Safety of Rwanda (Asylum and Immigration) Bill

Baroness Lister of Burtersett Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Baroness Chakrabarti (Lab)]

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

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

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

[Baroness Lister of Burtersett (Lab)]

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

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

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

or where the person concerned

“is themselves a survivor of torture”.

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

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

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

The JCHR emphasis that this is

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

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

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


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

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

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[Lord Stewart of Dirleton (Con)]

My Lords, that would depend entirely on the case presented by the individual.

I thank the noble Baroness, Lady Lister of Burtersett, for tabling Amendment 30 with regard to victims of torture. With reference to the points of the noble Lord, Lord Coaker, in winding up, while we will reflect on the matters she raises, at this stage I cannot support their inclusion in the Bill.

[Baroness Lister of Burtersett (Lab)]

Is the Minister going on to another point? I did ask some specific questions.

[Lord Stewart of Dirleton (Con)]

I am of course ready to take specific questions that the noble Baroness develops, but it was not my intention to pass by her contribution at this stage.

[Baroness Lister of Burtersett (Lab)]

Is the Minister going to answer my questions?

[Lord Stewart of Dirleton (Con)]

My Lords, as I have said several times during this debate, at this and other stages, it is the Government’s assessment that Rwanda, which is a signatory to the United Nations convention against torture, is generally a safe country with respect to the rule of law. The treaty, at Article 15(9), provides that the monitoring committee is to develop a complaints system that can be used by relocated individuals. The committee will be expected to report any significant issues to the joint committee straightaway, and may provide advice and recommendations to the joint committee on actions that should be taken to address issues that have been identified. Any issues escalated will involve reporting directly to the joint committee co-chairs in relation to emergency and urgent situations. We will continue to assess complaints and observations by Redress and the other organisations to which the noble Baroness, and others—the noble Lord, Lord Cashman, made mention of this as well—have referred when they are referred to us.

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I remind the Committee of aspects of Rwanda and its strong track record for supporting asylum seekers. It is currently hosting more than 135,000 migrants who have found sanctuary there. It is a state party to the 1951 United Nations convention on refugees and to the seven core UN human rights conventions. In those circumstances, I submit that the concerns which the noble Baroness raises can be taken as having been dealt with.

[Baroness Lister of Burtersett (Lab)]

The amendment has two parts. One was the about treatment of asylum seekers in Rwanda and that there should not be evidence of torture for two years. The other was about asylum seekers who have already suffered torture. I asked a couple of specific questions in relation to them. One was about what investigations the Government have done about the support they can expect in Rwanda. Supporting people who have gone through torture is more than just everyday support. These people have been traumatised. They need help with their mental and physical health. Even in this country, that help is often inadequate, and they have to turn to civil society groups. The point was made the other day that civil society is still quite weak in Rwanda, so I do not know whether there are any organisations that could specifically help torture survivors. I also asked why the Home Office does not routinely collect data about the number of people in detention who have suffered torture, given that the Home Office’s rules say that torture is an example of a vulnerable group that needs special support in detention.

[Lord Stewart of Dirleton (Con)]

My Lords, I cannot answer the noble Baroness’s question about why those statistics are not kept. My noble friend Lord Sharpe of Epsom tells me that they are not. That may be a matter to be taken back to the Home Office to be given consideration. It would be pointless for me to speculate on the reasons why that should not be.

[Lord Stewart of Dirleton (Con)]

My Lords, I am reminded that Article 13 of the treaty makes the specific provision:

“Rwanda shall have regard to information provided”


by the United Kingdom

“about a Relocated Individual relating to any special needs that may arise as a result of their being a victim of modern slavery or human trafficking, and shall take all necessary steps to ensure that these needs are accommodated”.

[Baroness Lister of Burtersett (Lab)]

I could well have missed it when I read the treaty, but the quotation the Minister has given talked about human trafficking and slavery but not torture. My noble friend has reinforced my fears about what will happen to torture survivors, who will probably have very serious mental health needs, if they are removed to Rwanda, however “safe” it might be.

[Lord Stewart of Dirleton (Con)]

My Lords, all relocated individuals will receive protection appropriate to them and assistance according to their needs, including, where necessary, referral to specialist services to protect their welfare. Furthermore, it remains possible for an individual to raise a claim that their individual circumstances mean that Rwanda is not a safe country for them. Should such a claim succeed in demonstrating that serious, irreversible harm will result from removal to Rwanda, that removal will not take place. We expect such successful claims to be rare, bearing in mind the safety of Rwanda, which I have already set out in my response.

