Rwanda: Memorandum of Understanding
(1 year, 10 months ago)
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Baroness Hayter of Kentish Town
To ask His Majesty’s Government why they used a Memorandum of Understanding rather than a treaty as the vehicle for the agreement with Rwanda on the transfer of asylum seekers. Relevant document: 7th Report from the International Agreements Committee
Baroness Hayter of Kentish Town (Lab)
My Lords, I am delighted, after four months, to see the International Agreements Committee’s report on Rwanda debated here; albeit, I have to say, because of my success in a ballot rather than because of its importance. Yet this issue is important to the asylum seekers involved but also for the future of our parliamentary role in scrutinising the action of Ministers.
Thanks to the Constitutional Reform and Governance Act 2010, treaties must be laid before Parliament for 21 days, where they can be debated, evaluated and, in the case of the Commons, their ratification endorsed or delayed. That is a powerful stay over the ability of government to make international treaties without parliamentary consent.
Today, we will hear from members of the International Agreements Committee who wrote this report: the noble Lords, Lord Kerr of Kinlochard, Lord Lansley and Lord Razzall, the noble and learned Lord, Lord Morris of Aberavon, and the noble Earl, Lord Sandwich, together with one of our newer members, the noble Lord, Lord Udny-Lister. On behalf of this House, they and other members of the committee examine every treaty and report on it. However, with the Rwanda accord, we see an issue with enormous human rights and rule of law implications, potentially affecting the lives of thousands, yet the agreement was signed not as a treaty but as a memorandum of understanding. This allowed the Government to bypass Parliament; indeed, it came into force on signature without any opportunity for parliamentary scrutiny.
Two weeks ago, on 12 January, two Lords committee reports on the usurping of parliamentary power by Ministers were debated in this Chamber. It was stated:
“The abuse of delegated power is in effect an abuse of Parliament and an abuse of democracy.”—[Official Report, 12/1/23; col. 1536.]
The first report, Government by Diktat, was in the committee’s words,
“a stark warning—that the balance of power between Parliament and Government has ... been shifting away from Parliament”.
The second, Democracy Denied?, was an alert
“to a potentially serious threat to a cornerstone of our constitution—effective parliamentary scrutiny of legislation”,
it being a
“matter of urgency that Parliament should … consider how the balance of power can be re-set”.
On Rwanda, the avoidance of the CRaG Act treaty scrutiny by means of an MoU makes one conclude that that is exactly why that vehicle was chosen. I will not go into the rights or wrongs of the intention within the MoU—the offshoring of asylum claims—because its legality is being tested in the high courts, while its morality is for other fora. However, we noted in the report that, since this was agreed by a non-binding MoU, its so-called safeguards are not legally enforceable, meaning that neither the individuals concerned nor the UK can ensure that asylum applicants’ rights are protected once they arrive in Rwanda.
Our committee concluded that the Government should not have signed a deal with Rwanda merely as a political statement without parliamentary scrutiny. It has significant consequences for individuals and their rights; it involves public expenditure; and it is a major new policy, with far-reaching implications. Surely something of this importance is the business of Parliament and not just of Ministers.
It is unacceptable that a Government should use prerogative powers to agree important arrangements with serious human rights implications without scrutiny by Parliament. Rather, such agreements should be signed as legally enforceable treaties or, if for any reason that is not possible, the Government should deposit MoUs for parliamentary scrutiny in the same way as a treaty, allowing 21 days before implementation.
Indeed, major constitutional changes to our handling of refugees is even better done by legislation, which, we read in the Times, the Government are now planning. Regardless of whether any of us agree with that policy, being described elsewhere as draconian and possibly removing rights of appeal, should Parliament agree, then that is the law. However, I had concerns when I read in yesterday’s Sunday Times that if a court does something that the Prime Minister does not like, he will pull us out of the European Convention on Human Rights rather than accept a judge’s ruling. The Government seem to think they can be above the law.
Today’s debate is about why the Government chose to bypass Parliament in the method by which they chose to implement a new policy. We invited the Government to engage constructively about how to handle non-treaty arrangements of such importance. Unfortunately, we were given no sensible answer and no debate in your Lordships’ House to put our case in public. Our ballot system for debate is what brought us here today and I am grateful that that at least existed and, for once, I was lucky in the ballot. I hope, however, that today we will get a more constructive answer from the Minister to this serious question: why did the Government use a MoU rather than a treaty for the Rwanda agreement?
