All 10 Baroness Chakrabarti contributions to the Safety of Rwanda (Asylum and Immigration) Bill 2023-24

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Safety of Rwanda (Asylum and Immigration) Bill Debate

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Safety of Rwanda (Asylum and Immigration) Bill

Baroness Chakrabarti Excerpts
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, it is a privilege for this daughter of migrants to share your Lordships’ House, but today in particular it is a huge responsibility.

People were once imprisoned for being in debt and transported across oceans as punishment for the smallest crimes of hunger and desperation. I believe that future generations will come to look at this Government’s flagship policy with an incredulity similar to our feelings about those past inhumanities. But that is just my opinion.

It is also just my opinion that this Bill is repugnant to each tradition represented in your Lordships’ House. It is discriminatory, undermining the dignity of our fellow human beings, which is what asylum seekers and refugees are. It is illiberal and unconservative in its attack on a hard-won international rules-based order, the creation of which a previous generation of British statesmen was so proud. It is unchristian—indeed, contrary to the better instincts of all the great world faiths in its cruelty and dehumanisation. People are not sacks of carrots or widgets to be shunted around the globe for “processing”. To offshore one’s humanitarian responsibilities is as immoral as it is to offshore personal wealth as a means of evading public duty. But, as I say, that is just my view.

However, that the Republic of Rwanda is not currently or yet a safe place for those seeking asylum is not mere opinion; it is, as we have heard, fact. Furthermore, these are the facts found by the Supreme Court of the United Kingdom: not an international or “foreign” court, as the Prime Minister—another child of migrants—likes to caricature referees whenever he concedes a penalty or misses a goal, but the highest court in a land that has contributed so much to the development of the rule of law across the world. Your Lordships’ International Agreements Committee has ably reported on the factual conditions that must be met before the Rwanda treaty—the trigger for the commencement of this proposed Bill—can even begin to assuage the concerns of the Supreme Court.

Wisdom counsels changing our minds when the facts change, not doctoring the facts when our minds are made up. In attempting to change facts with a draftsman’s pen while simultaneously ousting the jurisdiction of our courts, the Bill is repugnant to the rule of law in general and the separation of powers in particular. In purporting to take ministerial powers to ignore interim rulings of the European Court of Human Rights, a permanent member of the Security Council will lose any moral authority to lecture other states on their international rule of law obligations in dangerous times.

It is hard to justify unelected legislators in a democracy. Noble Lords no doubt have their own arguments to offer their children and grandchildren, such as the expertise, experience and wisdom of a scrutinising and revising Chamber. For me, the most important argument, in an unwritten constitution that lacks entrenched protections even for the independent courts themselves, is that independent parliamentarians will stand with judges against executive abuse, because before democracy—before even our modem notion of rights and freedoms—the bedrock of any civilised society is the rule of law.

Safety of Rwanda (Asylum and Immigration) Bill Debate

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Safety of Rwanda (Asylum and Immigration) Bill

Baroness Chakrabarti Excerpts
Moved by
1: Clause 1, page 1, line 2, after “The” insert “first”
Member’s explanatory statement
This amendment, and others in the name of Baroness Chakrabarti to Clause 1, add the purpose of compliance with the rule of law to that of deterrence. The amendments require positive UNHCR advice on the safety of Rwanda to be laid before Parliament before claims for asylum in the UK may be processed in Rwanda.
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, we commence the vital work of this Committee with amendments that address a fundamental dispute of fact: that the Government’s attitude to checks, balances and the rule of law now threatens our unwritten constitutional settlement. Having failed to convince our highest court that the Republic of Rwanda is currently safe for asylum seekers and refugees, the Executive seek to overturn the Supreme Court’s recent factual determination, ousting the jurisdiction of domestic courts to reconsider those facts in the light of further developments, including the Rwanda treaty on which the Government rely. The Government further purport to take powers to ignore interim orders of the European Court of Human Rights. Thus, they threaten both the domestic rule of law, especially the separation of powers, and the international rules-based order.

I remind noble Lords not just of the Supreme Court’s decision of 15 November last year but of subsequent reports of your Lordships’ International Agreements Committee, endorsed by an overwhelming vote in your Lordships’ House; of the Constitution Committee, including three former Conservative Ministers and a former No. 10 chief of staff; and now the majority report of the Joint Committee on Human Rights. I will assume that some members of those committees will speak, so I will leave them fully to outline the clear results of their deliberations.

None the less, as your Lordships overwhelmingly decided to give this Bill a Second Reading, I will approach the task of amendment in the spirit of constitutional compromise, seeking to amend the Bill in line with the Government’s desired policy of offshoring asylum decisions while also seeking to comply with the Supreme Court’s decision and the unequivocal advice of your Lordships’ International Agreements Committee and Constitution Committee—this notwithstanding my personal objection to transporting human beings for processing, which will no doubt be subject to further political and legal scrutiny in the months and years ahead.

For present purposes, I take the Government at their word—even if that word has been put rather belligerently to the Supreme Court and your Lordships’ House. I will assume that the Government do not want to put the Executive of the United Kingdom on a collision course with our Supreme Court or our international legal obligations, so amendments in this group seek to offer a way through the stalemate for people of good will from all sides of your Lordships’ House. Amendments 1, 2, 5 and 34 in my name are supported by the most reverend Primate the Archbishop of Canterbury, the noble and learned Baroness, Lady Hale of Richmond, and the noble Viscount, Lord Hailsham. I have signed Amendments 3 and 7 tabled by the noble Viscount. The noble Lord, Lord German, has Amendments 11 and 12.

Your Lordships’ Constitution Committee warned of a number of concerning trends in the present Government’s approach to our constitution and our courts, which seeks, for example, to disapply the Human Rights Act for particular unpopular groups rather than repeal it wholesale for everyone. I observe another new fashion in adding a lengthy introduction to a relatively short Bill that deems facts changed, making its purposes so clear that the courts should be wary of interpreting the legislation as they might otherwise do. However, since the arrival of this Bill in your Lordships’ House, the Prime Minister has stated—by a press conference, but stated—that his Rwanda Bill was designed to assuage the concerns of the Supreme Court.

Therefore, Amendments 1 and 2 add a secondary but essential purpose to the primary purpose of preventing and deterring what the Government see as unlawful migration. This purpose is to

“ensure compliance with the domestic and international rule of law by providing that no person will be removed to the Republic of Rwanda by or under such provision”

unless two conditions are met. The first condition is that there is advice from the UNHCR that Rwanda is now safe; for example, as a result of the successful implementation of promised reforms and safeguards to the asylum system there. The second condition is that this advice has been laid before both Houses of Parliament.

Now, some may balk at what they regard as a foreign body having any role whatever in the assessment of facts on the ground in Rwanda. However, as the Joint Committee on Human Rights noted, our Supreme Court’s concerns about the lack of safety there were in no small part in the light of unequivocal expert evidence from the UN High Commissioner for Refugees, with its special expertise and role under the refugee convention.

If the Executive is now asking Parliament to become complicit in overturning findings of fact by our Supreme Court—this is made explicit by Amendments 3 and 4 in the name of the noble Viscount, Lord Hailsham—it should at the very least allow Parliament to hear advice from the expert body that the Supreme Court found so authoritative before allowing facts to be deemed as having changed. Accordingly, Amendment 5 replaces the edict that Rwanda “is” safe with that belief that it “may become” so, because it should be our unanimous aspiration that the whole world becomes a safer place for persecuted and displaced people.

Further, as even an independent expert body should never usurp the fact-finding jurisdiction of our courts, especially in dangerous and fast-changing times, Amendment 34 makes it clear that even clear and positive advice from the UNHCR would create only a “rebuttable presumption” that Rwanda is safe. In keeping with earlier legislation, as observed by the Constitution Committee of your Lordships’ House, it would not hobble our courts with an absolute conclusion. Yet, if the Government are really so confident that that Rwanda treaty, unlike the refugee convention so long before it, will be implemented so as convincingly to render that country safe, they have nothing to fear from either these amendments or our courts. I beg to move.

Lord Howard of Lympne Portrait Lord Howard of Lympne (Con)
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My Lords, I must begin by apologising for the fact that I was abroad at the time of Second Reading and was therefore not in my place at that time. Much was made at Second Reading of the notion that the Bill in some way contravenes our constitutional principles, is an affront to the separation of powers, and infringes on the power of the judiciary. Those allegations are thoroughly misconceived but they are highly relevant to this amendment.

The plain fact is that we are a parliamentary democracy. That means that Parliament is sovereign and the reason why so many of us cherish that overarching principle is that we attach high importance to something called accountability. Accountability was not a word which featured very large in your Lordships’ debate at Second Reading. The courts are accountable to no one; they proudly proclaim that fact. Many of the bodies to which Parliament has in recent years outsourced some of its responsibilities have little, if any, accountability. But Parliament itself, or at least the other place—the House of Commons, in which I was privileged to serve for 27 years—is truly accountable. It is answerable to the British people at regular intervals and its Members can be summarily dismissed.

There are those who seem uncomfortable with our system and it is indeed true that there has been something of a whittling away at it in recent years. The courts have extended their power. Parliament itself has contributed to it by the outsourcing to which I referred. I often think it is a pity that those who praise these developments failed to come up with some suggested alternatives to parliamentary democracy, but there it is.

These amendments, if passed, would mark a new jump in this process. I ask those who support them to address the question of accountability. To whom is the United Nations High Commissioner for Refugees accountable? They might say to the General Assembly of the United Nations, perhaps. To whom is that body accountable? Neither the high commissioner nor the General Assembly have any responsibility for securing our borders. They have no responsibility for the safety of those who make the perilous channel crossing. They have no duty to take into account the resentment felt by so many against the sheer unfairness of illegal immigration and the way in which it gives preference not to the most deserving, but merely to those who can afford to pay the people smugglers.

Our elected Government and this Parliament bear those responsibilities, and the House of Commons is directly accountable to the electorate for the way in which those responsibilities are discharged. These amendments would prevent our Government and Parliament discharging those responsibilities. They seek to outsource those responsibilities to an unelected body with no accountability. The acceptance of these amendments would constitute nothing less than an abdication of the responsibilities of government. I note without surprise—

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Lord Hannay of Chiswick Portrait Lord Hannay of Chiswick (CB)
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I thank the noble Lord for that point. He interrupted me before I got to the answer to his question—but that is fine. I had been going to say that the doctrine, according to the noble Lord, Lord Howard, is that every member that has signed the refugee convention—well over 150, I think—and ratified it, including our sovereign Parliament, has the right to reinterpret the convention as it wishes. You have only to stop and think for one minute what that implies to realise that it implies complete chaos and the law of the jungle. If all 150-plus members of the United Nations refugee convention are able to stand up and say, “Well, actually, this is what I think the convention means, and I don’t care a damn what the High Commissioner for Refugees says”, then we are living in chaos. It is to avoid that that these amendments are being put forward.

I strongly support the arguments of the noble Baroness, Lady Helic, who expressed extremely eloquently the reason this country has a real interest in paying attention to these matters.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I thought it might help the Committee, before this debate with the noble Lord, Lord Howard, rumbles on, for me to clarify that he is quite right. This amendment, as currently drafted, requires positive advice from the UNHCR, and not just advice, positive or negative. In the current iteration of the amendment, the reason for that is that the Prime Minister expressly said that the Bill is designed to assuage the concerns of the Supreme Court, which were based predominantly on the negative advice from the UNHCR about the situation in Rwanda—such was the nature of the evidence of the UNHCR and the credence that our Supreme Court gave to it.

However, if that formulation is too rich for their blood, the noble Lord, Lord Howard of Lympne, or the Government, are welcome to amend the amendment or offer their own, which requires only advice positive or negative by the UNHCR before either the Secretary of State or Parliament can look again at whether Rwanda has changed subsequent to the treaty and is now, or in the future, a safe place for asylum seekers and refugees.

Lord Hannay of Chiswick Portrait Lord Hannay of Chiswick (CB)
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My Lords, I do not wish to pursue that course at all. I am not one of the proposers of this amendment; I am merely supporting it.

The arguments that I am adducing relate to the state that this country would be in if it issues forth into the world and says it has an absolute right to interpret a United Nations convention which it ratified many years ago, and which it has supported through thick and thin ever since, and now wishes to contradict. That is a serious matter and I do not believe that the arguments of the noble Lord, Lord Howard, ought to carry weight, because the implications of them for our position in the world and our support for a rules-based international order would be extremely damaging.

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Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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And write to me with the answer.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I am grateful to all Members of the Committee from around the Chamber for the constructive manner and tone with which these proceedings on the first group have been conducted. Noble Lords will forgive me if I do not mention every excellent contribution; they will understand that is not a discourtesy to Members of the Committee, but, I hope, a bit of kindness to those who have amendments to follow this evening.

I am particularly grateful to the noble Lord, Lord Howard of Lympne, for following immediately, because he was able to crystallise some key issues between us, on my suite of amendments as well as on all the others in the first group. In essence, he had two points: one that I can embrace to some extent, and another that I cannot. I think that he was the first to point out that, in the way that I have formulated my suite of amendments, I have given perhaps too determinative a role for the UNHCR. I explained the reason for that: it was because the Prime Minister said that he was going to assuage the concerns of the Supreme Court. None the less, I take the noble Lord’s point—which was echoed by subsequent speakers, if less robustly—so I hope not to create a determinative role for the UNHCR in the next stage of proceedings, although I also note that many Members of the Committee, including the Minister, referred to the important part that the UNHCR plays in the world on refugees and the convention.

However, the second crucial point—

Lord Howard of Lympne Portrait Lord Howard of Lympne (Con)
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Before the noble Baroness goes to the point where she disagrees with me, I thank her for her response to the first point I made. Of course, I do not speak for the Government, but no doubt we will consider the matter further when we get to Report.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I am again grateful to the noble Lord. However, his second central point was the big constitutional one: that Parliament is sovereign—that is pretty much it—and that the Supreme Court’s decision on 15 November was mere opinion rather than a determinative finding of fact in our system. I am afraid that I must disagree with him on that, in essence for the reasons outlined later in the debate by my noble and learned friend Lord Falconer. He in turn echoed some of the points made by the noble Lord, Lord Clarke of Nottingham, at Second Reading about the dangers that lie in the future should it be possible, in our country, for Governments with large majorities, of whatever stripe, to use legislation to change not only any old finding of fact but a finding of fact that was made recently by our highest court. That is not only silly, to echo the noble and learned Lord, Lord Garnier, but very dangerous in a democracy that is built, fundamentally and first, on the rule of law. Parliamentary sovereignty follows, but Parliament, and the Executive in particular, must have a little respect for the independent referees of our democratic system.

