only that this be presented by government to Parliament. That is all. I have revised my approach after the suggestion by the noble Lord, Lord Howard of Lympne, that initial decisions be in Parliament’s accountable hands, rather than those of others. While still finding the forced transportation of human cargo completely repugnant, I note my noble friend Lord Blunkett’s distinction between offshoring and offloading by ensuring that those granted asylum be returned to the UK under the treaty.

These are wholly reasonable amendments, but if the Government still cannot accept them, I will urge my noble friend Lord Coaker to test the opinion of the House on his single requirement, respecting the rule of law, which is surely completely incontrovertible for those, such as the Prime Minister, who now claim to be liberal patriots. That was two minutes. I beg to move.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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My Lords, I begin by saying how much I regret the death of my noble friend Lord Cormack. He was a great friend of mine and a close colleague for more than 40 years in the House of Commons and here. He was also a very close Lincolnshire neighbour, and he rendered great service to the city and county. He was a very considerable parliamentarian, and I know that he intended to participate in these debates. He would have made a significant contribution. His is a very great loss.

I hope I will be forgiven if I remind your Lordships that, for the reasons I expressed at Second Reading and in Committee, I am a root and branch opponent of the Bill. In my view, many of its provisions are objectionable in principle. Moreover, I do not think it will achieve its intended policy objective: to deter illegal migration across the channel.

However, I recognise that the Government are determined to have this Bill, so our purpose at this stage should be to address some of its more objectionable characteristics. It is in this spirit that I address the amendments in this group and adopt the approach of the noble Baroness, Lady Chakrabarti. I can and I will support any of the substantive amendments included in this group that are moved to a Division. However, I especially commend to your Lordships Amendment 3 in the name of the noble Baroness, Lady Chakrabarti, which I have signed.

One of the Bill’s great deficiencies is that it purports to describe Rwanda as presently a safe country when both the Supreme Court and this House have decided otherwise. The Government rely on the treaty as being sufficient evidence of present safety. In my view, that is clearly not a sustainable position. It is possible that Rwanda will become a safe country—that is, when the treaty is ratified, when its provisions have been implemented, when the infrastructure is in place and working, and if the country’s culture has changed. That may all happen in the future; it has not happened yet. On any view, it will require assessment.

Proposed new subsections (1B) and (1C) in the noble Baroness’s Amendment 3 are designed to provide a mechanism for such an assessment. The amendment provides that the initiative lies with the Secretary of State. That takes account of the observations my noble friend Lord Howard of Lympne made at Second Reading, when he stressed the importance of proper democratic accountability. The amendment ensures just that. I commend Amendment 3 to the House. However, if others in this group are the subject of Divisions, I shall support them.

Baroness D'Souza Portrait Baroness D’Souza (CB)
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My Lords, I will speak to my Amendments 10 and 43 in this group. I remain concerned about the potential constitutional fallout from this Bill, despite what my noble friend Lord Hannay has referred to as a “sterile” issue. There must be a reference to its remarkable impact on vital constitutional elements, such as the rule of law, the separation of powers and parliamentary sovereignty. Although these are probing amendments, such is the gravity of these possible consequences that they surely deserve to be noted, if not in the Bill then at least in the record of its passage.

The Supreme Court has stated unequivocally in a former judgment:

“The courts will treat with particular suspicion … any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny”.


In this Bill, the Government are doing just this by writing into law a demonstrably false statement—that Rwanda is a safe country to receive asylum seekers—thereby forcing all courts to treat Rwanda as a safe country despite clear findings of fact.

It is clear that the Bill subverts the rule of law, the key elements of which are abiding by international law, equality before the law, respect for fundamental human rights and guaranteeing access to the courts. These rights are negated by this Bill, and as such it is a legal fiction. The longer-term impacts might be considerable—for example, could the Supreme Court in future rule, with any authority, a Prorogation unlawful?

The Bill in its present form enjoins all relevant courts and officials to deem Rwanda a safe country and specifically disallows any rational challenge by the courts. In Committee the noble Lord, Lord Clarke of Nottingham, expressed the hope that there will be a challenge, thereby enabling the Supreme Court to strike the Bill down as unconstitutional. Should this happen, a review of the Bill’s impact on the rule of law in the UK would prove invaluable evidence.

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Lord Lilley Portrait Lord Lilley (Con)
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I cannot say what today’s Supreme Court would do, but the supreme courts of our country in those days did entertain a challenge. Greece, in particular, was not thought to be safe, and presumably they would not think now that France is safe. They upheld the right of the Executive to make those decisions and did not try to supersede them or consider evidence as to whether the accusations were correct.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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This is a different situation. Here we have the expression of opinion by the Supreme Court being displaced by the Government through legislation.