Lord Lansley (Con)
My Lords, I congratulate the noble Baroness, Lady Hayter, on securing this debate and, indeed, on her persistence in doing so. I think the committee, of which I was then a member, was absolutely right to conduct an inquiry and to challenge, as we did, the Government’s decision to use a memorandum of understanding as the basis for this arrangement with Rwanda. By deliberately making the arrangement—of course it is not an agreement, according to the Government—not binding in international law, the Government deliberately put it outside the scrutiny of the Constitutional Reform and Governance Act. So there is a very simple principle at stake in this debate: should significant international agreements be scrutinised by Parliament?
This agreement is in fact both significant and controversial. The cost is high. The risk of non-delivery is also high. There was insufficient evidence of potential effectiveness, such that the Permanent Secretary at the Home Office at the time had to seek a ministerial direction on value-for-money grounds before proceeding. The High Court has determined that domestic legislation gives the Government the necessary powers, but this does not preclude the possibility that removals to Rwanda of some individuals may conflict with the provisions of the refugee convention. This and the lack of any enforcement powers in the arrangement further strengthen the case for scrutiny.
The Government should recognise that their use of the prerogative power subsists by virtue of the Government’s control of Parliament. The sovereignty they enjoy is that of the sovereign in Parliament. When they fail to recognise this, or abuse the privilege, they hasten the day when we will need to legislate to specify when and how the Government can enter into such agreements and in what circumstances Parliament must assent. I think that in this case the Government got the procedure wrong. I hope that today the Government, whether or not they persist in the policy, will accept that they got it wrong and undertake not to repeat that error.
Baroness Lister of Burtersett (Lab)
My Lords, I refer to the register and my support from RAMP. One reason why the MoU is such an important political issue, as agreed by the committee and the Government, and also a moral issue, is the widespread fear about the implications for children wrongly assessed as adults. I welcome the assurance in a Written Answer that
“no one undergoing an age assessment, or legally challenging the outcome of an assessment, will be relocated until that process is fully concluded”,
but I am advised that where the child has been assessed as an adult at the border, even if they subsequently challenge that assessment, they may still be issued with a notice of intent, which can create acute anxiety, especially as they have only seven days to respond. Can the Minister say whether that advice is correct?
Given the many procedural errors identified in the High Court Rwanda judgment and the chief inspector’s comment that the age-assessment process for those arriving by small boats was “perfunctory”, how can we have confidence that unaccompanied children who do not understand the age-assessment process or have no legal support will not be wrongly issued with a notice of intent? Can the Minister explain why, when we have been told that no decision has yet been taken as to whether families with children might be relocated, Care 4 Calais reports that 42, or one-fifth, of its clients issued with a notice of intent since last August have children?
Lord Razzall (LD)
My Lords, I share the views of the noble Baroness, Lady Hayter, and the noble Lord, Lord Lansley, somewhat cynically, that the Government have chosen this memorandum of understanding rather than a treaty so it should not be subject to parliamentary approval under the relevant legislation. That would mean a full parliamentary debate, permitting the treaty to be rejected. We have been unable to debate the Rwanda situation until today. Surely there should have been a debate on whether Rwanda is a safe country to send asylum seekers to, particularly in light of the recent history of genocide and ethnic cleansing in that country. It is even more important because many people do not realise that if a migrant seeks asylum in Rwanda and their application for asylum is granted, they only stay in Rwanda and lose the right to come here.
Few can doubt that our policy towards asylum seekers is in a mess. It is not just a failure to deal with migrant boats across the channel. I thought the Member of Parliament for East Worthing and Shoreham could not have put the problem better with his question to the Home Secretary at a recent Home Affairs Select Committee meeting. He asked her how a teenage migrant seeking asylum from an African country—and not Syria, Ukraine or Afghanistan—could apply for asylum. Her reply was that if the migrant arrived in the UK, they could put in an application on arrival; that would be the process. When Tim Loughton pressed her on how the migrant could arrive here legally, she had no answer. The disgrace of the current situation is demonstrated when the Home Secretary cannot answer a key question from one of her key supporters.