I was grateful to the noble Baroness, Lady Helic, for making the international point that follows from that: that the domestic rule of law is the bedrock of our system, but a quarter of the way into the 21st century, so is the international rule of law. All sorts of terrible consequences come when we do not respect that. She cited wars of aggression and war crimes that, in turn, drive a displacement of people that is leading to the refugee crisis that Governments around the world are trying to respond to. Therefore, she is a great proponent of the international rules-based order, as we know from her other work.

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Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
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It is a breach of international law. The noble Lord made the same point when we had the same debate at Second Reading. It is at variance with the refugee convention and with the European Convention on Human Rights Articles 2, 3 and 13. It may be that in the UK domestic courts it is not seen as a problem; it certainly does not seem to be seen as a problem by the noble Lord, Lord Murray. For me, it is a problem. For a country which purports to support the international legal system, it should be a problem.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I do not think the Committee needs to apologise for an element of repetition and even circularity in contributions on the various groups, because that is the nature of the Bill before us. It is a relatively short Bill, but its provisions are interconnected, as are the different approaches that Members of the Committee have taken to amend them.

Let us take stock for a moment, because we have been on a bit of a stream of consciousness. Members of the Committee have expressed different opinions about whether offshoring per se is acceptable. To my mind, the exchange we have just heard reveals that we do not currently have legal authority in the UK that says that processing asylum claims in another country is unlawful. I agree with the noble Lord, Lord Murray of Blidworth, on that, but I have to say that my instincts are with the noble Lord, Lord Kerr of Kinlochard, on the fact that this is going to be debated for many years to come and we have not had higher court determination of it. It is a debated point internationally. That is a point we can put aside for the moment. There is another question in this Bill, about what is and what might be in the future.

I think that most Members of the Committee have either agreed or even reluctantly conceded that what is is a little different from what we are working on and what might be in the future, which then takes us to how we change the future and how we evaluate changed facts in the future. Then, under the scheme of what is before us, there is first the question of the treaty and then the question of the Bill before us that the Government propose to make an Act. I think there is some considerable support for Amendment 14, which says that the treaty—which is currently a very important trigger in the Government’s scheme, because it is the treaty coming into force that makes the Act come into force—needs to have been effectively implemented, so that facts change on the ground in Rwanda before even the treaty that is the current trigger for the Act can come into force. I certainly agree with that. There are different approaches in the amendments as to how that should be measured, but I think it is just logical that until the treaty, as suggested by your Lordships’ International Agreements Committee, is effectively implemented, even under the scheme of the Bill as drafted, the Act should not come into force.

Then we have a range of amendments offered in subsequent groups about what commencement should look like in the Bill, and later we will have very important debates about judicial oversight and not ousting the jurisdiction of both domestic and international courts.

Lord Horam Portrait Lord Horam (Con)
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I have two points. First, to correct the noble Lord, Lord Kerr, there is precedent in the Australian situation, in that, under the Australian rules, the Government of Nauru make the decisions, with assistance, training and support from the Australian Government. The Rwanda situation is exactly the same. We are trying to bring in training, support and assistance to the Rwandan Government, so the two examples are exactly the same. Australia’s, which has been working successfully for 10 years, has all-party support and is hugely successful. If I may repeat the point I made earlier in the day, there is a great prize here: if we can get genuine agreement on this subject, there is the prize of having a proper, whole immigration policy which the whole country can support, not just this Rwanda business.

Lord Horam Portrait Lord Horam (Con)
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The people who are being investigated in Nauru want to go to Australia. Similarly, the people who will be investigated in Rwanda want to come here. The situation is exactly the same.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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Within that debate about processing and offshoring is a question as to whether, if you succeed in your asylum claim when you are processed over there, you then stay over there or come back to the country from which you are sent. That is a crucial debate that is being fudged here.

Lord Horam Portrait Lord Horam (Con)
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The situation here is exactly analogous to that in Australia, which has been working successfully for 10 years.

The other point in this debate, in reference to the interesting amendment from the noble and learned Lord, Lord Hope, is the importance of the monitoring. I agree with him and the noble Lord, Lord Anderson, that the more transparent and obvious this is, the better it will be for everyone. Fundamentally, we cannot expect the law to do everything. We all know that there are many laws which are not adhered to in practice. It may go wrong on the ground floor in a way that lawyers, for all that has been said in the treaty, are not aware of until it is too late. You therefore need a strong monitoring committee whose information is available to this House and the general public, because you cannot do it any other way. The law cannot encompass what may happen in future.

That is a crucial point from this debate. I would have thought that my noble friend the Minister could accommodate the relative transparency of the monitoring committee, which has independent people on it. The noble Lord, Lord Kerr, may not like some of them because they disagree with him, but the committee is none the less independent. Precisely because of that, it will have people of differing views. The Government should look at that in response to the tone of this debate.

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Viscount Hailsham Portrait Viscount Hailsham (Con)
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My Lords, I will speak also to Amendment 13. I will be very brief, because the hour is late. At this time I am usually putting my dogs out, but on this occasion I have the pleasure of addressing your Lordships’ House.

The effect of Amendment 9 is to delete Clause 1(4), and the effect of Amendment 13 is to delete Clause 1(6). It is worth just reminding your Lordships what these two clauses say. Clause 1(4) says:

“It is recognised that … the Parliament of the United Kingdom is sovereign, and … the validity of an Act”—


any old Act, incidentally—

“is unaffected by international law”.

You then go to Clause 1(6) to see what is meant by “international law”, and that is everything to which we have ever put our name, which is there in very considerable detail. So the first question that your Lordships should ask yourselves is, why on earth is it there? I have no doubt that, as a matter of strict law, the statements are correct, but why are they there? They serve no legislative purpose whatever. I think I know why they are there: it is to provide comfort to the Braverman wing of the Conservative Party—and I, for one, do not wish to provide comfort to that wing of the Conservative Party, which has been bringing disrepute on the party which I have served for 40 years.

We then go on to consider: does it serve a purpose? Clearly, it does not. But what it does do is damage our reputation for probity, because any bystander reading the Bill will come to the conclusion that the given word of the United Kingdom, expressed in treaties and in international law, is not worth credit. I do not wish to give people that interpretation. Nor, for that matter, does the report of the Select Committee on the Constitution of your Lordships’ House, published on 9 February.

I commend to your Lordships paragraphs 54, 56 and 57. Paragraph 54 acknowledges that it is true that the validity of an Act of Parliament in domestic law is not affected by international law. Nevertheless, the United Kingdom is still subject to the provisions of international law. Paragraph 55 states:

“We agree with Lord Bingham that respect for the rule of law requires respect for international law”.


Paragraph 56 states:

“Legislation which puts the UK in breach of international law undermines the rule of law and trust in the UK in fulfilling future treaty commitments”.


The summary section, paragraph 57, states:

“We reiterate that respect for the rule of law requires respect for international law. Legislation that undermines the UK’s international law obligations threatens the rule of law”.


It concludes:

“We invite the House to consider the consequences should the enactment of this Bill in its current form breach the UK’s international obligations”.


These two clauses are unnecessary. They are damaging to our reputation, serve absolutely no legislative purpose and should be removed from the Bill. I beg to move.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I am very proud to have signed the two amendments tabled by the noble Viscount, Lord Hailsham. When I first looked at them, I thought that, given the scale of obscenity that this Bill perpetrates, maybe this is flotsam— maybe this is just stating the obvious that for many years we have passed Acts of Parliament and sometimes aspects of domestic legislation have subsequently been found to be in breach of international law. As a matter of domestic law, a statute is not automatically invalid because it breaches international law without incorporation of the kind that we had with the EU and the Human Rights Act.

However, having spoken to the noble Viscount and thought again about the contemporary implications of provisions such as those in Clause 1(4) and Clause 1(6), I felt compelled to agree with him and to sign up to his amendment. We are sending a signal, initially to domestic civil servants, diplomats and Ministers, including in the context of the Ministerial Code, that we do not think our international obligations matter. That is a very significant cultural concern. It was perhaps the noble Viscount who made the point in relation to the Rwanda treaty earlier that we are saying, in the context of this Bill as a whole, that it is going to be alright, that Rwanda is not just going to be safe in the future but we can assume that is it safe now because of this treaty, this international binding agreement that Rwanda will of course respect because it is binding in international law—while simultaneously we are saying that international law does not affect the validity of UK law.

That is an extraordinary position, and an extraordinary position to put UK civil servants in—whether in the Border Force or the Home Office or whether they are diplomats anywhere in the world. Perhaps my noble and learned friend Lord Falconer of Thoroton will comment on this in a while as a member of the Constitution Committee. There are real tensions for Ministers and their duty to comply with the rule of law to put a provision such as this in primary legislation, notwithstanding the traditional point about the delicate relationship between the validity of domestic law and international law.

Then there is the bigger, existential question. At this particular moment in the world, in its state of insecurity, the United Kingdom’s position on Russia and Ukraine, events in the Middle East, Houthis and China is to say that international law matters. Across the Atlantic, Mr Trump has made some remarkable comments about his NATO allies. We are saying one thing, including with our arms, military support and rhetoric, about the importance of international law—“Do not breach it, because if you do, you will find us standing in your way”—while we pass a provision like this at the same time. I apologise to the noble Viscount for not seeing the vital importance of his amendments to begin with, but I certainly do now.

Week after week your Lordships’ House has noble Lords, including Ministers, talking about various parts of the world and the importance of the UK as a permanent member of the Security Council, and everything it will do and has attempted to do over many decades, including by military force, to uphold the international rules-based order— and then there is a dinner break or a change of personnel, and we have the Home Office back here saying that it will pass legislation to state that international law does not matter. That cannot continue. For those reasons, I am proud to support the amendments of the noble Viscount, Lord Hailsham.

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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 noble Lords who have participated in this debate, which has been a far-ranging one given the nature of the amendments. Clause 1(4)(a) and (b) states that it is recognised

“that the Parliament of the United Kingdom is sovereign”

and that

“the validity of an Act is unaffected by international law”.

That is a statement in conventional terms of constitutional reality. My noble friend Lord Murray of Blidworth expressed it with his characteristic clarity and concision. We have heard nothing in this debate—not from my noble friend Lord Hailsham, not from the noble Baroness, Lady Chakrabarti, not from the noble Lord, Lord German, on the Liberal Democrat Benches—to disturb that reality.

I will take matters out of the order in which they were presented, to deal with them conveniently. The noble Lord, Lord Coaker, replying a moment ago from the Opposition Front Bench, asked for a word about the status of the instruments enumerated in Clause 1(6). Following on from what I said, it is not the case that the Bill jettisons those commitments. It says—as my noble friend Lord Murray of Blidworth said—that this provision exemplifies what is meant by international law. When it lists these provisions, it does so for the purpose of stating what is, again, the constitutional reality—that the validity of an Act is unaffected by international law. That includes those provisions. That is and always has been the case. I appreciate that not all Members of the Committee think that it should be the case. We have heard cogent submissions from Members of the Committee to that effect. However, the point is that it is the case until such time as Parliament decides otherwise.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I shall be brief. Why did the Minister put that on the face of the Bill, when all the lawyers in the Committee agree that, as a matter of domestic law, unless a treaty is incorporated directly, it is not justiciable in the UK courts? None the less, as a matter of international law, our word is binding. My noble friend Lord Coaker made it very clear why it is so important in this dangerous world that our word should be binding. If this is just a statement of domestic law, why was there the need to put it in the Bill? Is it because the Minister wants to show a bit of ankle to his friends who are pushing even further to the right with their amendment? What on earth are the Government trying to signal with this kind of statement in primary legislation?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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There are a number of points that I could address there. As for the matter of me as a Minister showing ankle—the noble Baroness of course speaks metaphorically—I found it as difficult to comprehend as I found the references to a “Braverman wing” of the Conservative Party.

I go back to the submission of the noble Baroness earlier on. International law, as she is well aware, operates on the international plane, not on the domestic plane. There could be no greater restraint on state action than a treaty, and that is what the Government propose to deliver. She gave a submission earlier about the implications for Ministers and indeed for civil servants. To reassure her, I say that this does not bear on the actions of civil servants fulfilling their duties to assist the Government.

The noble Lord, Lord Hannay of Chiswick, referred to Section 19(1)(b) of the Human Rights Act. He was, I think, disparaging about the use of that provision, as opposed to Section 19(1)(a), which more familiarly is a statement given by the promoter of a Bill that, in his or her view, it is lawful. Of course, there is nothing unusual about the use of Section 19(1)(b) in these circumstances; it is entirely appropriate, which is why it appears in the Bill. It was used, for example, by the last Labour Government in, I think, the Communications Act 2003—I might be corrected on that, but it has been used by Labour when in government in those circumstances.

Safety of Rwanda (Asylum and Immigration) Bill Debate

Full Debate: Read Full Debate
Department: Scotland Office

Safety of Rwanda (Asylum and Immigration) Bill

Baroness Chakrabarti Excerpts
To sum up, the rationale for supporting these amendments is that the UK has international obligations to victims that do not appear to be compatible with the proposals in the Bill and the treaty. There is uncertainty about the identification of victims under the Illegal Migration Act 2023, which flows into this Bill, and the Home Office has not adequately demonstrated that Rwanda can provide the necessary support for victims of modern slavery, despite the treaty obligations. For all those reasons, I support these amendments. I hope that the Government will give them proper consideration and certainly make exceptions in the cases of these ex-servicemen and people who have been shown to have been trafficked.
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, it is always a privilege to follow the noble Lord, Lord Alton, with his decades of human rights advocacy, often at personal risk from some of the rather terrifying regimes around the world that he has criticised. It has also been a privilege to sit in this Committee and listen to the contributions, to remind the Committee, from a former Chief of the Defence Staff, a leading jurist, a former chair of the Conservative Party, and, of course, my noble friend, a former Defence Secretary.

I say to the noble Lord, Lord Horam, with whom it is always a pleasure to engage, on his coach and horses concern that, on one level, he is quite right. The testimony and stories we have heard in relation to all these exemption amendments—I support them all—do indeed highlight the overall illogicality and cruelty of the Bill. There is no doubt about that, but I do not want to rehearse that.

We established last time that Rwanda is not yet safe for any asylum seeker or refugee. We have already argued, and will argue in subsequent groups, that discretion should not be totally squeezed from the Secretary of State’s hands, that the judiciary should not be ousted, that safety should only be a rebuttable presumption and so on. Their testimony bears witness to all the structural problems of the Bill that need to be tackled.