Baroness Meacher Portrait Baroness Meacher (CB)
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My Lords, I do not think it is relevant to cite France. The fact is that this country has a great reputation for upholding the rule of law and international law, and we play a great part across the world. This Bill is threatening that reputation and that role. France does not have that reputation or role, in my opinion.

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Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, it is a privilege to follow my noble friend Lord Blunkett. I apologise to your Lordships for my mistakes earlier on, with standing up at the wrong time.

I have Amendment 19 in this group, with the noble and learned Baroness, Lady Hale of Richmond, the noble Viscount, Lord Hailsham, and the right reverend Prelate the Bishop of St Edmundsbury and Ipswich. However, I commend all other amendments, in particular the simple and clear amendments of the noble Lord, Lord Anderson of Ipswich. While we suggested a rebuttable presumption, his formulation—that a finding of safety may be displaced by “credible evidence to the contrary”—is clearer and even more attractive. Therefore, I urge him, as he has indicated, to press his amendment to a vote.

In concluding, I merely flag, as a sort of advert for Wednesday, that it is very important that as many noble Lords as possible can be here early on Wednesday to support Amendment 33, which introduces a new Clause 4. That will be debated and pressed then, because without that amendment, which restores the general jurisdiction of the courts, other amendments, even these ones, could well be illusory. The purpose, as I say, is to restore the jurisdiction of courts and tribunals to decide what the facts are, based on the evidence before them, including to invoke this rebuttable presumption. That is what our courts are for, despite all the dancing we heard before about novel interpretations of the rule of law. Our courts are admired for that jurisdiction all over the world. That is what we mean by the rule of law.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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My Lords, I rise briefly to support what the noble Lord, Lord Anderson, has said, as well as, of course, the noble Baroness, Lady Chakrabarti; I signed her Amendment 19. This House should try to insist that, if the facts change, a mechanism is provided to the courts to reassess the situation. Anything else is profoundly unjust. Therefore, if the noble Lord, Lord Anderson, moves his amendment, I will support him.

Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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My Lords, as well as supporting the noble Lord, Lord Anderson, I rise to speak to Amendment 16, which seeks to minimise the risk of torture arising from the Bill and to safeguard torture survivors. I am grateful to the noble Baroness, Lady D’Souza, and my noble friend Lord Cashman for their support. They will speak to the first part of the amendment, while I will focus on the second. We brought it back because of our dissatisfaction with the response from the Minister in Committee. We hope that we might do better now, given the existential importance of torture, which represents one of the most serious of human rights violations.

We know from the work of organisations such as Freedom from Torture and Redress, whose help I am grateful for, that a good number of the asylum seekers in line to be sent to Rwanda will have survived torture. We also know, including from a recent report from the Mental Health Foundation, of the high incidence of mental health difficulties among asylum seekers, the risk of which is increased by traumatic experiences such as torture. These difficulties can only be exacerbated by removal to Rwanda.

In Committee, the Minister pointed out that an individual could challenge removal on the grounds of their “individual circumstances”. But Freedom from Torture warns that providing, in the time available, the necessary “compelling evidence” to meet the exceptionally high bar set by the test means that this does not offer torture survivors an effective safeguard. Indeed, the Minister himself admitted that successful claims on this basis are expected to be “rare”. That might have implications for some other amendments.

In response to my questioning about what mental health support will be available to torture survivors in Rwanda, the Minister referred me to Article 13 of the treaty, but that refers only to the special needs of victims of modern slavery or human trafficking. I can find no reference to the needs of torture survivors.

My noble friend Lady Kennedy of The Shaws interjected that the mental health situation in Rwanda is very poor, with high levels of mental illness but very few suitably trained medical professionals. Since then, I have been referred to WHO’s 2020 mental health profile for Rwanda. This confirms the low level of provision and seems to show that there are no out-patient mental health facilities. If this continues to be the case, would traumatised torture survivors have to be admitted to a mental health unit to obtain any support? As was noted in Committee, civil society remains weak and therefore is unlikely to be able to step in.

More recently, last October, a press release from Interpeace, while commending the efforts that the Rwandan Government have made in this area, warns that

“the country still faces challenges such as the scale of mental health needs that outstrips the capacity of available professionals, low awareness and knowledge of mental health issues”

and “poor mental health infrastructure”.

From the Minister’s responses, it would appear that the Government simply do not know what support will be available and have made no attempt to find out, yet they are happy to condemn this highly vulnerable group to a life in a country that, with the best will in the world, is ill placed to provide that support. Of course, ideally, I would want the Government to accept the case for not sending torture survivors to Rwanda. At the very minimum, I ask the Minister to take this issue back to the Home Office—although I am not quite sure which Minister will respond—and give an undertaking that he will ask his colleagues to talk to the Rwandan Government about support for torture survivors and, if necessary, provide the necessary resources to ensure that support is available, perhaps earmarking part of the enormous sum to be paid to Rwanda identified by the NAO.