Lord Kerr of Kinlochard (CB)
They did not say so at the time but the Government now maintain that the CRaG Act 2010 overruled the previous understanding that the Government would also draw to Parliament’s attention agreements not given treaty form but which bind the nation and
“involve international obligations of a serious character.”
I argue that the Rwanda agreement, and perhaps Prime Minister Johnson’s agreements with Sweden and Finland on security, match that description, but the Government say that the 99 year-old Ponsonby rule is dead.
The Government also reject the International Agreements Committee’s proposal to agree criteria for deciding whether an agreement should be a memorandum of understanding or a treaty. They say that that would restrict the royal prerogative. Yes, it would; I understand the argument, although of course it would depend on what the criteria were. What I do not understand is that they also reject the alternative course of agreeing criteria in determining which non-treaty agreements are so significant as to justify parliamentary scrutiny—the scrutiny Ponsonby promised. There would not be very many. I recall from my past life that most MoUs are routine—updating, renewing and not amounting to very much. They are small beer, certainly not worth Parliament’s attention. But there are some that are very important, and I would say that the Rwanda agreement is one of them. So I urge the Minister to ask the FCDO to look again at the idea of agreeing criteria for separating the many sheep from the few Rwanda-type goats. Substance matters as much as form—I would say, more so.
The Lord Bishop of Durham
I declare my interest in RAMP as laid out in the register. The Lords Spiritual as a whole chose to speak out against the transfer of asylum seekers to Rwanda. We did not do this lightly, knowing the privileged role we hold in the life of our nation, but the memorandum of understanding brings into question fundamental issues about individual rights, our commitment to international law and our moral standing as a nation. It is because of these deep and important questions that I believe the use of an MoU was highly inappropriate.
The Government, in response to the International Agreements Committee in 2020, said that MoUs are used primarily for “technical or administrative matters”, but in this instance, we are talking about the transport of vulnerable people thousands of miles away, before and without considering their claim to asylum. This is not technical or administrative; these are men, women and children, to whom we owe a duty of care under international law. With such far-reaching implications, parliamentary scrutiny and debate should have been facilitated, whether or not the Ponsonby rule, or subsequently the Constitutional Reform and Governance Act, applies to non-treaty agreements. Let me also add that a monitoring board which has yet to meet and which sets its own work plan is not a sufficient level of oversight for an agreement of this nature.
I finish by briefly mentioning our responsibility to children. When announcing the Rwandan partnership, the then Home Secretary said that it would operate as a scheme mainly for single male migrants. However, we now know that Ministers are considering whether families seeking asylum at our borders will be subject to this deportation, the possibility of which I must say I find intolerable. Surely it would be unacceptable for any such extension not to be ratified by Parliament. If the Government do decide to include children in the scheme, which I implore them to simply disregard, they must commit to bringing it before this House. Children deserve the highest level of legal safeguards, in both the letter and spirit of the law.
Lord Udny-Lister (Con)
My Lords, despite being one of those who strongly support the Government, certainly on these Benches, I rise with regret to say that I am in agreement with what has been said by many others. After years of political neglect, our asylum system is clearly broken. I fear that the agreement with Rwanda, which has so far failed to act as a meaningful deterrent, is but a distraction from what needs to be done to break the stranglehold of the criminal gangs who are profiting from the exploitation of people.
Other noble Lords have touched on the technicalities of why it would have been wiser to use a treaty rather than a memorandum of understanding, so I will not labour that point, except to say that I share the concerns of the noble Baroness, Lady Hayter, that an MoU eradicates the opportunity for effective parliamentary scrutiny. I hope that my noble friend the Minister can provide remedies for this concern in his winding up.
It is through the swift deportation of illegal immigrants to their safe country of origin, not through an MoU with Rwanda, that the perilous channel crossings will be brought to an end. I therefore welcome the Government’s commitment to introduce legislation that will see illegal immigrants deported within days if their claims for asylum are rejected. The Government can be assured of my support if that legislation comes here. Recently, the Government’s successful deportation of 43 people back to Albania was a step in the right direction—although a very small one when you consider that some 13,000 Albanians arrived in the UK last year. I wish the Government would direct more attention here. Does my noble friend agree that securing more bilateral agreements, such as the UK-Albania joint communiqué, must be the way forward if we are to secure our borders and have a fair asylum system?