However, I put it to the noble Lord, Lord Horam, in the light of what we have heard about, for example, children, people who have been enslaved and trafficked against their will or those who have put themselves in harm’s way at the service of the British state, that even if Rwanda becomes safe and one agrees with the noble Lord—I do not, but I am on this journey—that it is acceptable to transport human beings for asylum processing, these groups should never be so transported for the reasons that have so compellingly been given.

Some of them, the children and the trafficked people, had little or no say in their arrival in the UK in the first place. Certainly, deterrence can never speak to them and their situation. Then there is the group that my noble friend Lord Browne so ably addressed; we should not dream of deterring them. We made a promise to them and they have paid for it, many of them in courage and blood. How dare we! I am actually rather ashamed that my noble friend had to table an amendment of that kind at all. The people to whom we made that promise will be spared, only because, when he questioned Ministers on 5 February for a relatively lengthy period, they were not able to explain the position once the Secretary of State’s hands are tied and he is under a statutory duty to send people to Rwanda because they came by an irregular route.

So I say to the noble Lord, Lord Horam, whatever our disagreements about the policy as a whole, the Bill in general and all the amendments that I hope will make it a little better, that he must take a different position over the exemptions in this group.

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
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It has indeed been a remarkable debate, as the noble Baroness says. Her own contribution maintained the high standard that has been set; I shall now lower it. I have two small points to make.

First, I strongly support Amendment 75, so ably addressed by the noble Lord, Lord Browne of Ladyton. It extends the exemption not just to the Armed Forces but to any agent, ally or employee of the Crown abroad. That brings in the British Council and the British high commissions and embassies. The noble Lord, Lord Hannay, has frequently drawn attention to the endangered staff of the British Council in Afghanistan. I strongly support this amendment.

It is also relevant to note, in the context of Amendment 75, that Rwanda has never granted asylum to any Afghan, whereas our acceptance rate of asylum claims from those arriving by small boats is 99%. That proves that people who have turned up here from Afghanistan asking for asylum have a very real reason to have fled. Our processes have checked that their cases are valid; they are fleeing a risk of persecution. Rwanda’s track record suggests that their reception might not be as unbiased there as it here, even if the changes introduced by the treaty come into effect in Rwanda. So I strongly support Amendment 75 and I hope we all do.

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Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB)
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My Lords, I rise in place of the noble Lord, Lord Carlile, to speak to Amendments 19, 21, 25 and 28, in his name and in mine, which are also signed variously by the right reverend Prelate the Bishop of Manchester, the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Etherton. We are all grateful to Justice for its assistance in drafting these simple but important amendments.

The purpose of these amendments is to replace the irrebuttable presumption in Clause 2 that Rwanda is a safe country by a rebuttable presumption to the same effect. Decision-makers would begin from the same position that Rwanda is safe, but they would be entitled to consider credible evidence to the contrary. That is provided by Amendments 19 and 21, which amend Clause 2(1).

Amendment 28 supplies more detail by indicating the matters on which evidence could, if it is available, be presented: the risk of refoulement from Rwanda, the risk that there will be no fair and proper consideration of an asylum claim there, and the risk that Rwanda will not act in accordance with the treaty. These are all things that, under Clause 2 as it currently stands, may not be considered by independent courts and tribunals. They are not only relevant but of the highest importance to the lives and safety of anyone we send to Rwanda.

Finally, Amendment 25 would lift the bar on courts and tribunals considering claims that Rwanda is not safe. It is the logical corollary of Amendments 19 and 21: if decision-makers are entitled to consider credible evidence that Rwanda is not safe, the courts must be entitled to do so in order to determine whether they came to a lawful decision. Amendment 29, from the noble Lord, Lord Coaker, is welcome, but without an equivalent of Amendment 25 I am afraid that it does not do the job.

These amendments would not open the floodgates to vexatious claims. To be considered, any evidence must meet the credibility threshold—a well-established feature of Home Office practice, which, in a policy document entitled Assessing Credibility and Refugee Status in Asylum Claims Lodged on or After 28 June 2022, highlights a number of so-called credibility factors, including sufficiency of detail, internal consistency and plausibility.

To summarise, Clause 2, as it came to us from the Commons, requires officials to disregard relevant facts and prevents the courts calling them to account for it. With Clause 1, it creates a legal fiction—not in the field of tax law or planning law, where such things have their place, but in the totally different context of human safety and its opposite. It suppresses the evidence-based inquiry on which our common law and, ultimately, our democracy depend. Accept this and, as the noble Lord, Lord Hennessy, said in his Second Reading speech, with all his constitutional expertise:

“We shall be living in a different land, breathing different air in a significantly diminished kingdom”.—[Official Report, 29/1/24; col. 1022.]


These four amendments would enable those entrusted with these sensitive decisions to look at Rwanda as it is, not as we all hope that it may become. But I must acknowledge that, for this very reason, they go to the heart of this Bill, for it is not a bright by-product of this Bill but its whole purpose to assert to be true what first the Supreme Court and then our International Agreements Committee have found to be false, and then to protect that false assertion from rational challenge by decision-makers or in the courts.

This is not, like the previous group, a debate about exceptions. The deterrence theory on which the Bill is founded has the unfortunate result that it is the most objectionable features of this Bill to which the Government hold most tightly, even when, as here, they set a thoroughly depressing precedent. There are limits to my optimism that the Minister will respond positively to these amendments but, knowing him and respecting him as I do, I do not altogether abandon hope.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I support the noble Lord, Lord Anderson, who has put his case with the precision and succinctness that we remember of our late friend Lord Judge. These amendments would render the safety of Rwanda, which we hope will come in the future, a rebuttable presumption rather than an absolute conclusion. They echo my Amendment 34, which we discussed in the first group, but put more flesh on those bones. I commend them to the Committee.

I also remind the Committee that the amendments echo a finding by your Lordships’ Constitution Committee. Ministers say that it is precedented and normal to have lists of safe countries in asylum statutes. That has been the case in the past, but in those past cases the consequence of being a safe country on a so-called and unfortunately coined white list of countries has been only a rebuttable presumption. So Ministers were wrong, for example, to say during the course of the Illegal Migration Act, “Nothing special here, nothing new”, when they said that it will be an absolute conclusion and irrebuttable presumption that any country is absolutely safe.

We need to amend this Bill in good faith. We need belts and braces. We will have to look at other provisions and amendments around how it is that we will judge when Rwanda becomes safe, as we all want it to be. In any event, even when all the experts in the world—the UNHCR, independent monitors, parliamentary committees —say that things have gone well in the last couple of years and that the treaty worked out, and how wrong we were to be so sceptical as things have gone so well, so quickly, and Rwanda is considered to be one of the safest countries in the world for its treatment of asylum seekers and refugees, it is still right in principle that the presumption of safety should be a rebuttable presumption and not an absolute conclusion that squeezes out the judgment of civil servants, Border Force and Ministers, or ousts the jurisdiction of our courts.

Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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My Lords, I will speak to Amendment 30 in my name and that of my noble friend Lord Cashman and the noble Baroness, Lady D’Souza. I am grateful to them for their support and to Redress and RAMP for their help, and I refer here to my interests in the register.

This amendment would mean that Clause 2(1) and related subsections concerning the treatment of Rwanda as a safe country would not apply where

“torture … has taken place in Rwanda in the two years prior”,

or where the person concerned

“is themselves a survivor of torture”.

As such, it seeks to minimise the risk of torture arising from the Bill and to safeguard those who are survivors of torture.

The prohibition of torture is guaranteed by the UK through its ratification of various international and regional human rights instruments, particularly the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As a JCHR report on the Bill explains, UNCAT

“provides that a person cannot be removed to a State where there are substantial grounds for believing they would be in danger of being subjected to torture”.

The JCHR emphasis that this is

“a core principle of international law, to which the UK has committed itself on numerous occasions over the past 70 years”.

The existential significance of torture is underlined by a former UN special rapporteur on torture and professor of law, Juan E Méndez, who is himself a torture survivor. He says:

“Torture aims to dehumanise survivors through calculated acts of cruelty to remove the survivors’ dignity and make them powerless. It is a very serious human rights violation and an international crime. It is also a crime under UK national law, no matter where the torture was committed. Torture is forbidden under all circumstances and can never be justified”.


He is saying that this prohibition on torture is absolute and non-derogable, meaning that it cannot be suspended or restricted in any circumstances. This prohibition includes a ban on sending someone to a country where they are at risk of torture or where there is a possibility that they will be sent on to another third country where such a risk may exist. The amendment simply attempts to ensure that the first of these does not happen, while protecting those who have already been subjected to torture.

My noble and learned friend Lord Falconer of Thoroton referred to the issue of torture in the context of refoulement on Monday. However, this amendment concerns torture in Rwanda itself. Redress asked me to table this amendment because of consistent reports of torture being used in Rwanda by the military and the police. According to Human Rights Watch’s submission to the International Agreements Committee, serious human rights abuses continue to occur in Rwanda, including repression of free speech, arbitrary detention, ill-treatment and torture by Rwandan authorities.

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

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I assure the Committee that the Government of Rwanda are committed to this partnership and, like the United Kingdom, 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 both Rwanda and the United Kingdom’s compliance with international law in the form of the treaty, which reflects the international legal obligations of the United Kingdom and Rwanda.
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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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)
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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.

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Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, it is a great pleasure to follow the noble Lord, Lord Kirkhope of Harrogate, who was, of course, an Immigration Minister in the Home Office and therefore is not a “lefty lawyer” or someone who would be out to wreck any government legislation in this area. I want to say a little about disapplication of the Human Rights Act in general and a little in support of his amendment and to explain my probing Amendment 36.

In my lifetime, in different decades perhaps, both the main parties in this country have at times been divided on Europe. It is particularly sad that, for the party opposite, divisions over Europe have morphed into divisions over human rights and perhaps even the rule of law. As a self-identifying lefty human rights lawyer, I find that very sad because of the rich Conservative rights and rule of law tradition in this country, which was essential to the settlement that some of us are here to defend.

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As for domestic proceedings, for example, I once appeared in a judicial review case for some female litigants who were IRA prisoners. They were being strip-searched in a prison far more often than was appropriate or necessary, so I was able to argue before what is now called the Administrative Court in judicial review that the decision not to stop that strip-searching—a decision by a Minister—was Wednesbury unreasonable, as we would say in the law. That is the normal process we follow and what we are doing here, unless at the very least we include something like Amendment 33, is to allow for there to be no remedy which can be offered to that person sitting in the room with the barrister. I urge the Government to consider this amendment, offered from a highly respected member of their own party, so that it may be a way of finding a compromise which some of us, at least, will be able to accept.
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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Does the noble Lord share the concern, that I and various committees of your Lordships’ House have, that the declaration of incompatibility, by itself and without the other remedies and provisions of the Human Rights Act, is not an effective remedy for convention rights? That is the first part of my concern.

The second part is more political: if, because of this Act, the only legal court, as opposed to metaphorical court, that still has jurisdiction to look at the safety of Rwanda—for example, for torture victims—is the European Court of Human Rights in Strasbourg, the Prime Minister will have turned courts into foreign courts. The collision course between the UK and the Strasbourg court will be determined.

Lord Carlile of Berriew Portrait Lord Carlile of Berriew (CB)
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On the noble Baroness’s first question, I agree with the sentiments that she expressed earlier.

I will answer her second question slightly differently: I am puzzled by the hostility that some in the governing party show to the European Court of Human Rights. My understanding is that, on a weekly if not monthly basis, our Government call the European Convention on Human Rights into use to justify government arguments in individual cases. I do not understand that the Government are saying that they do not want to use the convention to their advantage anymore; it is done on a very selective basis for a small number of cases, and generally against the justice of those cases.

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Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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My Lords, tempted though I am to engage with the noble Lord, Lord Kerr, on that very interesting philosophical question, that might be beyond the ambit of this particular amendment.

I will speak in particular to Amendment 33, which I oppose because it has no purpose. I remind the Committee that Section 4 of the Human Rights Act provides to the courts, at High Court level and above, a power to make a declaration of incompatibility, but the section itself is clear. Section 4(6) of that Act sets out in crystal clear terms:

“A declaration under this section (‘a declaration of incompatibility’) … does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and … is not binding on the parties to the proceedings in which it is made”.


In those circumstances, the noble Baroness, Lady Chakrabarti, said that this amendment is required to preserve some sort of responsibility belonging to this Parliament. That seems to be a misreading of Section 10 of the Human Rights Act, which provides a power to take remedial action. The important part in Section 10(2) says:

“If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility”.


It is therefore clear that, if there is a declaration of incompatibility, the default setting is that the law continues as passed by this Parliament. Therefore, there is no need for the amendment proposed by my noble friend Lord Kirkhope because it is clear that, if no remedial order is laid, the law remains as it is.

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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I will give way to the noble Baroness, Lady Chakrabarti, in a second. The very idea that, in some way, the argument would be better achieved by accelerating the process is simply mistaken, not least because Section 10 says that the declaration of incompatibility can take effect only following the conclusion of the final appeal and confirmation by the parties that that is so. That is likely to be a long time afterwards, given the nature of the types of cases that tend to go to appellate courts. So there is no need for Amendment 33. I give way.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I am grateful to the noble Lord for giving way. I am intervening because he referred to something I said. Let me be clear: I totally agree with his analysis that Section 4 declarations of incompatibility have no binding legal effect; I think that I said so and emphasised that in my remarks. I referred to that as part of the exquisite constitutional compromise between parliamentary sovereignty, on the one hand, and the rule of the law, on the other, that is the Human Rights Act’s scheme.

I am delighted that the noble Lord, Lord Murray of Blidworth, knows the scheme so well and is seeking to honour it so well. In fact, when he reads from Sections 4 and 10, he treats them as sacrosanct—something that the Government do not generally do in relation to the Bill. If it is okay for the Government to disapply reams of the Human Rights Act for the purposes of sending some of the most vulnerable people in our territories to Rwanda, why should his noble friend—the noble Lord, Lord Kirkhope—not be able to improve on the Human Rights Act too, by accelerating the procedure for bringing a declaration to Parliament, rather than to the Government, for consideration?

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I submit that the declaration of incompatibility procedure has worked well: it has served Parliament well. The strength of it is seen by the rarity with which Governments do not act in reflection of such declarations when they are imposed. I do not agree that they do not provide an effective remedy. I think that we are required to bear that in mind when we consider the desirability or necessity of my noble friend’s amendment.
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.

