Safety of Rwanda (Asylum and Immigration) Bill

Lord Faulks Excerpts

2nd reading
Monday 29th January 2024 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, the Government have stuck with the Rwanda scheme despite the Rule 39 decision in Strasbourg in June 2022 and despite the decision of the Supreme Court, which concluded that Rwanda was not safe.

The Strasbourg court’s interim ruling has been described as a ruling by a foreign court delivered by a judge in pyjamas. I do not think that is a helpful way of characterising it. All courts need to have the ability to make interim orders, sometimes at inconvenient times of day, and the court is not foreign to us as long as we remain members.

However, the decision was based on the Strasbourg court’s own rules rather than on what is in the European convention. It was made by a still-anonymous judge. No reasons were given and there was no chance for the Government to come back on a return date. This breaks just about every rule of natural justice and procedural fairness that normally applies in applications for interim relief.

As to the Supreme Court’s decision, it said that Parliament should not legislate to reverse the decision of what is the final court of appeal in this country. But Parliament has done precisely that in relation to three decisions, to my certain knowledge, in the last two years. I was chairman of the Independent Review of Administrative Law and the panel considered carefully whether it was appropriate for Parliament to reverse decisions of the Supreme Court. We concluded that Parliament should think long and hard before doing so, but that it was perfectly orthodox for it to take such a course. Indeed, the submissions we received from all senior judges did not suggest otherwise.

[Viscount Hailsham (Con)]

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

[Lord Faulks (Non-Afl)]

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

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

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

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

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