I conclude by commenting on the asylum backlog. Some 140,000 people are waiting for a decision on their asylum claim. That is where efforts need to be directed, to get it under some kind of control.
Lord Parekh (Lab)
My Lords, I support my noble friend Lady Hayter of Kentish Town for several reasons, of which three are particularly important. I hope the Minister will offer a satisfactory response to them.
First, MoUs are not legally binding documents; they involve no legal obligations on either side and they are not subject to parliamentary scrutiny. Therefore, to replace them is to emasculate our democracy. There are already threats to democratic practices in our country, and I do not think we need to add to them.
Secondly, given not just this Government’s record on migration but that of the previous one, there is always reason to worry about what they might do with the licence given to them to replace legal documents with memoranda of understanding. The important thing is that memoranda of understanding can easily become a kind of camouflage or cover-up under which you can write almost anything that you want.
Finally, asylum seekers will have no understanding of the prevailing conditions in Rwanda and therefore cannot know what effective representation they should make—hence there is always a danger that the MoU will badly damage their basic rights.
In the light of all this, it is not at all surprising that the United Nations High Commissioner for Refugees has said that this proposal is incompatible with the 1951 refugee convention. It is not just him; a lot of other people have also reached that conclusion. I therefore fully support my noble friend Lady Hayter and hope that the Minister can reassure us that this will not become common practice.
Lord Hannay of Chiswick (CB)
My Lords, the noble Baroness, Lady Hayter, is to be congratulated on bringing this aspect of the Rwanda agreement to the House for debate. It is one of the many contentious aspects of that agreement, and it is impossible to avoid the suspicion that the main driver of the choice of an MoU rather than a treaty is that it escapes full parliamentary scrutiny, let alone approval by Parliament.
Avoiding full parliamentary scrutiny has also made it more difficult to elicit from the Government a clear answer to the question of whether the agreement is consistent with our treaty obligations to asylum seekers under the 1951 refugee convention, to which we are a party. The UN High Commissioner for Refugees, whose job is to ensure that parties to the convention respect its provisions, says that it is not.
The Minister wrote to me on 3 February setting out the reasoning behind his curt and cursory reply to my question on 24 January. That is welcome, but it is not convincing. The hard fact is that there is no provision in Article 31 of the convention or elsewhere in it authorising a party to refuse even to consider an asylum application before deporting the applicant. It is bizarre that in that letter the Government still referred wistfully to the Dublin convention, when it was their act of “getting Brexit done” that resulted in its loss.
All this may sound rather arcane, but it matters. The Government’s clearly proclaimed policy is to uphold the rules-based international order, but we are now, by unilateral assertion, deciding to act in breach of one of those rules. What is to stop others doing likewise? What would then remain of the rules-based international order? There are reports that the Government may be contemplating doubling down by introducing legislation to deport to Rwanda even potentially genuine asylum seekers—for example, Afghans fleeing the Taliban or Iranian women fleeing persecution—without any chance of consideration. Frankly, that is an appalling road to go down and I hope that the Minister will say that the Government will not go down it.
Lord Morris of Aberavon (Lab)
My Lords, I fully support the noble Baroness, Lady Hayter, who has set out the case so well. In 1924, Arthur Ponsonby, then an Under-Secretary of State at the Foreign Office in a Labour Government presided over by one of my predecessors as Member for Aberavon, pledged that the Government would inform Parliament of all agreements, commitments and understandings that may in any way bind the nation.
The argument now is whether that commitment should include agreements that are not treaties, such as, in this case, a memorandum of understanding. I believe the general understanding of the reasons for the Ponsonby rule was that the knowledge of such issues should be made fully available to Parliament and that the public mind should be prepared for any action necessary. I am not particularly concerned with the minutiae of the argument about the extent of the rule; I am concerned about the substantial lacuna in parliamentary scrutiny in respect of significant MoUs.
Our committee reported that it was unacceptable that the Government should be able to use the prerogative to agree important arrangements with other states that have serious human rights implications without the scrutiny of Parliament. It is timely for the use of prerogative powers, with their origins in the mists of time, to be examined. The late Lord Mayhew and I, as former law officers, persuaded a parliamentary Select Committee that the use of the prerogative to authorise going to war was outdated. We should look at this again. Hardly any issue is more important to an individual seeking asylum than transfer to a foreign country without his agreement and, in this case, the scrutiny of Parliament.