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Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
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I am grateful to the noble Lord and, to some extent, I agree with him. If we have a legal migration system that has been a catastrophic failure, and the Government then seem to wish to scapegoat those fleeing conflict or danger to claim asylum here, I am not surprised that this dominates the debate. But the Government should not look at us when it comes to that situation.

I found it interesting that, when I asked the noble Lord, Lord Green, who supports this Bill, what impact it would have on that point with regards to the backlog—the Wembley Stadium—he gave me an honest answer and said that he did not know. I think he said that the Government do not know; I think he said no one knows. Yet we have paid nearly £400 million not to know. It is the most expensive question never to be answered in the history of the Treasury.

It will get worse, and Amendment 74 therefore tries to get a bit more detail about this. The noble Lord, Lord Coaker, is absolutely right. The Permanent Secretary did not seek ministerial direction simply, as the Minister alluded to before, because there was maybe a question around this, because it is novel. The Permanent Secretary is the accounting officer; it is his duty to say whether a policy would be value for money for the British taxpayer. He was unable to do that, so he asked to be overruled by the Minister. What was quite extraordinary was that, as we now know from his submission in December, part of the ministerial direction was not to tell Parliament of an extra £100 million that was given as a second tranche under this scheme—another large swathe of funding.

We were told by the noble Lord, Lord Murray, during the passage of what became the Illegal Migration Act, that the costs of the scheme were dependent on a per-person basis. That was correct, but we now know that it was not the full answer. Part of the scheme will be on a per-person basis, but the £100 million was a credit line to the Government of Rwanda. So I would like the Minister, when he responds to this debate, to be quite clear and to tell us what that credit line is being used for. We do not know and, if the court of Parliament is to make a judgment, we need a bit more evidence.

The Hope hostel, which is the receiving centre for the people who are due to be relocated, is a private business. It is operated on a private sector contract and the Government say that they will not release information about what we are paying for because it is a Rwandan private sector contract. The Minister said to me in his letter that the Home Office cannot divulge information about the contracts that other countries have made—but we have paid for it. Not only have we paid for it, we will be paying for it. So I would be grateful if the Minister could tell us if there will be another tranche of funding for the Hope hostel in the next financial year, because it is on an annual rolling contract.

This issue also comes down to the fact that that centre can accommodate 200 people, with a typical processing time of a fortnight, I was told. So that will be a maximum of about 5,000 people a year, unless there are Hope hostels 2, 3 and 4 that we will be paying for. We do not know yet. If that is the case and we look at the Wembley Stadium backlog of at least 90,000 people, at 5,000 people a year it is going to take nearly 20 years to clear it.

So far, it has cost just shy of £400 million. What if it is on a per-person basis? That is where the noble Lord, Lord Murray, was absolutely right because, after we pleaded for the impact assessment of the Illegal Migration Bill, he gave that to us and we were duly grateful. It shows that per-person relocation will cost £169,000, on Home Office estimates. I remind the Committee that that is £63,000 more than processing someone and them staying here in the UK. It is 60 grand per person more expensive to the British taxpayer to relocate them in a scheme that is going to take 20 years and has already cost us nearly half a billion pounds.

If it will be 5,000 people a year, what are we looking at if we times that by £169,000? In one year, that will be just shy of £1 billion for two flights. That is fine if this is about the headlines and the Prime Minister saying, “I’ve got the planes taking off”. It is not fine for the British taxpayer. It is equally not fine if the whole purpose of this was to be a deterrent, because the noble Lord, Lord Green, is correct in one respect: if you are clearing the backlog, you want fewer people to come in the first place. That would require a deterrent rate of 100%. The Government’s best estimate, on a medium-term basis, is that there will likely be a break-even point with a deterrent effect of 50%. That is in the impact assessment. So the Home Office itself is estimating that this whole deterrence scheme is just going to halve the number of boats.

We already know that that does not matter, of course, because the Prime Minister announced in the new year that the deterrent effect was working. But we know that it is not, so I would be grateful if the Minister could outline what has been spent within MEDP—the migration and economic development partnership—in a scheme-by-scheme, line-by-line and project-by-project statement. If the scheme came under official development assistance, it would have to be put down under the DevTracker. But it is not under the DevTracker system of transparency at the FCO: it is from the Home Office, so I would like to see the equivalent of that published and the Minister to state whether the rolling contract is to be paid for another year, going forward. I would be very grateful if the Minister could say, at the end of year 1 of this scheme being in operation—just year 1, I am not going to be too ambitious—what the deterrent effect, the total cost and the per-person cost will be. Ultimately, if we are talking about a Budget coming up, surely we should be straight with the British taxpayer.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I will introduce my Amendments 81 and 82 in this group, which I have the privilege of sharing with the noble Viscount, Lord Hailsham. I remind the Committee that the Government concede that this policy is novel and might even concede that it is controversial. There are grave concerns about whether Rwanda is currently safe and further concerns, raised eloquently earlier today, that even if it becomes safe at some point—for example, as a result of the successful implementation of the treaty—it may not be safe for ever.

Throughout these debates, the Government have relied heavily on the principle of parliamentary sovereignty—not executive sovereignty. That is why Amendment 81, which I share with the noble Viscount, Lord Hailsham, and which is supported by the noble Baroness, Lady Bennett of Manor Castle, makes commencement a matter for the Secretary of State but to be approved by the Joint Committee on Human Rights and both Houses of Parliament by way of resolution. It is hence not executive fiat. Currently, Clause 9(1) says:

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


Treaty ratification is for the most part a matter for the Executive, but if we are to be the high court of Parliament and oust the jurisdiction of the ordinary courts of the land, parliamentary sovereignty at the very least requires parliamentary commencement. I leave to the noble Viscount, Lord Hailsham, Amendment 82 on his system of rolling sunsets.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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I am most grateful to the noble Baroness and entirely agree with what she has said on Amendment 81. My amendment is an additional concept. The concern has become apparent in Committee that, if Rwanda can become safe, it may also cease to be safe. It is important that we should have in place a mechanism for determining if it becomes unsafe, so that the provisions in the Bill cease to operate. That is what my Amendment 82 seeks to do.

I have called it rolling sunsets, but this is what I have in mind: the amendment from the noble Baroness triggers the implementation of the Bill for a period of two years, in the circumstances that she set out, and at the expiration of that period, if the Government want another two years or any other period, they must get an affirmative resolution of both Houses. Before they can get that, the procedure outlined by the noble Baroness must be complied with, including a report from the Joint Committee as to safety. If they want to roll it on for a third period of two years and so on, each time Parliament would be given the opportunity of receiving a report and triggering the extension of the Bill. In that way, rolling assessments of safety could be provided.

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I am sorry; that is totally different, because the courts—I will give way to the noble Baroness.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I think we have got to the heart of this. I am concerned about the time, not just for Members of the Committee but for the staff, just before the one-day half-term. I think perhaps the noble Lord opposite is indicating the difference he sees between, for example, property rights and humanitarian rights to refugee protection, which have been rights recognised in this country for a very long time.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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Of course they are rights that have been recognised for a very long time, but that was not the point being put to me, as I understood it. On the property point, if you have property, you have a vested right in property. The court is declaring that you always have that right. First, you do not have a vested right in asylum; it is not a right vested into you. Secondly, the Bill does not take away a vested right you have. You still have the right of asylum.

I think the noble Viscount is saying that it changes it. The question was of retrospective legislation, which is a fundamental point raised by the noble and learned Lord. The question is whether this is retrospective legislation. For the reasons I have set out, I submit that it plainly is not. I apprehend that we will come back to this. I do see the time. Unless there are any other interventions, I will pause there.

Safety of Rwanda (Asylum and Immigration) Bill Debate

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Safety of Rwanda (Asylum and Immigration) Bill

Baroness Chakrabarti Excerpts
Lord Carlile of Berriew Portrait Lord Carlile of Berriew (CB)
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My Lords, we heard this debate opened with great clarity and legal exactitude by my noble and learned friend Lord Etherton, followed by a very good speech from the noble Lord, Lord Cashman. I am not going to go over all that again, but am I right in this simple analysis of the situation in which the Government seek to place individuals who might be affected by this law?

If I can produce compelling evidence that Rwanda is not safe for me—not my brother, but me—I am entitled to a decision from the Secretary of State, no less, or an immigration officer, that I should not have to go to Rwanda. If that decision is not made in my favour, I have all the advantage of the English legal system, through which I can judicially review the decision of the Secretary of State or the immigration officer. But if I can show that there is compelling evidence not that Rwanda is unsafe for me, but only that it is unsafe for a person like me, I am excluded from all the protection of the law, just because I cannot provide evidence that relates to me as a particular individual—who may, as it happens, not be as well-known as someone like me in Rwanda.

If that is the situation, how can His Majesty’s Government possibly justify that difference? It seems to me to be fundamentally unjust. If that is the case, I hope the Minister, who is very open with your Lordships’ House, will say so, so that the House can decide on Report how to deal with my noble and learned friend’s proposal.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, it is a pleasure, as always, to follow the noble Lord, Lord Carlile. On this occasion, it is fortuitous to follow him because—without repeating the brilliant points made by the noble and learned Lord, Lord Etherton, and my noble friend Lord Cashman, about the safety of Rwanda for particular groups, which are echoed in my noble friend Lord Dubs’ amendments on religious freedom—he pre-empts a point I want to emphasise about the false binary the Government appear to be creating in Clause 4, for example.

As someone who has worked with the refugee convention for about 30 years, I feel that something is missing—well, there are many things missing, but there is something particularly dangerous about tying the hands of decision-makers in the way proposed, be they the Secretary of State, Border Force, or judicial decision-makers in particular. There is a false binary, which the noble Lord, Lord Carlile, began to outline. At one end of the spectrum, the country is particularly dangerous for Josef K, not other people in Josef K’s family or political party, or in another social group. The language of the Bill uses the following adjectives:

“compelling evidence relating specifically to the person’s particular individual circumstances”,

At the other end of the spectrum—the false binary the Bill proposes—is the general safety of Rwanda, the Bill’s definition of which includes safety from refoulement in particular. Of course, any refugee lawyer or anyone with experience of dealing with asylum anywhere in the world will tell you that, for a great many refugees, the crucial issue—forget the false binary—is membership of a persecuted social group. Those are the social groups highlighted by these amendments, but they could be other political or ethnic social groups, and so on.

On an ordinary reading of this extraordinary draft statute, I have no doubt that even this odd formulation of the specificity of the person’s “particular individual circumstances” would be construed by a court as including membership of a social group. That would be a normal reading of even this draft provision. However, because of all of that odd stuff in Clause 1 about the purposive construction the Government propose—disapplying the common law, disapplying the Human Rights Act and so on—there is now a real question mark about whether social groups are included for the purposes of Clause 4, for example.

To be fair to the Minister, in his letter, which I read, the clear indication is that social groups would be covered, because HJ (Iran) and gay people who are persecuted are alluded to. But, with respect, if that is the case, in the light of the very odd formulation of this draft statute, the noble and learned Lord, Lord Etherton, and others have done the Government an enormous favour. At the very least, they ought to agree to the amendments proposed by the noble and learned Lord. Otherwise, I fear that, because of all these straitjackets in the Bill upon decision-makers, including the Secretary of State, let alone the judiciary—we will come to it later—the Government may find that they are sending people to Rwanda in circumstances where they do not want to, and contrary to the Minister’s letter. For those reasons, I support the amendments in this group.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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My Lords, I strongly support the amendment of the noble and learned Lord, Lord Etherton, which he moved almost unanswerably. I agree with the support given to it by my noble friend Lord Cashman, and I support his proposal of the amendment of my noble friend Lord Dubs.

The specific point my noble friend Lady Chakrabarti made is key. I can understand the idea that Rwanda is not a safe country in general because it has no adequate system of addressing asylum seekers and is willing to refoul people irrespective of the merits. I strongly agree with my noble friend when she says that, if a person—for example, a member of the LGBTI+ community—says, “I would not be safe if I were sent back to Rwanda”, that relates specifically to their “particular individual circumstances”, which is the language of the Bill.

The purpose of the noble and learned Lord’s amendment, and of that of my noble friend Lord Dubs, as proposed by my noble friend Lord Cashman, is not to determine in this House whether Rwanda is safe for LGBTI+ people; it is to ensure that, if there is a question mark over that issue—if somebody asserts that, because they are a member of the LGBTI+ community, the Minister is not tied by determining that Rwanda is a safe country—the courts would then consider the question.

Key to the House’s determination of these amendments is the Government’s view of what the Bill, particularly Clause 4(1), means. In responding to the noble and learned Lord’s amendment, can the noble Lord, Lord Sharpe of Epsom, tell us whether, if a member of the LGBTI+ community asserts that Rwanda is not safe for gay people, a Minister can take that into account under Clause 4 in relation to that person? Can he indicate whether, if that applicant disagreed with a Minister’s conclusion, they could go to the courts? We need to know that to determine whether we need to put the noble and learned Lord’s amendment on the statute book.

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Moved by
39: Clause 4, page 4, line 12, leave out from “question” to end of line 14
Member’s explanatory statement
This amendment, and other amendments to Clause 4 in the name of Baroness Chakrabarti, restore the jurisdiction of domestic courts by rendering the future safety of Rwanda (evidenced by UNHCR advice) a rebuttable presumption and restoring the ability for UK courts and tribunals to grant interim relief.
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, this group goes to the heart of domestic, constitutional, rule-of-law concerns about the Bill. I share Amendments 39, 44, 49, 50, 52 and 53—the bulk of the group—with the noble and learned Baroness, Lady Hale of Richmond, and the most reverend Primate the Archbishop of Canterbury. The noble Viscount, Lord Hailsham, is also a supporter of this group but gallantly withdrew his name because he is prevented from being here today. These amendments will restore the proper jurisdiction of our courts. In a moment, the noble and learned Baroness, Lady Hale, will explain them, but for now I beg to move.

Baroness Hale of Richmond Portrait Baroness Hale of Richmond (CB)
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My Lords, I shall explain why I am proud to support this vital group of amendments to Clause 4 proposed by the noble Baroness, Lady Chakrabarti. They restore to the courts of this country the role which is properly theirs under our centuries-old constitutional arrangements, which respect the separation of powers between Parliament, the Executive and the judiciary.

I must apologise to the Committee that prior commitments prevented me speaking at Second Reading—although I was there for the all-important closing speeches—and attending the first two days of the Committee’s considerations. I have, however, followed the proceedings closely and have been hugely impressed by the quality of the debate.