The United Kingdom and Rwanda will continue to work closely to make this partnership a success. I do not accept that individuals relocated to Rwanda would be at risk of torture or any other form of inhumane or degrading treatment. I assure the Committee that, under this Bill, decision-makers will already be able to consider compelling evidence relating specifically to a person’s individual circumstances. Should someone with particular vulnerability concerns be relocated to Rwanda, safeguarding processes will be in place.

That Rwanda cares deeply about refugees is amply demonstrated by its work with the UNHCR to accommodate some of the most vulnerable populations who have faced trauma, detention and violence. We are confident that those relocated under our partnership would be safe, as per the assurances negotiated in our legally binding treaty. I therefore invite the noble Lord to withdraw his amendment.

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[Viscount Hailsham (Con)]

My Lords, I rise to speak briefly to the generality of Clause 3. I signed the notice opposing Clause 3 standing part—not on this occasion, although that may be something to do at a later stage. We need to be cautious about advancing the proposition contained in Clause 3, because it disapplies the provisions of the Human Rights Act in the various respects specified in Clause 3(2). As the noble Lord, Lord Scriven, has rightly reminded your Lordships, this is domestic legislation. It is not legislation imposed on us but legislation that Parliament chose to enact. It is also the cornerstone of the proposition that human rights in this country should be universal in their application.

I regard what we are doing in disapplying serious sections of the human rights legislation in respect of specified groups in the community as deeply dangerous. It is a precedent which we should not formulate. At Second Reading, I took the liberty of reminding your Lordships of what Pastor Niemöller said about not crying out in opposition when bad things were being done. We are being asked to stand on a very slippery slope, and very slippery slopes lead very often to very dirty waters. We should not embark on this exercise.

That is not just my view but the view of, for example, the Constitution Committee. I commend to your Lordships paragraphs 27 to 31 of the report that was published on 9 February. I also commend to your Lordships the views of the Joint Committee on Human Rights, which were published on 12 February. Paragraph 95 and conclusion 7 are extremely critical of the Bill.

I turn directly to my noble friends on the Front Bench. I do not blame them personally for what is happening. My noble friend Lord Deben and I were Ministers for many years at all levels. I know perfectly well that my noble friends will communicate our views to their departments, but I also know that they do not determine policy and it is not their fault. However, the overriding conclusion that I have come to from this whole debate is that this Government intend to railroad this Bill through without challenge.

It is on that point that I would like my noble friends to communicate another message to the Government. People such as me are Conservatives. We will always be Conservatives. Yet we are deeply troubled, deeply distressed, by how this Government are operating. It is manifest in many ways in this Bill. We are disregarding the rule of law. We are ignoring the principles of the separation of power. We are disapplying protection given to minorities. We are becoming immoderate in our tone. We have abandoned pragmatism in the conduct of policy. I know why they are doing that. They suppose that they can win the election by dog-whistle policy, but they cannot. The outcome of the election is probably already determined by circumstance and by Mr Johnson and by Liz Truss and various other things that have already happened and which the public are probably not going to forgive the Government for. You cannot solve that problem by dog-whistle policies, but you can deepen the rift between the electorate and us.

I am a great admirer of Matthew Parris, one of my oldest friends. His articles, which he writes regularly, tell one what moderate conservatism should be about. At this stage in government, we need to show that we can reinstate the traditional values of conservatism. That will not save us at the general election, but it will make recovery a lot easier.

[Baroness Lister of Burtersett (Lab)]

My Lords, it is a privilege to follow the noble Viscount—probably inadequately. I added my name to the clause stand-part notice because, as I made clear at Second Reading, I am dismayed by Clause 3’s disapplication of parts of the Human Rights Act. I support everything that has already been said by various noble Lords.

The main concern raised by bodies such as the Equality and Human Rights Commission, the Northern Ireland Human Rights Commission, the Law Society and the JCHR, on a majority, together with more than 250 civil society organisations, is that, in the words of the EHRC, this

“undermines the fundamental principle of the universality of human rights”

and

“damages the UK’s human rights legal framework”.

One of the main voices, a group of asylum seekers and refugees, some of whom are from Rwanda, have said how painful they have found the idea of a two-tier human rights system and the loss of what they rightly see as a legal right to seek protection.

Not only is this becoming a habit on the part of the Government, as my noble friend Lady Chakrabarti has pointed out, but the JCHR report, on a majority, cites as particularly alarming the disapplication, for the first time ever, of Section 6 of the HRA. It warns that this

“would effectively grant public authorities statutory permission to act in a manner that is incompatible with human rights standards”.

As such,

“it is very hard to see how it could be consistent with a commitment to complying with international law”.