I invite the Government to consider the development of policies in Spain and the USA which show that legislative scrutiny of non-binding agreements is not incompatible with the effective conduct of foreign affairs.
Baroness D'Souza (CB)
My Lords, there is much to desire in the MoU with Rwanda with regard to consistency, clarity and process. There will continue to be legal challenges. The wording of the MoU, together with various ministerial Statements in this and the other place, has revealed not only laughable errors in the Home Office decision-making process but has created confusion as to who is eligible for removal to Rwanda, what the criteria are and who makes the decisions.
Let me quote from some of these ministerial speeches and letters to parliamentarians:
“For every stage in the process, … our approach is to ensure that the needs and vulnerabilities of asylum seekers are identified and taken into consideration where appropriate. … Everyone considered for relocation will be screened and interviewed and have access to legal advice.”—[Official Report, 20/12/22; cols. 1070-71.]
“nobody will be removed if it is unsafe or inappropriate for them.”— [Official Report, Commons, 19/4/22; cols. 46.]
So the Home Office will apparently consider each individual’s particular circumstances before deporting to Rwanda. The Minister then says, unequivocally, that asylum claims will be determined in Rwanda. I ask the Minister: which is right? If it is the former, can the Minister enlighten the House on the time and resources required to assess each individual case in light of the legal advice that they are guaranteed? And how precisely would this lengthy process be an effective deterrent to the people traffickers?
Lord Sahota (Lab)
My Lords, in October 2022 your Lordships’ Committee on International Agreements was quite right to express concern about this memorandum. It lacks access to justice for asylum seekers, it lacks parliamentary scrutiny, and it is not legally binding.
When I learned about this, like many other people, I was filled with disbelief. Have our Government done their due diligence on the human rights of Rwanda and looked at its history? Banishing people to another country is bad enough, but to Rwanda—which has an appalling human rights record—is another thing. I hear the High Court’s rulings on this, but close consideration must be given to the individual circumstances of each person. If the Government want to target the people smugglers and criminal gangs who profit from this enterprise, then they should spend all that money on that effort.
By associating ourselves with Rwanda on the human rights issues, we will lose credibility on the international stage; dictators and authoritarian regimes around the world will point this out to us when we criticise them for their human rights record. They will say that it is rich coming from us when we are in bed with Rwanda. I hope the Government will have second thoughts about this. Our country’s credibility and reputation are at stake here. We must tear this memorandum up.
The Earl of Sandwich (CB)
My Lords, it was a credit to the Conservative Party under David Cameron that they took up the cause of Rwanda—a country which had suffered the worst genocide the world had known since the last war. The return to political and economic stability under Paul Kagame, even at some cost, has been remarkable. However, I have to say, like others, that Rwanda has not been a showcase of democratic government and human rights either. The FCDO website is not very encouraging about it, and the Helen Bamber Foundation, a much-respected NGO, said:
“This is a shamefully cruel way to treat people who have come to the UK to seek protection, fleeing persecution or conflict.”
The key question today is whether the MoU is compatible with international law—if we accept that there is an MoU. The Government say it is consistent with the refugee convention and the ECHR. But UNHCR gave its own opinion back in April 2022 that it was
“firmly opposed to arrangements that seek to transfer refugees and asylum seekers to third countries in the absence of sufficient safeguards and standards.”
Having been on the IAC for three years, I realise that the procedures around parliamentary scrutiny can be labyrinthine. This debate challenges, once again, the Government’s decision to make policy on a subject of huge public interest by way of an MoU. In their response to the committee, the Government said the non-legally binding instruments were a sufficient framework for parliamentary scrutiny but that it only
“may be appropriate to draw parliament’s attention to NBIs that raise questions of public importance.”
These words are hardly encouraging. It gives rise to a suspicion—also touched on by the noble Lord, Lord Parekh—that, in the case of Rwanda, the Government are unwilling to share or review policies that may be controversial and prefer to hide them behind an MoU. Perhaps the Minister will confirm that this is true.