I agree with so many noble Lords that reversing the very recent findings of fact in our Supreme Court with absolute and for ever conclusions as to the safety of Rwanda, ignoring international law, and disapplying the Human Rights Act are of the gravest concern. However, it is also of the gravest concern that the Bill ousts the jurisdiction of His Majesty’s courts and tribunals to consider matters which are properly theirs to consider, in a constitution which respects the rule of law. It is for the courts to decide whether the Executive have violated, or propose to violate, the rights of individuals—rights they are given, as the Supreme Court made clear, not only by international law and the Human Rights Act but by other UK statutes and by the common law of the land, of which we are so rightly proud.

Amendment 39 restores to the Executive the ability to consider the general safety of the Republic of Rwanda, not just the particular circumstances of a particular individual. This reflects the concerns already expressed in Committee, not only that the situation in any country may change very quickly but that it makes no sense to be able to examine the circumstances of a particular individual but not the evidence that hundreds or even thousands of people may be imprisoned or tortured there. This amendment would also cater for the concerns raised by the previous group of amendments about members of a particular social group.

Amendment 44 restores the same ability to evaluate such vital country information to courts and tribunals considering decisions to remove individuals to Rwanda.

Amendment 49 restores the ability of decision-makers, whether in government or in our courts and tribunals, to look at evidence that the Republic of Rwanda will or may refoule people. Refoulement, as the Committee well knows, means sending people to places where they are at risk of persecution.

Amendments 50, 52 and 53 also restore to our domestic courts and tribunals the jurisdiction to grant interim relief to claimants, preventing their removal to Rwanda until their cases have been properly considered. Amendment 48 in the name of the noble Lord, Lord Coaker, also restores the jurisdiction of courts and tribunals over possible refoulement but not the possibility of granting interim relief, so, with respect, though commendable in itself, it does not go quite far enough.

I remind the Committee that Clause 5 of the Bill allows for the possibility that a Minister of the Crown may comply with interim measures of the European Court of Human Rights. As a matter of sovereignty, it would be odd indeed if an international court could grant relief to people within the United Kingdom when our own courts and tribunals have been deprived by statute of any say at all. In my experience as a judge at the highest level in this country, there is a great deal of respect between our own courts and the European Court of Human Rights in Strasbourg. If and when Rwanda were to become a safe country, our courts would find it so and the Strasbourg court would almost certainly agree. On the other hand, if our own courts are unable to consider the matter, the international court would have to scrutinise the decisions of the UK Government with great care—an outcome which many noble Lords may think regrettable.

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

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

Lord Coaker Portrait Lord Coaker (Lab)
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In due course.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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Yes, in due course.

I say to the Minister that I am sure the Committee is very grateful for his patience and courtesy, as always, but this was a very difficult couple of hours. I do not know whether the word “decree” was a Freudian slip or just some straightforward, slightly shameless honesty. We now live in a country in which we are going to determine something as important as whether another country is safe for asylum seekers, not by fact finding or seeking after truth, as the noble Lord, Lord Deben, would like, but by decree. I cannot believe that I am now living in a country where facts of such importance are determined, in effect, by Executive decree.

It is not even by parliamentary decree because Parliament will not have the opportunity to examine all these shadowy mechanisms under the treaty. My noble and learned friend Lord Falconer, with the able assistance of the noble Lord, Lord Purvis of Tweed, attempted again and again to get answers about these but answers came there none. When will this legislation be brought into Rwanda? Who has seen the draft legislation? Who are the experts? All these are things that the Supreme Court was concerned about.

I remind the Committee that the Supreme Court never doubted the good faith of the Rwandan Government. It just felt that, on the evidence, the mechanisms and cultures were not yet there on the ground. The Minister, courteously and kindly, could not answer any of those questions. Therefore, in addition to stripping our domestic courts of their jurisdiction over such important matters, the Government have singularly failed to assure this Committee that Rwanda is safe and that we should “decree” it so.

I will end unconventionally with a comment made by one of your Lordships’ security staff to me earlier in the day. For obvious reasons, he shall remain nameless.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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He or she or they—I have sort of admitted that it was a gentleman. He said to me that he had heard various comments I have been making. I said, “I am sorry for that; it is all rather depressing, isn’t it?” He said, “My Lady, I think there are all sorts of people that we would like to kick out of our country, but we don’t want to kick out our values”. I think that was a pretty good summation, worthy of any Member of the Committee.

Finally, I say to the Minister: if Rwanda is so safe, or if it will become safe and be safe for a long time, there is nothing to be afraid of in this group of amendments. The Government should not be afraid of His Majesty’s judges or the courts that have been the pride of this country and admired all over the world for so long. For the moment only, however, I beg leave to withdraw my amendment.

Amendment 39 withdrawn.

Safety of Rwanda (Asylum and Immigration) Bill Debate

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Safety of Rwanda (Asylum and Immigration) Bill

Baroness Chakrabarti Excerpts
This clause demonstrates a cavalier attitude to international law which is reckless and dangerous. This is not about a foreign court, as the Prime Minister suggests, interfering in UK law; it ensures that states respect the rights and guarantees set out in the convention, which the UK played an instrumental role in drafting and freely entered into. If we continue with what is in Clause 5, I believe that the UK will undermine its ability to champion the rule of law and human rights abroad. I beg to move.
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I have Amendments 58, 60 and 61 in this group, and I share them with the noble and learned Baroness, Lady Hale of Richmond, and the most reverend Primate the Archbishop of Canterbury. I shall also say a few words about Amendment 63, which I have not signed but which is proposed by the noble Viscount, Lord Hailsham, who is sadly unable to be here today, and I said I would say something about his amendment, because I think it is very valuable to the Committee’s consideration.

Amendments 58, 60 and 61 would require the Government to comply with international law in responding to an interim measure of the Court of Human Rights. They would require domestic courts to take such interim measures into account and would disapply offending provisions in Section 55 of the Illegal Migration Act for those specific purposes.

It is difficult to contemplate why the Government want to take specific powers to disapply Rule 39 measures, given, as we have heard from the noble Lord, Lord Scriven, and others on different days, how few interim measures have been made in the history of the convention against the United Kingdom—something to be proud of—how we have pretty much always complied with them, and how we try to take a position on the world stage to encourage others in the Council of Europe, and powers outside the Council of Europe, to comply with other international courts. I need not develop that too much further; I am sure everyone knows what I am alluding to. I find it difficult to understand.

If certain noble Lords opposite are going to pop up and say there is nothing in international law that says that you have to comply with Rule 39, one answer came from the noble Lord, Lord Scriven: it is ultimately for the court to decide whether Rule 39 is binding in international law or not. When you sign up to the club that is the Council of Europe, do you sign up to the referees of that club, yes or no?

The other thing is this. If it is not a matter of international law that we comply with Rule 39 and we just do it because we are gentlemen—and ladies and noble Lords—then why would we take specific domestic statutory powers to say we can ignore it? It seems very odd and troubling to me—but I would say that, would I not?

Even though I did not sign it, because I take a rather trenchant position on the importance of complying with Rule 39, I think it is important to expose Amendment 63 from the noble Viscount, Lord Hailsham. He was prepared to go a little towards the government position and to say that there might be certain circumstances where a Minister of the Crown may ignore an interim ruling of the court. Remember, the court in Strasbourg makes these only rarely, and only where it thinks there is a real danger that something so bad will happen to the person between the case being brought and a final outcome that the case will be virtually academic, to use a phrase coined earlier by the noble and learned Lord. Here, “academic” means that you will be dead before the final outcome of the case, or you will be sent for torture. That is the territory we are talking about when we talk about interim measures.

The noble Viscount, Lord Hailsham, is prepared to go further towards his noble friends’ position than I am. In honouring comments from the Government on previous occasions, he tabled Amendment 63, which says that Ministers may sometimes ignore interim measures but only when the Government were not allowed a proper opportunity to argue against the making of the interim measure.

This goes back to a debate that arose during the passage of what is now the Illegal Migration Act, and that now rages on in certain parts of the media and on Twitter: that the wicked old Strasbourg court is constantly granting these interim measures to frustrate our immigration controls and is doing so behind our backs—so-called pyjama injunctions. I have heard all sorts of people who do not often talk about legal process pick up this soundbite of “pyjama injunctions”. The Strasbourg court is granting these ex parte injunctions to applicants without due process—that is the argument that is being made.

The noble Viscount says, “Of course we must have due process, and therefore the Minister can ignore these measures if he thinks we’ve not been allowed due process”. Since the passing of the Illegal Migration Act, which is when this argument was first ventilated, there have been productive discussions between the Government—they are indivisible, but I am talking about that nice bit we call the Foreign Office—and the Strasbourg court, because I believe everybody agrees that there should be due process. Sometimes, you need to make an urgent interim measure to stop someone being put on a plane potentially to ill treatment or death. But, even in that emergency situation, any state or Government should have the opportunity to say, “Actually, you got that wrong, so can we return to that?”

Lord Faulks Portrait Lord Faulks (Non-Afl)
- Hansard - - - Excerpts

The noble Baroness said that the Strasbourg court would make such an order only in dire straits, when there was a matter of real emergency and death was the almost inevitable result. Can she help the Committee with the reasons the Strasbourg court gave last year, when it issued the rule 39 order?

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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No, I will not set that out, given the hour. I am talking about the general principle here, and I will not rehearse the specific details of that interim measure. I want to focus on the fact that everybody agrees that due process requires that any state, including the UK, ought to be able to put its case, and, if it cannot do so in an emergency, it should be able to thereafter. My understanding of the Government’s position during the passage of the Illegal Migration Act was that the UK Government were in negotiations with the Strasbourg system to make sure that due process was restored. Even if an emergency interim measure needs to be made, there will be the opportunity to put the other case thereafter—that is the position we are used to in the domestic courts. That seems sensible to me.

I had an amendment to the Illegal Migration Bill, akin to the amendments I have today, and I withdrew it and did not press it at subsequent opportunities because I thought that the UK Government were entitled to have those negotiations with the Strasbourg court. Everything I read suggests to me that these negotiations have been fruitful, presumably because of the endeavours of people like the noble Lord, Lord Ahmad of Wimbledon, who spoke so powerfully about rights, freedoms and the rule of law a few moments ago.

In his reply, can the Minister tell us where we are with those discussions with the Strasbourg court? It seems to me that it would be common sense and better for everybody—not just the UK Government but other states, as well as the Strasbourg system itself, which is so important in the current dangerous times—if that mechanism worked well, so that, even if there occasionally need to be emergency interim measures, it would be clearly open to any state that felt that it had not had the opportunity to put its case to do so subsequently. An interim measure, if not needed, could be set aside. That is my first question to the Minister.

My second question is this: how can we pursue measures of this kind, taking a specific express power for Ministers of State to ignore interim measures of the Strasbourg court, when there are currently interim measures against, for example, the Russian Federation to prevent the execution of prisoners of war in the Ukraine conflict? I am becoming a little tired of hearing the Government speak with two voices: the Foreign Office voice and the Home Office voice. The poor Minister is of course a law officer and has to sit across all of this, but it is not consistent to talk about international law and how everyone must obey it, including the Russian Federation, which, while it is expelled from the Council of Europe, we say is still bound by interim measures of the Strasbourg court.

That is important because, one day, there will be a reckoning for Mr Putin and his cronies, and it may be in the ICC. It will then be relevant that there were interim measures of the Strasbourg court, and particularly relevant if they ignored them. How does that stand with what the Government propose in this Bill?

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Lord Jackson of Peterborough Portrait Lord Jackson of Peterborough (Con)
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I think that is a moot point, in so far as—

Lord Jackson of Peterborough Portrait Lord Jackson of Peterborough (Con)
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I am always delighted to amuse the noble Baroness, Lady Chakrabarti.

Articles 26 and 27 of the ECHR expressly limit the competence of a single judge vis-à-vis the Chamber of the Court or the Grand Chamber. I agree that in a case such as Hirst v UK (No. 2) [2005] on prisoner votes, we—as a Government, Ministers and the Executive—specifically set our face against a decision of the Grand Chamber. That was liable for criticism.

But the fundamental question here is: is the use of Rule 39 interim measures at the heart of what you would call international law? As I will set out very briefly, that is not necessarily the case, because the ECHR makes express provision for the constitution of the court and its jurisdiction. A single anonymous judge at the court breaches the limit of what the ECHR establishes as the competence of that single judge as the legal authority. Indeed, interim measures are not, in effect, de facto rulings of the Strasbourg court at all, and the Minister is therefore not in breach of “international law”. I make reference again to Articles 26 and 27 of the convention.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I am grateful to the noble Lord for giving way. I am very interested in his points about international law and so on. As a matter of basic common sense and logic, does he understand why there is value in the interim measures of any court, domestic or international? Does he understand why it is sometimes necessary to have some kind of mechanism for preventing a case becoming totally academic and preventing the outcome being decided before the case has been properly and finally heard, whether in a domestic or an international court? If he agrees that there is sometimes value in that, and if he has concerns about the way the Strasbourg procedures work, does he not think that the first thing to do would be to try to negotiate reforms to those procedures, rather than just taking domestic powers to ignore them?

Lord Jackson of Peterborough Portrait Lord Jackson of Peterborough (Con)
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I say, gently, to the noble Baroness that this issue with unrestricted, unprecedented levels of geopolitical change and immigration is sui generis. Therefore, one has to see it through that prism. Yes, broadly and in principle, it is better to negotiate than to withdraw from a convention or another legal regime. But you cannot always use the case that, because Putin has been beastly, we self-evidently and axiomatically have to deal with his breach of international law. After all, invading a sovereign country such as Ukraine is a bit different from some of the other cases the noble Baroness used. It does not mean that you cannot be critical of the overall application of the legal regime we are discussing.

In fairness, my noble friend Lord Hailsham’s amendment is very fair-minded, enabling the Government potentially to present the evidence that, hitherto, they were not able to do in the 2022 case. Indeed, the amendment in the name of the noble Lord, Lord Coker, is eminently sensible—actually, it is rather otiose, because one would always assume that the Home Secretary would seek the advice of the Attorney-General in proceeding in these small number of cases.

Two of the amendments the noble Baroness put forward are clearly wrecking amendments. The amendment that would disapply Section 55 of the Illegal Migration Act would specifically remove the express parliamentary sanction and authorisation of non-compliance with the interim measure, which, in itself, is a draconian move. Amendments 58 and 60 go to the heart of what we assume to be international law, in terms of what is justiciable in domestic law.

Let us be honest and put our cards on the table. This is about tying up the Bill in endless judicial reviews to stop any people being removed and to stop us tackling one of the biggest, endemic, troubling issues in politics. It is about bringing this back under the purview of domestic legislation in order to establish a roadblock via judicial review.