As has already been pointed out, the Constitution Committee comments that disapplication—

[Lord Murray of Blidworth (Con)]

The noble Baroness appears to suggest that, because the Bill disapplies Section 6, local authorities would be obliged to act or could act in a manner that was unlawful. She ignores the fact that, from the British accession to the European Convention on Human Rights until 1998, our domestic bodies were still deemed to be a part of the United Kingdom state, which obviously had an international obligation to comply with the rights convention. All the provision of Section 6 did was to impose a domestic law obligation. Its removal in this context does not have the effect that the noble Baroness seeks to persuade your Lordships it does.

[Baroness Lister of Burtersett (Lab)]

I am sorry, but I was only quoting—I know it was a majority vote and that the noble Lord did not vote for this bit—from the Joint Committee on Human Rights report, which still stands, even though it was a majority vote for that particular paragraph. Perhaps I will leave it to the lawyers, if I have not quite got the legal point.

The Constitution Committee comments that disapplication of HRA provisions is of “considerable constitutional concern”, and invites us to

“consider the potential consequences of undermining the universal application of human rights”.

The UNHCR expresses its deep concern at the exclusion of asylum seekers from some of the human rights protections, not only because it

“undermines the universality of human rights”

but because of its

“implications for the rule of law both domestically and internationally”,

setting

“an acutely troubling precedent”.

Universality means all humans, regardless of their immigration status. In the words of the Universal Declaration of Human Rights, universality principles stem from recognition of the

“inherent dignity and of the equal and inalienable rights of all members”—

all members—

“of the human family”.

As I said at Second Reading, breaching this principle speaks volumes as to how the Government see asylum seekers, for they are, in effect, being treated as less than human.

I make no apology for repeating these points from Second Reading, because even though a number of noble Lords raised their disquiet about the disapplication of the Human Rights Act, the Minister, the noble Lord, Lord Sharpe, did not address our concerns in his closing speech or his subsequent letter to Peers.

The closest the Minister came in the debate was perhaps to do so implicitly, when he dismissed in a peremptory manner the advice of the Northern Ireland Human Rights Commission, which was established under the Northern Ireland Act 1998 to

“review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights”.

When challenged by the noble Baroness, Lady O’Loan, who is no longer in her place, as to whether he had actually read the commission’s advice, he responded that

“the Government take a different view to those opinions”.—[Official Report, 29/1/24; col. 1099.]

The commission’s opinion, which is perhaps better described as formal advice, concludes that the Bill

“does not consider the Belfast (Good Friday) Agreement, and the integral role of both the Human Rights Act and ECHR in the complex fabric of the NI Peace Process and devolution”.

Indeed, it warns that it

“appears to be incompatible with obligations under the … Agreement”.

That position is echoed by the Human Rights Consortium in Northern Ireland. In its view, these proposals

“represent a violation of the Belfast/Good Friday Agreement by effectively limiting access to the Human Rights Act … for those seeking refuge in Northern Ireland. They also represent a violation of the Article 2 commitments of the Windsor Framework by undermining the commitment to the non-diminution of rights contained within the ‘Rights, Safeguards and Equality of Opportunity’ section of the Belfast/Good Friday Agreement—a section which explicitly guaranteed our access to the rights protected in the Human Rights Act”.

The JCHR saw these concerns as “serious” and, by a majority, reported that

“The Government has not adequately explained why it considers those concerns are not merited”.


It therefore asks for

“a full explanation of why it”—

the Government—

“considers the Bill to be consistent with the Windsor Framework and Good Friday Agreement before … . Report stage”.

I am not quite sure which Minister will be responding, but will the noble and learned Lord undertake to provide such an explanation? Can he please explain why we should put more faith in the Government’s interpretation of the implications for the Belfast/Good Friday agreement than those of both official and unofficial human rights watchdogs in Northern Ireland? That is all the more so given the Constitution Committee’s invitation to us

“to pay particular attention to the constitutional consequences … for the Good Friday Agreement”,

and the questions that it raises about the compatibility of Clause 3 with ECHR rights. I know that the question of Northern Ireland came up late on Monday, but it was from a rather different perspective.

Finally, more generally, can the Minister tell us what he thinks the universality of human rights actually means? What is the Government’s justification for breaching this fundamental tenet of human rights?

[The Lord Bishop of Chelmsford]

My Lords, I support Amendment 33 from the noble Lord, Lord Kirkhope of Harrogate, to which I am a signatory. I am grateful to the noble Lord for the amendment and I welcome the opportunity to discuss the role of Parliament if a higher court were to declare this legislation to be incompatible with the convention right, or indeed a number of rights.

We should not forget that the Government have been unable to make a statement in the Bill that it is compatible with convention rights. As the Government nevertheless wish Parliament to proceed with the Bill, it seems prudent to probe what the role of Parliament would be in determining how any potential incompatibility should be addressed. In fact, the Attorney-General has said in the Government’s own legal position paper that it should be for Parliament to address any determination of incompatibility by the courts. The noble Lord, Lord Kirkhope, has eloquently set out the motivation for this amendment, and I agree that what it does is simply to expound what parliamentary sovereignty would look like in this context.