Meanwhile, I congratulate the noble Baroness on achieving this debate. I wish her well with the committee in future.
Lord Purvis of Tweed (LD)
My Lords, I also congratulate the noble Baroness.
The FCDO written policy on guidance on treaties is perfectly clear. It states,
“The key difference between MoUs and treaties is whether or not there is an intention to create legally binding obligations… There is no hybrid. … an MoU is not legally binding.”
The Minister on 20 December referred to this as an “agreement”. I hope he does not do that in his winding-up speech today because the FCDO policy is also very clear. It says:
“DO NOT USE … agreement/ undertaking”.
I hope the Minister can do me the courtesy today of replying to the questions I asked him on 20 December, when he did not give me the courtesy of answering them then. What is the legal basis in domestic law for the commitments in this arrangement that is being provided? What is the legal basis in domestic law of the data sharing?
Given that this is a private arrangement with a company in Rwanda with a centre that I visited last June, which is on an annual rolling contract that will have to be renewed in March—next month—what is the breakdown of the £20 million of taxpayers’ money that has already been spent on no persons being sent? What is the breakdown of the £120 million provided to the Rwandan Government on top of that? The very least the Minister can provide the House with—since the Government are not asking us to ratify this arrangement, not agreement—is to publish the contract for the receiving centre.
What are the processing times expected for those who will be sent to this centre? In December, the Minister said that the policy is that it could be for children and families. I say to the Minister very clearly that I saw no facilities for children and families in that centre. This is £140 million of taxpayers’ money, the purpose of which the Minister himself said is to remove an incentive. This is gross maladministration. The centre even has its own euphemism for it. The Minister can, at the very least, provide me with the answers today that he refused to give me in December.
Lord Ponsonby of Shulbrede (Lab)
My Lords, as we have heard from my noble and learned friend Lord Morris, it was in 1924 that the original Ponsonby rule was put in place; indeed, he was my great grandfather. The noble Lord, Lord Kerr, believes that elements of that are still in place, even though the Government believe the CRaG Act supersedes the Ponsonby rule. Nevertheless, the principles underlying the Ponsonby rule are still the principles that this House should aspire to in properly scrutinising international agreements, particularly when they are so controversial as the agreement we are currently discussing.
I thank my noble friend Lady Hayter for this Question and for her persistence. I trust that she will return to this matter in future debates and in the committee’s future work because the issue itself is not going to go away. I think all noble Lords who have spoken obviously believe that the Government have taken this route of action to avoid parliamentary scrutiny. I would like to have an in-principle defence of the approach the Government have taken because it seems to me that bypassing Parliament undermines Parliament itself and undermines the agreement which has been reached with the Rwandan Government.
My second point is about the agreement. There are a number of basic questions on the agreement’s merit—its cost, its viability, its lawfulness. We have heard that there is a backlog of 140,000 asylum seekers; we have heard the figure of £140 million or more being spent which so far has achieved nothing. It seems to me that the Minister has some serious questions to answer about the merits of the scheme itself, let alone the way the Government are seeking to put this in place. I hope that he can talk about both the principle and the practicalities of the memorandum of understanding that the Government have put in place. I also hope the Minister can reply to the question from the noble Lord, Lord Udny-Lister, about the possibility of a multitude of bilateral agreements for deportation and whether the Government see that as a way forward.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, I am grateful to the noble Baroness, Lady Hayter, for securing this debate. I must apologise that I will not be able to address all noble Lords’ contributions during this response. I am delighted to provide the clarity the noble Lord, Lord Ponsonby, rightly asked me to provide as to the reasons why a memorandum of understanding was chosen in this regard.
The proposal to relocate asylum seekers to Rwanda has been, and continues to be, the subject of considerable public debate. The number of people crossing the channel in small boats has increased exponentially, placing our asylum system under severe pressure as well as the extent to which services can be provided to those coming to our shores. Not only is every crossing attempt a potential tragedy, as we have seen far too often, but the people arriving via these small boats have travelled through and then left safe countries with fully functioning asylum systems.