My final point is about the Human Rights Act 1998. It does not give legal effect in domestic legislation to the Strasbourg court’s Rule 39 practice, which is grounded in Article 34 of the European Convention on Human Rights and is not one of the Commission rights set out in Schedule 1 to the 1998 Act. For those reasons, therefore, there is a very big question mark over the use of Rule 39 interim measures. Are they really international law as we would define it? Noble Lords would be wise to consider that when they come to vote for these amendments.

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Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, these amendments all concern the response to interim orders of the European Court of Human Rights—not a foreign court, I entirely accept, but a court of which we are a member. At Second Reading, I absolutely accepted that courts, particularly domestic courts, will need to have powers to make interim orders—to stop a child being taken from the jurisdiction, or to stop someone disposing of assets, knocking down a building or any number of different matters that ought to be ruled on immediately, rather than waiting for the worst to happen.

However, the granting of such orders, particularly if they are obtained ex parte—that is, in the absence of the other side—is always subject to stringent safeguards, and none seemed to be honoured when the court in Strasbourg determined that the Government could not remove an asylum seeker to Rwanda. We still do not know who the judge was; there is no record of his or her reasons. That is why I asked the noble Baroness, Lady Chakrabarti, whether she could enlighten us as to the reasons why the order was made. She told us that they would be made only in extremis, when an individual was likely to suffer death or something similar, but there is no explanation of the reasons or any basis on which they came to that conclusion. We do not know what the reasons were.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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Hence, as I think I said, many of us across the Committee agreed with what some Ministers opposite proposed last year: that the Strasbourg process for interim measures should be reformed to encourage greater transparency and the possibility of rectification, and to give states that felt they would like to correct an erroneous interim measure the ability to do so.

Lord Faulks Portrait Lord Faulks (Non-Afl)
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Indeed, but not only were reasons not given; the Government were not given an opportunity to come back on a return date, which is the norm on interim applications. All this amounts, effectively, to a breach of natural justice on any basis.

Nor is the comparison with the availability of domestic interim remedies wholly analogous, as the noble and learned Lord, Lord Hoffmann, said. The Government are, of course, a valued member of the court in Strasbourg. If, at a full hearing, the court determined that there had been a wrongful removal then the Government would be expected to comply, as they have always done in the past. But, as the noble Lord, Lord Wolfson, made clear in his address to the House at Second Reading, and as we have already heard this evening, there is very considerable doubt, to put it neutrally, as to whether the court has any power to make such an order. Other countries are extremely doubtful about the legality of the rule. Of course there is talk of improving the procedure, as the noble Baroness said. That may or may not transpire.

But I understand—although it is a slightly peculiar provision—why the Government have decided to give the Minister the powers that he has under Clause 5. Otherwise, the whole policy could potentially be undermined by an unnamed judge’s decision, given without reasons. Even the most fervent supporter of the Strasbourg court must be a little uneasy at that state of affairs.

I do, however, echo the question asked by the noble and learned Lord, Lord Falconer: do the Government consider that the exercise of this power under Clause 5 would be amenable to judicial review and, if so, on what grounds? The Government must have taken a view about that. The answer to the question would, I suspect, be relevant to whatever side of the argument you favour.

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There is nothing in Clause 5 to prevent Ministers consulting Cabinet colleagues or seeking advice when appropriate so to do. It would be expected for a Minister so to do. However, this is a decision for Ministers, so I do not believe that Amendment 62, tabled by the noble Lord, Lord Coaker, which seeks to introduce a requirement to consult the Attorney-General, is necessary. Furthermore, specifying in the Bill that the Attorney-General must be consulted before a decision is made would undermine the law officers’ convention, to which reference was made earlier in Committee. 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 or not the opinion of the law officers has been sought.
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.

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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.

Safety of Rwanda (Asylum and Immigration) Bill Debate

Full Debate: Read Full Debate
Department: Home Office

Safety of Rwanda (Asylum and Immigration) Bill

Baroness Chakrabarti Excerpts
Moved by
1: Clause 1, page 1, line 2, after “The” insert “first”
Member’s explanatory statement
This amendment is consequential to the amendment at Clause 1, page 1, line 5, in the name of Baroness Chakrabarti, to add the purpose of compliance with the rule of law to that of deterrence.
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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.

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Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I did not succeed in my urging of brevity, but never mind. I am grateful to all noble Lords none the less, particularly for the very worthy tributes to the noble Lord, Lord Cormack, and my noble friend Lady Henig. They were liberal patriots indeed.

I remind your Lordships’ House that the Prime Minister invoked the rule of law in his Downing Street address on Friday, but I am grateful to the most reverend Primate for reminding us that, in the post-war age, the international rule of law is part of that.

I will not be tempted down the rabbit hole of the slightly unorthodox and creative version of the rule of law presented by the noble Lord, Lord Howard, save to say that he and his noble and learned friend the Minister effectively gaslit the Supreme Court. But they should have compared notes first, because one accused the Supreme Court of trespassing on the province of the Executive, while the other, in his usual soft and seductive tones, said how much he respected our highest court. I guess one of them must be telling us the truth, but I think it was the noble Lord, Lord Tugendhat, who gave the best response to both of them: this is post-truth legislation indeed.

I am shocked if not surprised by the response of the Government and, for fear of some of the specious and nitpicking excuses around my slightly longer amendment, I urge my noble friend Lord Coaker to press his very short, very simple, and incontrovertible amendment requiring compliance with the rule of law. I beg leave to withdraw my amendment.

Amendment 1 withdrawn.
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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.

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Baroness Hoey Portrait Baroness Hoey (Non-Afl)
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My Lords, I will briefly support Amendment 17 in the name of the noble Baroness, Lady Lawlor. I will say a few words about the Northern Ireland perspective on this, because whether this will really apply to Northern Ireland has been discussed at various stages, as have the effects if it does not.

A number of things in the Safeguarding the Union Command Paper have already been exposed as not correct. I would have liked more specific language in proposed new subsection (5)(c) in the amendment and more specific mention of Section 7A of the European Union (Withdrawal) Act when we talk about international law. The noble Lord, Lord Frost, is absolutely right: this will not go away and, sooner or later, we will have a legal challenge, probably first in Northern Ireland, on Section 7A and whether this applies.

Last week, we saw that the effect of the protocol framework is to give EU law supremacy in Northern Ireland, even to the point whereby the legacy Act that was passed—whether you agreed with it or not—could be struck down due to inconsistency with EU law applying because of the protocol. The Government and the Minister need to clarify because there is a lot of confusion and—I will put this gently—misleading information about how Article 2 works.

In a Written Answer to me on the Rwanda Bill, the noble Lord, Lord Caine, claimed that the EU Charter of Fundamental Rights did not apply to Northern Ireland via Article 2 of the protocol framework, and this is directly at variance with the High Court judgment in Angesom and the High Court in Northern Ireland disapplying 10 provisions of the legacy Act last week. The Government cannot keep making claims that are so obviously not true and then get almost angry when we point out things about how it is working legally.

This is another example of the degree to which control over part of the United Kingdom has been genuinely surrendered by this Government while they pretend that it is not happening. Let us not forget that the Windsor Framework is very specific: paragraph 46 of Safeguarding the Union says that

“the Windsor Framework applies only in respect of … trade”

and that Article 2 does not apply to immigration issues. I think we will find that this is not correct.

On the Rwanda Bill and the effect of Article 2 of the protocol framework, the proponents of the deal need to be clear. The Bill does not apply in the same way in Northern Ireland because Article 2 prevents it from doing so. The EU Charter of Fundamental Rights continues in Northern Ireland, and we should be honest about that. The protocol framework provision trumps domestic law and the wishes of our sovereign Parliament. Noble Lords should be aware that, whatever your views on this Rwanda Bill, we will find that this will ultimately end in another legal challenge. Whether the Bill has gone through or not, this will delay its implementation. I support the amendment, even if it does not specifically mention the Windsor Framework.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I will speak to Amendments 18, and Amendment 20 which I share 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. I support the starred Amendment 21 in the name of the noble Lord, Lord German.

Amendments 20 and 21 both restore Human Rights Act protection in full for those subject to the Bill pending removal to Rwanda. The amendment of the noble Lord, Lord German, does this in even clearer language by not referring internally to last year’s immigration Bill but clearly stating for the lay reader that Human Rights Act protection is restored.

However, Amendment 18 is a revision of the amendment tabled in Committee by the noble Lord, Lord Kirkhope. It is a modest revision to address the concerns of some of his noble friends. He is not able to be here this evening. I begin with that one because it is so mild and in keeping with the thrust of the Bill, and it cannot be described as wrecking or disturbing the framework—even of a Bill I object to—in any way.

Noble Lords will know that, in Clause 3, most Human Rights Act protection is removed for these vulnerable people. The one thing that is left is the possibility of a declaration of incompatibility. Contrary, I fear, to some of the comments made by the noble Lord, Lord Clarke of Nottingham, and others, there is no possibility in our arrangements for the Supreme Court to strike down the Bill, were it to become an Act, because that is not the arrangement that we have in the elegant British constitutional compromise of the Human Rights Act and the balance it strikes between the rule of law, which is the bedrock of any democracy, and parliamentary sovereignty.

If an Act is declared incompatible, that declaration has merely moral and persuasive effect, and the Act continues in operation. That is why, with the greatest of respect to him, the noble Lord, Lord Clarke, was optimistic to the point of being wrong about that. What the noble Lord, Lord Kirkhope, came up with last time was just the suggestion that, if there were to be a declaration of incompatibility made by a higher court in relation to this legislation, there should be accelerated consideration in Parliament. That is it. I am flabbergasted by the Government’s response, that they would not even have a look at that most modest amendment from their noble friend—a former Immigration Minister, the noble Lord, Lord Kirkhope of Harrogate.

In the noble Lord’s absence, I have retabled the amendment, and it has been tweaked slightly to address some of the points made by his noble friends last time—and I really look forward to hearing what the objection is to that modest suggestion that he made, that, if is there is a declaration, Parliament should have an accelerated timetable, and Ministers should put their arguments to Parliament, not to a court, and Parliament should be given the opportunity to consider what to do next.

As for our amendments to restore Human Rights Act protection, that is another way of trying to restore the protection of the domestic courts. I say to the Government—and here the noble Lord, Lord Frost, has a point—that where they have left us with this Bill, if it passes unamended, is in a situation whereby the only court that will really be seized of these matters and have full jurisdiction over the safety of Rwanda and individual removals, from this country to that country, will be the European Court of Human Rights. Of course, interim measures will be ignorable by a Minister of State, but final orders of the European court will still be an international legal obligation, which is not removed by the Bill.

The noble Lord, Lord Frost, is the one who is telling the truth about the logic of where this Government are heading—really, for walking out of the European Court of Human Rights and walking out of the Council of Europe. We can follow Russia and be the next one out. At least the noble Lord is honest about that position, whereas the Government are trying to have it both ways. They have defenestrated domestic courts and gaslit the Supreme Court, but the only court that will be left for redress in any real terms will be the Strasbourg court. Then the Prime Minister can say, “I told you what I said about foreign courts”, because foreign courts will be all that is left, if that is what we now say about international courts. Goodness me, what terrible politics.

The noble Lord, Lord Frost, has had enough of international law, really—that is where he is coming from—but how on earth are we going to address in a unilateral way the pressing challenges of the 21st century, facing not just the United Kingdom but the world today, whether it is climate change, war and peace or the challenge of the ungoverned continent that is the internet, AI or robotics? It is just nonsense.

The noble Baroness, Lady Lawlor, does not seem to like law, whether it is domestic or international, I hope that she never has need of it and that she is never subject to the kind of abuse of power that sometimes people are subject to, and they need the protection of the courts.

Baroness Lawlor Portrait Baroness Lawlor (Con)
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I ask the noble Baroness to be clear about what I proposed and to what I was referring. I was referring to the laws of this country, made by the people of this country, with the support of the people of this country—good laws. Yes, they support international treaty law, when that is in the interests of this country, and other wider interests that arise, whether they are trade treaties or international agreements over other matters. It is wrong to suggest that I am not in favour of law; I am in favour of good law, but not politicised law, as it very often is, by the interpretations of the Strasbourg court of the convention.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I am very grateful to the noble Baroness for her clarification. As I pointed out, and I think the noble Lord, Lord Frost, was nodding, the Strasbourg court is unaffected in its final jurisdiction by the Bill—it is our domestic courts that are defenestrated by this government policy.

I look to the noble Baroness’s amendment, which abrogates domestic laws. It refers to

“any provision made by … the Immigration Acts … the Human Rights Act”

and other domestic statute, as well as

“any other provision or rule of domestic law (including any common law)”—

in case Magna Carta still got a shout-out there—and, of course, international law. The noble Baroness has been pretty comprehensive in her approach to law in the amendment, whether domestic or international.

Of course, the noble Baroness says that it is only bad law that she does not like—but of course we all have our own views about good and bad law. Some of us believe that there should be referees in a democracy that is built on the rule of law, and the rule of law was invoked by the Prime Minister, even in his slightly odd Downing Street declaration on Friday.

Baroness Lawlor Portrait Baroness Lawlor (Con)
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May I clarify that my amendment is designed to promote the aims of the Bill to remove people who come to this country illegally to Rwanda and stop obstructions on that matter?

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I turn to Amendment 47, tabled by the noble Baroness, Lady D’Souza, and Amendment 18, tabled by the noble Baroness, Lady Chakrabarti. These amendments are designed to expand the current process under Section 4 of the Human Rights Act, and to place pressure on the Government to present legislative proposals to Parliament. In doing so, they seek to oblige the Government to respond to declarations of incompatibility in a certain way. That is expressly—
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I think a closer reading of Amendment 18 will demonstrate that it is not ensuring that the Government respond in a certain way. They can respond favourably or negatively to the declaration; they just need to come to Parliament and have the debate.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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In her address today and I think at an earlier stage, the noble Baroness described the functioning of declarations of incompatibility in Section 4 of the Human Rights Act 1998 as an elegant compromise. I freely agree that it is an elegant constitutional compromise, which ultimately reflects parliamentary sovereignty, which lies at the very heart of our processes and constitution.

As detailed in Committee, Section 4 of the Human Rights Act in relation to the system of declarations of incompatibility is designed to strike an appropriate compromise between scrutiny of human rights and parliamentary sovereignty. Section 4 does not oblige the Government to take any specific action as a result of a declaration of incompatibility, and Section 4(6) expressly does not allow a judicial ruling to prevent the operation and enforcement of legislation passed by Parliament.