Protest Measures

Viscount Hailsham Excerpts
Tuesday 13th February 2024

(5 months, 1 week ago)

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Viscount Hailsham Portrait Viscount Hailsham (Con)
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My Lords, I hope my noble friend will be cautious about invoking criminal law unless there are clear mischiefs to be addressed. I entirely agree with the noble Lord, Lord Coaker, about face coverings and was much reassured by what my noble friend said, but I am much less happy about war memorials. Clearly, clambering over a war memorial is an unattractive and distasteful business, but I am far from clear that it is such a mischief that we should invoke the criminal law and impose criminal penalties. Many years ago, when my wife was 20, we were clambering over the lions in Trafalgar Square. I do not want to be told that we were defiling the memory of Lord Nelson.

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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I take my noble friend’s point, though I must admit that I did not realise that he had quite such a colourful past. I am afraid that, on this, the Government disagree, and think that this is a proportionate measure.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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My Lords, in the short time available, I shall concentrate on my conclusions. The first point that I wish to make relates to the policy that the Bill is intended to facilitate: namely, deterring small boats. I do not believe that the Bill, if enacted, will serve as an effective deterrent. I believe that individuals who choose to make the perilous journey across the channel in overcrowded and vulnerable boats are unlikely to be deterred by the slight prospect of being relocated to Rwanda. Those of your Lordships who have principled reservations about the Bill should not support a Bill that cannot achieve its desired objective.

My second point, and my principal objection to the Bill, is the statutory reversal of the Supreme Court’s judgment that Rwanda is not a safe country. Whether Rwanda is or is not a safe country is a matter of fact, to be determined after careful assessment of the relevant evidence. This is what the Supreme Court did. In my view, it is contrary to long-standing principles to reverse, by a statutory pronouncement, a judicial finding of fact.

I turn to my broader objection. This country prides itself on being a country in which the rule of law prevails. We are a country which adheres to its international obligations. The Bill trashes our reputation for domestic and international probity. I cite two provisions. Clause 1(4)(b) states:

“It is recognised that … the validity of an Act”—


any Act, I note—

“is unaffected by international law”.

International law is very broadly defined: see Clause 1(6). That provision is right in strict law, but its sole purpose in the Bill is to provide comfort for the Braverman wing of the Conservative Party and it is a proposition that we should voice with very great caution.

Clause 5 enables a Minister, at his or her discretion, to determine whether or not to be compliant with judicial rulings of the European Court of Human Rights. Members of the international community reading the Bill would be entitled to conclude that the given word of the United Kingdom cannot be relied on.

On Clause 3—the disapplication of the Human Rights Act in respect of individuals who would otherwise benefit from its provisions—I call to mind the words of Pastor Niemöller, spoken in 1947:

“First they came for the socialists, and I did not speak out—


Because I was not a socialist.

Then they came for the trade unionists, and I did not speak out—

Because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—

Because I was not a Jew.

Then they came for me—and there was no one left to speak for me”.

Of course, the circumstances are very different from those of the 1930s, but we should beware the precedent that we would create. It is best not to step on to a slippery slope; it can end in some very murky places.

I end with what I hope is a constructive suggestion: the Bill should not be implemented without a positive resolution of both Houses of Parliament. Such a resolution should not be considered until Parliament has received a report on the safety of Rwanda from, for example, a Joint Committee of both Houses appointed for the purpose; there may be other ways of meeting the objective. In the event of no report or an unfavourable report, the Bill would remain in the long grass, where it should be. Such an approach could be reinforced by sunset clauses and constant, continuing assessment. That way, Parliament would at least have an assessment of fact on which it could properly rely. Incidentally, it also accords with the judgment of this House in last week’s vote.

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Viscount Hailsham Portrait Viscount Hailsham (Con)
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I thank the noble Lord for giving way. Is there not a difference here—a difference between disagreeing with a view and disagreeing with a finding of fact?

Lord Faulks Portrait Lord Faulks (Non-Afl)
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I am grateful to the noble Lord; I am coming on to that point. There were certain unusual aspects of the decision of the Supreme Court, which is normally concerned with points of law of general public importance rather than findings of fact. It might be better to describe the decision as rather more of a risk assessment based on the evidence before it rather than a finding of fact but, in any event, the Government have since responded to the court’s concerns, as your Lordships have heard.

I ask the question rhetorically: if the matter were before the Supreme Court today, would the judges come to a different conclusion? One should bear in mind that, even before the new steps taken by our Government and that of Rwanda, this case was finely balanced. The Court of Appeal was not unanimous on the matter and the Divisional Court found in favour of the Government. I also note Lord Sumption’s evidence to the Joint Committee on Human Rights acknowledging the Government’s response to the Supreme Court.