Tackling the global migration crisis requires global solutions, and the United Kingdom’s ground-breaking partnership with Rwanda is an essential part of that approach. This policy will help to disrupt the business model of people smugglers, those gangs putting lives at risk using dangerous, unnecessary and illegal routes into the UK. The long-term strategic bilateral partnership that we intend to deliver through the migration and economic development partnership between the UK and Rwanda is built on the shared understanding that the current conventions for dealing with refugees and migration no longer work. I agree with my noble friend Lord Udny-Lister that bilateral agreements are also important, but we need new approaches at scale to ensure that immigration is orderly and controlled. Noble Lords will appreciate that there is an urgency and considerable public interest in deterring unnecessary, illegal and dangerous journeys to the UK.
I will now turn to the Question posed by the noble Baroness, Lady Hayter, on the decision to use a memorandum of understanding for the migration and economic development partnership. As indicated in the Government’s response to the International Agreements Committee’s report, the Government’s decision to use a memorandum of understanding—a non-legally binding instrument—has the benefit of allowing the detail of the partnership to be flexible. The technical details may be adjusted quickly if needed with the approval of both partners.
The UK and Rwanda have a well-established relationship. There is a significant history of our two Governments working together, as the noble Earl observed. Most importantly, the Rwandan Government have reason to know that the United Kingdom places the utmost importance on Rwanda’s compliance in good faith with the terms of the memorandum. The obligations placed on Rwanda under this partnership are laid out clearly in the memorandum, and they ensure that both countries have the same understanding of these obligations.
Indeed, in its judgment, the Divisional Court of the High Court at paragraph 65 found:
“The terms of the MOU and Notes Verbales are specific and detailed. The obligations that Rwanda has undertaken are clear. All, in one sense or another, concern Rwanda’s compliance with obligations it already accepts as a signatory to the Refugee Convention.”
I can therefore confirm to the House that we are confident that Rwanda will honour its commitments. This position was also considered by the High Court at paragraphs 70 to 71 of its judgment, where it stated that
“the conclusion that Rwanda will act in accordance with the terms of the MOU and the Note Verbales rests on HM Government’s experience of bilateral relations extending over almost 25 years and the specific experience of negotiating the MOU over a number of months in 2022”.
Furthermore, the court found that
“the Home Secretary did not act unlawfully when reaching the conclusion that the assurances provided Rwanda in the MOU and Notes Verbales could be relied on”.
I should also note that adopting a treaty, rather than using memoranda as suggested by the noble Baroness, would not necessarily have afforded individuals the right to raise disputes in the way some noble Lords have suggested.
While the Government cannot comment on ongoing legal proceedings, no court has ruled that this partnership is unlawful. In fact, the High Court, in the 19 December ruling, said that the arrangements entered into for the relocation of asylum seekers to Rwanda is consistent with the refugee convention, the European Convention on Human Rights and the statutory and other legal obligations on this Government.
I am therefore disappointed by the views expressed by the noble Lord, Lord Sahota, the noble Earl, Lord Sandwich, and others on the safety of Rwanda, which appear to be ill-informed and contrary to the High Court’s judgment. In paragraph 71, the court found that the Home Secretary’s assessment that
“Rwanda is a safe third country, was neither irrational, nor a breach of article 3 of the ECHR”.
The domestic legal framework that gives effect to removals under this partnership is backed by legislation which has already faced parliamentary scrutiny.
I welcome the court’s judgment that this policy is lawful, as we have maintained throughout. We will, of course, pay extremely close attention to the individual circumstances of those considered for relocation. Decisions will be taken on a case-by-case basis, and nobody will be relocated if it is unsafe or inappropriate for them.
The arrangement requires Rwanda to process claims in accordance with international standards, as I previously mentioned, and it ensures protection from inhumane and degrading treatment and from refoulement. We have assessed Rwanda to be a fundamentally safe and secure country, with respect for the rule of law and a strong track record of helping those in need. In paragraph 51 of its judgment, the High Court itself said that
“Rwanda has a significant history of providing asylum to refugees”.
This session concerned an important political arrangement underpinning our partnership. The Government carefully considered the report from the House’s committee which the noble Baroness chairs. As noted in our response to the report, we published the memorandum of understanding in full transparency in April last year, very shortly after it was concluded. The MoU was negotiated with utmost care and attention by both Governments.