The operation of the section is to afford the Government the opportunity to reflect on matters, to listen to concerns brought by the courts and to act upon them as they see fit. I do not consider it necessary to adopt the amendment which the noble Baroness has tabled and argued for. I do so purely on the basis that the history of the application of this section, in my view, respectfully, shows it to be working.

The noble Baroness, Lady D’Souza, tabled Amendment 47, seeking to undermine Section 4(6) of the Act by providing that a declaration of incompatibility results automatically in the legislation ceasing to have effect. It seeks to give such declarations a binding character, and, as I said a moment ago in relation to the noble Baroness’s point, that is contrary to what those provisions were designed to be and removes discretion or oversight as is currently afforded to the Government and Parliament as to what action would be most appropriate to take in the circumstances.

It has been the accepted practice since the introduction of the Human Rights Act for the Government to address such declarations either through primary legislation or by way of a remedial order. Again, given how well the declaration of incompatibility procedure is working and has worked in the past, I respectfully submit that there is no reason for us to innovate on that basis. These amendments are therefore not only unnecessary but inappropriate in their attempt to legislate for parliamentary procedure in this manner. The declaration of incompatibility procedure works well to strike the right balance, and there is no reason to upset it.

I was addressed on the subject of the remarks made by the Lord Chancellor to the Joint Committee on Human Rights. As your Lordships have said—it was predicted that I would refer to this again, and I will—the Lord Chancellor recently set out in his letter to the Joint Committee that while

“it is a fundamental tenet of modern human rights that they are universal and indivisible … it is legitimate to treat people differently in different circumstances”.

For example,

“a citizen may legitimately be treated differently, and have different legal rights from, a non-national”,

recognising that there is a difference between a citizen and a non-national. The convention,

“as interpreted by the case law of the ECtHR … recognises this principle”

in full.

“There is nothing in the … 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”.

Safety of Rwanda (Asylum and Immigration) Bill Debate

Full Debate: Read Full Debate
Department: Scotland Office

Safety of Rwanda (Asylum and Immigration) Bill

Baroness Chakrabarti Excerpts
Moved by
33: Leave out Clause 4 and insert the following new Clause—
“Decisions in individual claims(1) Section 2 does not prevent—(a) the Secretary of State or an immigration officer from deciding (under any applicable provision of, or made under, the Immigration Acts) whether the Republic of Rwanda is a safe country for the person in question or for a group of persons to which that person belongs; or(b) a court or tribunal considering a review of, or an appeal against, a relevant decision to the extent that the review or appeal is brought on the grounds that the Republic of Rwanda is not a safe country for the person in question or for a group of persons to which that person belongs; or(c) a decision-maker considering whether there is a real risk that the Republic of Rwanda will remove or send the person in question to another State in contravention of any of its international obligations.(2) The court or tribunal may grant an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of the person to the Republic of Rwanda. (3) Section 54 of the Illegal Migration Act 2023 is disapplied for the purposes of this Act.(4) In this section—“interim remedy” means any interim remedy or relief however described (including, in particular, an interim injunction or interdict);“relevant decision” means a decision taken by the Secretary of State or an immigration officer (under any applicable provision of, or made under, the Immigration Acts) that the Republic of Rwanda is a safe country for the person in question.”Member’s explanatory statement
This amendment restores the ability of the Secretary of State, immigration officers, courts, and tribunals, to consider whether the Republic of Rwanda is a safe country and jurisdiction of domestic courts and tribunals to grant interim relief.
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, on Monday overwhelming majorities of your Lordships voted to amend this Bill by adding compliance with the law to the purpose of deterrence in Clause 1, by requiring a statement from the treaty monitoring committee, before and for as long as Rwanda may be presumed safe, and by allowing such presumption to be displaced by credible evidence to the contrary. It is the last of these that provided the most legal, as opposed to political, protection. Yet even that would become illusory if the dangerous interference with His Majesty’s judges’ jurisdiction in the current Clause 4 passes unamended, so Amendment 33 would restore to decision-makers, and crucially our courts, the ability to consider the safety of Rwanda for people and groups to which they belong.

I draw your Lordships’ attention to today’s thunderer, expressing the personal reflections of the chair of the Joint Committee on Human Rights on her recent visit to Kigali. Decision-makers and courts would once more be able to consider any real risk of refoulement contrary to international law. Vitally, this amendment also restores our age-old common-law tradition of His Majesty’s courts having discretion to grant interim relief while a case is considered—to protect a claimant, in this case, from removal in the meantime. We have had rule-of-law appetisers; this is now the main course, but it must be fast food to prevent filibuster and to allow more votes. That was two minutes; I beg to move.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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My Lords, perhaps within two minutes I will complete my observations to support the amendment moved by the noble Baroness, Lady Chakrabarti. To anticipate what my noble friend the Minister is going to say, I acknowledge that there is force in his prospective argument, which I suspect will be that if we allow these amendments we facilitate a number of unmeritorious applications to the courts, and that will stand in the way of the Bill being effective. There is force in that argument, but I put before your Lordships three considerations that point the other way.

First, the judiciary can be more robust in the way it deals with unmeritorious applications. Furthermore, although I am not an expert in this field at all—I have not practised in immigration law for a long time—a more effective filter could be put in place to weed out the unmeritorious. That is the first point. The second is really the point of principle: I regard it as very dangerous indeed to exclude individuals who happen to be within the jurisdiction from having recourse to the courts for protection. I regard that as a very dangerous proposition, and we should accede to it with the greatest caution. That takes me to my last point, which is essentially a pragmatic one. Those of your Lordships who share my doubts, especially on the matter of principle, should ask themselves whether the Bill is likely to achieve its policy objective. If it is not, we will be doing things that are very bad in principle in support of a policy that will achieve nothing.

My own judgment—I concede that it is a matter of judgment—is that individuals will not be deterred from crossing the channel in small boats by the slight prospect of being relocated to Rwanda. If that is right, we will be doing something that is in principle profoundly wrong in support of a policy that is going nowhere. It is for that combination of reasons that I shall support the noble Baroness. I have spoken for three minutes.

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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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Our courts and tribunals should be able to exercise that role. There may be defects in the procedures adopted by the European Court of Human Rights; among other things, there is no right for the party against whom proceedings are brought to appear and express a view, whereas in our courts that certainly is a position, and our procedures are much more consistent with what we regard as in accordance with proper procedures. What my amendment seeks to do, very simply, is to enable our courts and tribunals to exercise that role in this important matter. I beg to move.
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I will speak very briefly in support of the noble and learned Lord, Lord Hope, and the amendments in this group. I do so for three reasons.

First, whatever one’s views about international law, parties to any dispute must have some access to interim relief—whether neighbourhood disputes or business disputes, and particularly in relation to human rights concerns. The Government are resisting interim relief in our domestic courts, but they really cannot do that in relation to the European Court of Human Rights as well, or there will be no interim relief for mistakes that can lead to very dire consequences—as has happened in the past, even in immigration cases in this country.

The second reason I support the amendments in the group is this. When the Government originally raised concerns about Rule 39 last year, it was because of natural justice concerns about the procedure of the courts not always allowing Governments to be heard, or not allowing them to be heard after interim relief had been granted. Those procedural concerns have now been addressed, not least thanks to the efforts of Foreign Office Ministers, including the noble Lord, Lord Ahmad of Wimbledon, for which he is to be commended.

Finally, I think back to yesterday’s debate, which did your Lordships’ House such credit. I remind noble Lords that there are currently Rule 39 interim measures in place to prevent the Russian Federation executing Ukrainian prisoners of war. It will do our arguments and moral authority no good at all if we start saying that we can pick and choose which Rule 39 measures we accept.

I say to the noble Lord, Lord Lilley—in relation to his question to the noble and learned Lord—that he might like to look at today’s Politico, where Dunja Mijatović, the Council of Europe Commissioner for Human Rights, has criticised not just the present Bill but the French state for the very case that he referred to. The French were wrong to do what they did and we must do better.

Lord Jackson of Peterborough Portrait Lord Jackson of Peterborough (Con)
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My Lords, I oppose Amendments 36, 37, and 38 in respect of Rule 39 interim measures. I am afraid that I will not observe or respect the admonition that we should brief necessarily. We are discussing the substantial and significant issue of parliamentary sovereignty, and the right of the British people to have their views respected and not blocked by an unelected House, especially when the elected House, the other place, has been able to make a decision in significant numbers.

In deference to the sensitivities of the noble Lord, Lord Hannay, I will, for the avoidance of doubt, be referring to “an international” rather than “a foreign” court. I am sure he will be pleased about that. These are fundamentally blocking or wrecking amendments, designed to make the Bill inoperable. They are designed to thwart the will of the people, expressed through an electoral mandate and the will of the other place, to reduce immigration and to fulfil the primary duty of government, which is to protect its borders and its people and, more importantly—I look to the Lords spiritual in this respect—the moral imperative to save lives in the channel and destroy the business model of evil people traffickers.

More specifically, these amendments subvert and traduce the long-held principle that our laws are made in Parliament and implemented by the courts—simply, the concept of parliamentary sovereignty—in favour of a nebulous, opaque concept of “the rule of law” and the ECHR as a living document. The former is essentially uncodified and lacks precise consensual meaning, but it is used to advance judicial activism by unelected, unaccountable jurists in an international court, undermining faith and trust in the court system, parliamentary democracy and government in this country and destroying the delicate equilibrium between the Executive, the legislature and the judiciary. There is but one rule of law, and that is made in Parliament by elected representatives. That confers legitimacy on our proceedings. These amendments will assist in furthering the trend towards the politicisation of the judiciary.

Even the concept of the separation of powers, much lauded in this House, is itself alien to the constitutional settlement of the UK, and is certainly an evolving issue. It is unclear and prey to subjective interpretation, as we established earlier this week on Report when we discussed the deeming presumption of a safe list for asylum seekers, including Greece, in the case of Nasseri v Secretary of State in 2009. This was ultimately found by the Appeal Court and the House of Lords, under Section III of the ECHR and the Human Rights Act in respect of inhuman treatment, not to have violated those pieces of legislation. That was the Blair Government, who created an unrebuttable presumption that a list of countries was safe, so there is a precedent already set many years ago.

I wish to ponder briefly the idea of the rule of law, Rule 39 interim measures and the implications for parliamentary sovereignty and the myth of the ECHR, which is eulogised with rapture by so many noble Lords in the context of our own Parliament and judicial system. Advancing the rule of law as superior to parliamentary sovereignty—“the rule of lawyers”, as my noble friend Lord Lilley said in his excellent opinion editorial in the Daily Telegraph two days ago—is what we are looking at. It is about the subjective fiat of another court, over which we have no control. It is a modern phenomenon, as opposed to parliamentary sovereignty, and an example of judicial mission creep. That said, even Lord Bingham stated, after the case of Jackson v Attorney-General on the Hunting Act 2004:

“The bedrock of the British constitution is … the supremacy of the Crown in Parliament”.


He echoed the thoughts of such eminent jurists as Lord Denning and AV Dicey, to whom I referred in Committee.

As we know, and as my noble friend Lord Lilley alluded to earlier, the French have taken an altogether more robust view of the authority and sanctity of their own domestic legislation vis-à-vis the perverse and sometimes dangerous and damaging rulings of the ECHR. In November 2023, Interior Minister Gérald Darmanin removed an Uzbek national, MA, who was allegedly a radicalised Islamist extremist, despite a Rule 39 interim measure against this being done, the first time that the French Government have openly defied such an interim measure. Indeed, they also defied the Conseil d’État, the equivalent of the Supreme Court.

The French elite is more likely to question and challenge the état de droit, the French equivalent of the rule of law. In an article in Le Figaro

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Moved by
45: Clause 9, page 6, line 38, leave out subsection (1) and insert—
“(1) This Act comes into force on such day as the Secretary of State may by regulations appoint.(1A) A statutory instrument containing regulations under this section may not be made unless— (a) the Secretary of State has laid a statement before each House of Parliament pursuant to section 1(1C), and(b) a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(1B) The Secretary of State may by regulations made in accordance with subsection (1A), provide for the Act to be in force for an initial period not exceeding 2 years (the initial implementation period).(1C) At the expiration of the initial implementation period, the Secretary of State may by regulations made in accordance with subsection (1A), provide for a further period during which the Act will be in force, provided that such an extension is for a period not exceeding 2 years.(1D) At the expiration of the first extension and in respect of any subsequent extension, the Secretary of State, may by regulation, made in accordance with subsection (1A) provide for the Act to be in force for a further period, any such extension must not be for a period exceeding two years.”Member’s explanatory statement
This amendment replaces commencement of the Bill, currently triggered by the entry into force of the Rwanda Treaty (an executive act), and the Act’s continuation for periods of no more than two years, with a parliamentary trigger requiring both a statement from the Secretary of State and resolution of each House of Parliament.
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, there is always an alpha and an omega, and here we are. Earlier, the Minister said that he does not apologise for insisting on accountability—parliamentary sovereignty and parliamentary accountability for the crucial decisions that are being discussed here. He said, “We will not ratify until we are satisfied that various provisions of the Rwanda treaty have been fully implemented”. Who is “I” and who is “we”? I think the Government’s argument throughout the Bill’s deliberations has been about parliamentary sovereignty, which is a fair point, but if it is parliamentary sovereignty and not executive domination, my Amendment 45, supported by 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, really challenges the Government to say whether they believe in parliamentary sovereignty, as opposed to executive domination. This amendment is about commencement. It would give Parliament, rather than just the Executive, a role. As I see the noble Viscount, Lord Hailsham, in his place, I ask him to explain.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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My Lords, I will make just a one-minute contribution to this debate on Amendment 45. This is the rolling sunset to which I have previously referred. It is a natural phenomenon not previously identified by meteorologists, but the purpose is, as the noble Baroness has said, to ensure that the Secretary of State is accountable. He or she has to come to Parliament to trigger the commencement, and the rolling sunset provides for assessment every two years, in effect. That seems to me highly desirable, and in that spirit of desirability I support this amendment.

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Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, I did not entirely overlook them; I thought they were redundant, on the basis that there is no chief inspector—he has been sacked—so, no, we have not asked the chief inspector to look at the matter. As and when an interim is appointed, I am sure that will be part of his remit.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, as always, I am grateful to all noble Lords, not only those who have spoken in this group, which is supposed to be about commencement of the Act, but also to those who participated in this important Report stage where 10 very important amendments—all of which improve rather than wreck the Bill—have been passed.