The Bill tackles some really big legal issues. In the view of the lawyers for the Government, it has gone as far as it can go without infringing international law. We know that there remain opportunities for litigation—lawyers have already announced their intention to take them—but the arguments on the law will have to wait until Committee.

At this stage, it is important to consider what the alternatives to the Rwanda scheme are, and so I turn to Labour’s position, and here I would like to mention Sir Keir Starmer. He has been criticised as being a “lefty lawyer”. I have had the privilege of being against him in court and, if he is a lefty lawyer, he is certainly a good one. I think it inappropriate to criticise him for the fact that some of his clients would not necessarily feature high on everybody’s desired guest list for a dinner party. What is his policy vis-à-vis the boats? There has been some talk of better relationships with France and better safe routes, but at the absolute centre of what is said to be the strategy is apparently Sir Keir himself. He reminds us regularly that he was DPP from 2008 to 2013. He was not in charge of Border Force or the National Crime Agency; he was supervising prosecutions at a very macro level—which is why I am reluctant to blame him for shortcomings in relation to the prosecution of, say, Jimmy Savile, or even the poor victims of the Horizon scandal. But he cannot have it both ways. Is it really suggested that, on the very arrival of Sir Keir, a former DPP, at No. 10, the smugglers will simply roll up their rubber dinghies and give up their promising and profitable business model? Is Labour’s alternative deterrent none other than Sir Keir himself? I am afraid I am unconvinced by that.

It comes to this: Rwanda is, at the moment, the only game in town. We all agree that we must stop the boats. The Government have made progress but need to go further. This Bill will enable the scheme to take effect—courts here and in Strasbourg permitting—and I admit it may deter those who sustain the people smugglers’ business. Other European countries face the same challenges and are actively considering similar schemes. Of course your Lordships’ House will scrutinise this Bill carefully, but we should retain some constitutional modesty. The elected House has passed the Bill. Many people in this country consider that their Government should be able to control our borders against illegal migration, and we should not ignore them. In the absence of any cogent alternative, while we should strive to improve the Bill, we should not wreck it.

Asylum Seekers: Deportation from France

Viscount Hailsham Excerpts
Monday 4th December 2023

(7 months, 3 weeks ago)

Lords Chamber
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Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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Really? I will find out and come back to the noble Lord.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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My Lords, in the event that the Government decide to derogate from any part of the convention, would Ministers agree to publish in advance, before doing so, a paper identifying which of our international obligations might be impacted by such a decision?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, I cannot anticipate what may or may not be in the Bill. Obviously, the Bill will be presented to Parliament in the usual way.

Rwanda: Asylum Arrangements Treaty

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Tuesday 21st November 2023

(8 months ago)

Lords Chamber
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Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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I am afraid I do not have that detail because the Bill has yet to be presented to Parliament. However, as I understand it, the timeframe is 21 days after laying, when both Houses are sitting, for the treaty process to take effect.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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My Lords, does my noble friend agree that, for the purposes of assessing the safety of a country, a theoretical commitment to treaty obligations is not sufficient? What counts is the performance of those obligations, which requires a period of assessment.

Illegal Immigration

Viscount Hailsham Excerpts
Monday 20th November 2023

(8 months, 1 week ago)

Lords Chamber
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Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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I cannot comment on that at the moment, but, again, I am sure we will come back to it in due course.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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Does my noble friend agree that whether Rwanda is or is not a safe country is a matter of fact and that to displace such a finding of fact by the Supreme Court using a statute is very hard to reconcile with the rule of law? Perhaps I may make this suggestion. If we must have this Bill, we could have a delayed implementation date, to be triggered only by an affirmative resolution of both Houses of Parliament, with that debate to be preceded by a report of a Joint Committee of both Houses advising on whether Rwanda is a safe country.

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, I agree with my noble friend, regarding the Supreme Court’s decision, that as of 14 June 2022 it did indeed regard it as a fact that there was a risk of refoulement. However, that is a fairly narrow interpretation of the rest of the system that is currently set up in Rwanda. Again, I will not speculate on how things may change. I also note that the Supreme Court specifically acknowledged that there were cases where it could see the situation changing in the fullness of time. I expect that this is the area we are looking to explore.

As regards my noble friend’s suggestion of an affirmative SI, I am happy to take that back and enter that into the conversation that is taking place.

Abortion Clinics: Safe Access Zones

Viscount Hailsham Excerpts
Monday 20th November 2023

(8 months, 1 week ago)

Lords Chamber
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Viscount Hailsham Portrait Viscount Hailsham (Con)
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Does my noble friend agree that these women will be in a very fragile state of mind, and it is highly undesirable that they should be subjected to coercive behaviour by the opponents of abortion?