It is not at all fair to suggest that His Majesty’s Government have avoided scrutiny. Ministers have engaged fully with Parliament regarding this arrangement, including via Oral Statements, Parliamentary Questions and written correspondence. Ministers and senior officials have made numerous appearances before committees, and we are here today discussing the issue. Of course, all of this is on top of the High Court’s very detailed consideration of this document.
The Government take the view that the constitutional convention known as the Ponsonby rule, as it existed and was practised, was in its entirety put on a statutory footing by the CRaG Act. We do not accept that there has ever been any convention whereby non-legally binding arrangements are routinely submitted to parliamentary scrutiny, and this is borne out by the consistent practice of successive Governments. Parliament did not consider disclosure of non-legally binding arrangements to be part of the Ponsonby rule when it looked to put the convention on to a statutory footing in the Constitutional Reform and Governance Act.
With that said, while we responded to the urgency and exceptional public interest in deterring these dangerous crossings to the United Kingdom, it is not at all right to say that this was rushed or that scrutiny was evaded. We have been clear that the memorandum of understanding between the UK and Rwanda is a non-legally binding instrument. Such instruments are common mechanisms for recording political commitments and arrangements between states and—as I have already said—allow for flexibility.
A decision on whether to use a treaty or non-legally binding instrument will depend on various factors. Ultimately, the decision will be based on whether there is a need for legal enforceability or whether a non-legally binding commitment would be appropriate. While we have never claimed that the terms of the memorandum are to be legally binding under international law, the arrangements we have put in place provide sufficient assurances to us—and indeed have satisfied the High Court—that the arrangement will be operated in line with international obligations and in a manner which ensures the welfare and safety of those people relocated under it. I am sure that the noble Baroness will be aware of the means by which the delivery of the scheme will be overseen and assessed against the assurances in the memorandum.
I particularly highlight the fact that a monitoring committee has been appointed, as was referred to during the debate, whose members are independent from both the Rwandan and United Kingdom Governments, and who will be able to look at every part of the relocation process and will independently assess all conditions. The monitoring committee will produce a summary report for publication yearly for all to see.
Lord Purvis of Tweed (LD)
The Minister has only a few moments left. This is the second time that a Front-Bencher has asked specific questions which the Minister has refused even to acknowledge. I regret that I am going to have to escalate this up through the usual channels. It is just not acceptable that the Minister at the Dispatch Box does not even acknowledge valid questions from a Front Bench.
Lord Murray of Blidworth (Con)
I think the noble Lord’s question related to the legal basis for the agreement in domestic law; I have addressed that in detail in the course of my speech to the House.
Lord Murray of Blidworth (Con)
Well, I am sure that we can discuss this on another occasion.
Baroness Hayter of Kentish Town (Lab)
Before the Minister sits down—I think we have six minutes—he said that the Government used an MoU rather than a treaty because it could be amended. Does he accept that the detail of treaties can also be amended? More importantly, on an MoU, surely that could still—by the choice of the Government—have been laid for 21 days to give parliamentary scrutiny. Parliament will not be able to scrutinise the committee referred to by the right reverend Prelate, but the MoU could have been laid for 21 days. Does the Minister accept those two things, that the treaty itself could be adapted and that an MoU could have been laid before Parliament?
Lord Murray of Blidworth (Con)
I thank the noble Baroness for those two questions. On the first point, no, to amend a treaty would be a more cumbersome process than the flexibility afforded by a memorandum of understanding. On the second point, it is clear that Parliament had considerable opportunities for scrutiny, as I have set out, and there was no want of scrutiny from the method adopted.
Lord Lansley (Con)
Can I press my noble friend on one point? Does he agree that the Government could have chosen to lay a memorandum of understanding under CRaG even if not required to do so, and that, as a result, it could have been debated in the House of Commons, which would have had a choice on whether to support the agreement or otherwise?
Lord Murray of Blidworth (Con)
I appreciate the hypothetical question that my noble friend asks. As I say, the issue was one for the Statements that were provided to the House of Commons, and it seems that there was no want of scrutiny. Therefore, I am afraid that I do not accept that contention.
Baroness Lister of Burtersett (Lab)
My Lords, the noble Lord said that he was not able to answer all the questions asked. Will he please write to noble Lords with the answers?
Lord Murray of Blidworth (Con)
Yes, certainly; we will have a look through them.