However, there is an alpha and an omega, and I remind noble Lords and Ministers opposite that, right at the beginning of the Bill, we are told in Clause 1(2)(b) that

“this Act gives effect to the judgement of Parliament”—

not the judgment of the Government or the Prime Minister, or the Home Secretary of the day, but the judgment of Parliament—

“that the Republic of Rwanda is a safe country”.

Amendment 45 is about giving Parliament a role in commencement of the Bill, because ratification of the Rwanda treaty is obviously an Executive act, not a parliamentary one, in the current terms. That is all; that is not wrecking—it is improvement. Many noble Lords have made that point.

In earlier debates, noble Lords, including noble and learned Lords, and Ministers have spoken about decrees. But this is Britain in the first quarter of the 21st century and we do not rule by decree; we govern by consent, democracy and accountability built on the rule of law. Commencement of this very controversial legislation should be by parliamentary judgment, as the Bill provides in Clause 1, and not by Executive decree, as the noble and learned Lord, Lord Stewart, mentioned earlier, and certainly not by just simple treaty ratification, which is an Executive act.

I am not going to press this amendment, but before this Bill returns, much amended, to the other place, I ask the noble Lords and Ministers to consider—because their whole argument is based on accountability and parliamentary sovereignty—whether Parliament, rather than Ministers or the Executive alone, should have a role in determining whether Rwanda is actually safe and continually safe, and whether this Bill, which may become an Act, should be brought into force. With that, I beg leave to withdraw the amendment.

Amendment 45 withdrawn.

Safety of Rwanda (Asylum and Immigration) Bill Debate

Full Debate: Read Full Debate
Department: Home Office

Safety of Rwanda (Asylum and Immigration) Bill

Baroness Chakrabarti Excerpts
That is why this statement of principle should underpin every single piece of legislation that we pass. I would have thought that most, if not all, Members of Your Lordships’ House, would have believed that, as the Government will say, this is completely unnecessary. So why on earth have we put this forward? We have put this forward because the Bill that your Lordships are discussing now explicitly disapplies aspects of domestic law and disapplies aspects of international law. That cannot be right, and as such I beg to move.
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, in overturning our Amendment 6, which reinstated domestic courts’ jurisdiction, the Minister in the other place called it “unnecessary” and “wrecking”. Well, it cannot logically be both. Still, to assuage any genuine rather than confected concerns about delays in removal to the future hypothetically safe Rwanda, we now add the stipulation that any interim relief be for

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

This is a significant concession. Motion D1 effectively prioritises these cases above other vital work of relevant courts and tribunals; it is a genuine legislative olive branch to an Executive that have snapped all others in two. But when they go low, let your Lordships’ House go high. I shall, I hope, be pressing Motion D1 very soon.

Lord Carlile of Berriew Portrait Lord Carlile of Berriew (CB)
- Parliament Live - Hansard - - - Excerpts

My Lords, we have some very difficult questions to answer here this afternoon, and there are many Members of this House who may not have quite made up their minds how to vote, if the opinion of the House is sought. I shall be brief. In a few moments, I shall ask a few questions of the noble and learned Lord the Minister, which may help us reach those decisions. But I hope that I speak for everyone in this House in saying that, although we may be viscerally concerned about the provisions of this Bill, we are not here just to obstruct it; we are here to make this a better Bill, in the way in which this House is set up to do.

I will reflect for a moment on the reference of the noble Lord, Lord Coaker, to the outrageous statement made by a Member of another place about compassion. If we look at this Bill and the previous related Bill together, what does this tell you about compassion? People who would, in some cases, have had a legitimate right to asylum—a legal right to asylum under UK and international law—have now been excluded from applying for asylum, even if they had been tortured in their home country, because they came here in a small boat. Compassion? Is that really compassion?

The fact they are forbidden to apply means they are deprived of all connection with the United Kingdom jurisdiction, which has an immense tradition of judicially reviewing administrative action to ensure that those who are affected by bad decision-making can, in certain restricted circumstances, obtain redress. Before I decide how to vote in these Divisions, I would like to hear the noble and learned Lord the Minister’s answer.

The Minister also referred to the cost of hotels. Well, as the noble Lord, Lord Coaker, said a few minutes ago, I think the figure is £592 million to keep 300 people in Rwanda for three years. That is £1.8-something million per head. I have not looked on the Ritz Paris website for some time—I may have had a meal there once at somebody else’s expense—but my recollection of looking at that website is that one could keep somebody in that hotel for three years, and have some money back, at the price that this process, as the National Audit Office says, will cost the country. Is this a fair and compassionate system, and is it a cost-effective one?

I turn to my second question. The Minister referred to the appropriate legislation to give effect to the treaty being already before the Rwandan Parliament—I think I cite him accurately. My understanding is that the Government accept that Rwanda is a democracy, so is the First Reading of a Bill, in our parlance, before the Rwandan Parliament, a guarantee of any kind that that legislation will be passed without amendment to give effect to the treaty? I do not see it that way. It certainly would be seen as an affront to both Houses of Parliament if Rwanda were to make that assumption about us.

My next question is this. What if our Government, contrary to their instincts, statements, wishes and insistence, find that Rwanda is, after all, as the Supreme Court found as a fact, not a safe country? Will the noble and learned Lord tell us what the Government would then do? How would they set about that problem? What would be the involvement of the monitoring committee? Who would decide that Rwanda was not a safe country after all? Would we simply have complacency, in which we just got on with the job of sending people, at £1.827 million per head, to Rwanda?

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Moved by
Baroness Chakrabarti Portrait Baroness Chakrabarti
- Hansard - -

At end insert “, and do propose Amendment 6B in lieu—

6B: Leave out Clause 4 and insert the following new Clause—
Decisions in individual claims
(1) Section 2 does not prevent—
(a) the Secretary of State or an immigration officer from deciding (under any applicable provision of, or made under, the Immigration Acts) whether the Republic of Rwanda is a safe country for the person in question or for a group of persons to which the person belongs,
(b) a court or tribunal considering a review of, or an appeal against, a relevant decision to the extent that the review or appeal is brought on the grounds that the Republic of Rwanda is not a safe country for the person in question or for a group of persons to which that person belongs, or
(c) a decision-maker considering whether there is a real risk that the Republic of Rwanda will remove or send the person in question to another State in contravention of any of its international obligations.
(2) The court or tribunal may grant an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of the person to the Republic of Rwanda, providing such prevention or delay is for no longer than strictly necessary for the fair and expeditious determination of the case.
(3) Section 54 of the Illegal Migration Act 2023 is disapplied for the purposes of this Act.
(4) In this section—
“interim remedy” means any interim remedy or relief however described (including, in particular, an interim injunction or interdict);
“relevant decision” means a decision taking by the Secretary of State or an Immigration officer (under any applicable provision of, or made under, The Immigration Acts) that the Republic of Rwanda is a safe country for the person in question.””
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, I wish to test the opinion of the House on Motion D1.

Safety of Rwanda (Asylum and Immigration) Bill Debate

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Safety of Rwanda (Asylum and Immigration) Bill

Baroness Chakrabarti Excerpts
The amendment before us is simple. It simply asks the Government to have due regard to domestic and international law—the Acts that this Parliament has passed, the international conventions we have signed, and the law of nations which prevent anarchy in our own country and across the world. How on earth has it come to this for the great Conservative Party—the party that has always said that it treasures the rule of law and will always stand up for it, and that has for generations lectured the party to which I belong on the importance of democracy, human rights and the rule of law, both internally and internationally? It is unbelievable that the Minister has just dismissed this with a swish of the hand, as did his colleagues in the other place. Something as important as this has been just dismissed: “We’re going to do it. Don’t worry about it. There’s no need for us to explain how on earth it’s possible”. Something as important as this has just been swept away. This Motion should be agreed as one more effort to say to our Government, “Be true to the traditions on which the democracy of this country has been based for centuries, something of which we have all been proud”.
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.

--- Later in debate ---
Moved by
Baroness Chakrabarti Portrait Baroness Chakrabarti
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At end insert “, and do propose Amendment 6D in lieu—

6D: Leave out Clause 4 and insert the following new Clause—
“Decisions in individual claims
(1) Where credible evidence displaces the conclusion that the Republic of Rwanda is a safe country, section 2 does not prevent—
(a) the Secretary of State or an immigration officer from deciding (under any applicable provision of, or made under, the Immigration Acts) whether the Republic of Rwanda is a safe country for the person in question or for a group of persons to which the person belongs,
(b) a court or tribunal considering a review of, or an appeal against, a relevant decision to the extent that the review or appeal is brought on the grounds that the Republic of Rwanda is not a safe country for the person in question or for a group of persons to which that person belongs, or
(c) a decision-maker considering whether there is a real risk that the Republic of Rwanda will remove or send the person in question to another State in contravention of any of its international obligations.
(2) The court or tribunal may having heard from, or having taken all reasonable steps to hear from, the Secretary of State, grant an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of the person to the Republic of Rwanda, providing such prevention or delay is for no longer than strictly necessary for the fair and expeditious determination of the case.
(3) Section 54 of the Illegal Migration Act 2023 is disapplied for the purposes of this Act.
(4) In this section—
“interim remedy” means any interim remedy or relief however described (including, in particular, an interim injunction or interdict);
“relevant decision” means a decision taking by the Secretary of State or an Immigration officer (under any applicable provision of, or made under, The Immigration Acts) that the Republic of Rwanda is a safe country for the person in question.””
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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I beg to move Motion C1, again, already spoken to, and I would like to test the opinion of the House.

Safety of Rwanda (Asylum and Immigration) Bill Debate

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Baroness Chakrabarti Excerpts
Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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My Lords, I shall speak to Amendment B1, as an amendment to Motion B.

I have asked for a further amendment in lieu to be put down, because I have raised important issues which need to be resolved before the Bill finally passes. As has been mentioned by the Minister, the Act will come into force on the day on which the Rwanda treaty enters into force. This means that your Lordships are being asked to say that, as from that very moment and without more, Rwanda is a safe country. That is not all, as Clause 2 states that from that date, every decision-maker, including the Secretary of State himself,

“must conclusively treat the Republic of Rwanda as a safe country”.

That is so, whether or not the treaty has been fully implemented, and whether or not Rwanda ceases to be safe some time in the future. The Secretary of State, just like any other decision-maker, will be locked by the statute into the proposition that Rwanda is a safe country, with no room for escape. In other words, it is no use his advisers saying that things still need to be done before all the protections and systems that the treaty provides for are in place. Nor is it any use his advisers saying that as these arrangements have broken down, Rwanda can no longer be considered safe. The Secretary of State is required by the statute to disregard that advice. He has no discretion in the matter. That is what the word “conclusively” in Clause 2 means.

The Minister has told the House several times that the Government are not obligated by the treaty to send anybody to Rwanda if the facts change. That may well be so, but that is not what the Bill says. The Secretary of State is bound by the statute to ignore any such changes. He is required by Clause 2 to treat Rwanda as safe, conclusively, for all time. If the Minister will forgive me, his head is buried in the sand, like that of the proverbial ostrich.

My amendment seeks to add two provisions to Clause 1. Before Rwanda can be judged to be a safe country, the mechanisms that the treaty provides for must be put into practice. Ratifying the treaty is an important step, but that is not enough. As has been pointed out repeatedly, the situation on the ground is still being developed. The treaty must be implemented before Rwanda can be considered safe. My amendment seeks to write into the Bill a provision whereby Rwanda cannot be treated as a safe country until the Secretary of State has laid before Parliament a statement from the independent monitoring committee that the key mechanisms the treaty provides for have been created. It provides that Rwanda will cease to be a safe country for the purposes of the Act if the Secretary of State makes a statement to Parliament to that effect. In other words, it provides the Secretary of State with the escape clause he needs if he is to escape from the confines of Clause 2, should that situation develop.

I remind your Lordships of what Sir Jeremy Wright said in the other place when my amendment was being considered there on 18 March:

“But it is simply not sensible for Parliament not to be able to say differently, save through primary legislation, if the facts were to change … the Government … should give some thought to the situation of the Bill…it must be right for Parliament to retain the capacity to reconsider and if necessary revise it”.—[Official Report, Commons, 18/3/24; cols. 679-80.]


Developing the point this afternoon, he said that I was wrong in my then amendment to give it to the monitoring committee to decide whether Rwanda was safe, as this should be a matter for Parliament. I agree with him and, as it happens, I have already deleted the reference to the monitoring committee from this part of my latest draft. What I am proposing now is that it be left entirely to the Secretary of State to decide, although he would no doubt seek the advice of that committee.

Sir Bob Neill and Sir Robert Buckland, both of whom spoke in favour of my amendment last time, also spoke in support of it this afternoon. Sir Robert Buckland accepted that there needs to be a system by which it can be verified that the treaty has been fully implemented. He said that to do this would reduce the possibility of legal challenge. He said that a reliable method of doing this was to use the monitoring committee set up by the treaty itself. He also said that there needs to be a mechanism for dealing with the situation if Rwanda is no longer safe, without resort to the time-consuming method of primary legislation. That is what my amendment seeks to provide, and as to the question of what happens in the future, my system is flexible: the Secretary of State can come to Parliament and say that Rwanda is not safe. He does not need primary legislation, so the Act is still there, and he could come back when the situation is cured to say that Rwanda can be regarded as safe now. It provides not only an escape clause but flexibility to enable the Act to continue if necessary, without the amending legislation.

The Commons reasons set out in the Marshalled List are exactly the same as last time. They state that my amendments are “not necessary” because the Bill comes into force when the treaty comes into force, and that

“it is not appropriate for the Bill to legislate for Rwanda adhering to its obligations under the Treaty as Rwanda’s ongoing adherence to its Treaty obligations will be subject to the monitoring provisions set out in the treaty”.

No doubt that is so, but that still fails to face up to what I am saying on both points.

In short, the coming into force of the treaty is not enough. We need confirmation and verification that it has been implemented before we can make the judgment that Rwanda can be considered safe. It simply is not sensible for Parliament not to be able to say differently, save through primary legislation, if the facts were to change.

I regret that I have had to press my points yet again. It is not my intention to obstruct the operation of the Bill in any way. My amendment is necessary to make sense of the Bill. It is modest, simple and easy to operate. The other place needs to think yet again.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
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My Lords, it is an absolute privilege to follow the noble and learned Lord, Lord Hope. There are three Motions left: B1, C1 and D1. Motion B1, as we have heard, is the parliamentary sovereignty amendment—that, if I may say so, is what the noble and learned Lord has just described. If the Bill is about restoring sovereignty to Parliament, then Parliament must have an ability to scrutinise the ongoing future safety of Rwanda. Forgive me for paraphrasing.