I appreciate that the Government believe that there is no basis for a declaration of incompatibility, and that therefore Section 4 of the Human Rights Act has not been disapplied. However, if Parliament proceeds to pass the Bill on the basis of this view, but the domestic courts declare otherwise, can the Minister say what objection there can be for giving Parliament a clear opportunity to revisit this issue? Surely the Government and Members across all Benches agree that parliamentary sovereignty includes the legislative function’s ability to oversee the executive function. As the legal position paper reads:

“The principle that Parliament should be able to address any determination by the courts of incompatibility, rather than primary legislation being quashed by the courts, is part of the fundamental basis of Parliamentary sovereignty”.


The Human Rights Act does not compel the Government or Parliament to remedy an incompatibility, but Parliament must be able to take steps to do so. It is not unreasonable to expect Ministers to explain—and to explain without delay—why they may not be bringing forward a remedial order. If the Minister disagrees with this supposition, can I ask him to please make clear the Government’s position?

Your Lordships will know that we have spoken with one voice on these Benches, as we believe that the Rwandan partnership agreement is an abdication of both our legal and our moral responsibility to refugees seeking sanctuary here in the UK. It is highly disturbing that this Bill implies that human rights are somewhat discretionary, somehow no longer universal, and that they can be disapplied for those reasons outlined in domestic law.

The fundamental truth that I believe in is that every person is equally deserving of rights, as every person is equally made in the image of God. However, this is not just a theological statement but also an indisputable legal principle that underpins our international human rights framework: that all are equal before the law. Noble Lords will know that I am not a lawyer, but this point was very well made by the noble Baroness, Lady Chakrabarti. She made it powerfully, better than I could do. Removing asylum seekers from certain protections enshrined by the Human Rights Act severely undermines the universality of human rights and our collective access to justice. As the refugee convention states, protection is not a simple concession made to the refugee; he is not an object of assistance but rather a subject of rights and duties.

Human rights are not an opt-in or opt-out concept, and Section 4 of the Human Rights Act gives the courts the opportunity to remind us of that. This is surely central to the UK’s commitment to the rule of law. Parliament has the right to create law, but our authority cannot extend to creating injustices. Parliament therefore may need to ask whether we should maintain parliamentary consent if the Bill is found to not afford adequate protection of fundamental human rights, and Amendment 33 facilitates this. It is a perilous time for the protection of human rights across the globe, and the UK’s contribution should not be to diminish their value or put them further out of reach for some of the world’s most vulnerable people. I hope and pray, therefore, that we have the chance to revisit the proposals in the Bill.

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[Lord Stewart of Dirleton (Con)]

Given how well the declaration of compatibility procedure is working and has worked in the past, there is no reason to innovate on that basis.

As the Minister of State for Illegal Migration set out in the other place, the United Kingdom has a long-standing tradition of ensuring that rights and liberties are protected domestically and that we are fulfilling our international human rights obligations. We remain committed to that position and will ensure that our laws continue to be fit for purpose and work for the people of the United Kingdom.

The noble Lord, Lord Kerr of Kinlochard, raised the matter of refoulement, the sending back of people to dangerous places from whence they came. I refer again to the debate of Monday night about the extent of the treaty. Although some of the provisions in the Bill are novel, the Government are satisfied that it can be implemented in line with convention rights. We know that people will seek to frustrate their removal from this country, and the Bill prevents the misuse of the courts to that effect. As such, I invite the noble Lord to withdraw his amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am sorry to prolong matters, but I asked an explicit question about Northern Ireland. I pointed out that the Bill applies to the whole of the United Kingdom. The Joint Committee on Human Rights, by majority, asked for an explanation before Report of why the Government do not accept the advice of Northern Ireland’s watchdogs —its Human Rights Commission in particular—on incompatibility with the Good Friday agreement and Windsor Framework. If he cannot provide an explanation, can I please get confirmation that we will get that explanation before Report?

[Lord Stewart of Dirleton (Con)]

I beg the noble Baroness’s pardon for seeming to ignore her contribution. I was at fault. I touched on the Northern Ireland situation in answering Amendment 80 tabled by the noble Lord, Lord Dodds of Duncairn, on Monday night. That is to be found in the relevant Hansard at col. 120. As I said to the noble Lord, and to the noble Lord, Lord Anderson of Ipswich, I am reluctant to step outwith the responsibilities of my department in relation to Northern Ireland matters, which may have certain aspects with which I am not readily familiar. To that extent, if the noble Baroness is content, I will write to her, making sure that the answers reflect the specific questions that she has posed in debates to your Lordships’ Committee.