Asylum: UK-Rwanda Agreement
(3 months ago)
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Lord Goldsmith
That this House takes note of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda for the Provision of an Asylum Partnership Agreement to Strengthen Shared International Commitments on the Protection of Refugees and Migrants.
Relevant document: 4th Report from the International Agreements Committee (special attention drawn to the agreement)
Lord Goldsmith (Lab)
My Lords, there are two Motions in my name on the Order Paper, and I shall speak to both. The first ask the House to take note of the fourth report of the International Agreements Committee, which I have the honour to chair. The report addresses the UK-Rwanda asylum partnership agreement, known as the Rwanda treaty. The second Motion invites the House to agree with the committee’s unanimous conclusion that the Government should not ratify the treaty
“until the protections it provides have been fully implemented, since Parliament is being asked to make a judgement, based on the Agreement, about whether Rwanda is safe”.
Both Motions are tabled on behalf of the committee and not on behalf of the Labour Party.
The second Motion engages Section 20 of the Constitutional Reform and Governance Act 2010. I will explain the significance of this and comment briefly on the statutory framework under which the committee’s report was produced before turning to the substance of the issue. The mandate of the International Agreements Committee is to scrutinise treaties laid before Parliament which the Government propose to ratify. Section 20 of the Constitutional Reform and Governance Act, or CRaG, gives Parliament 21 sitting days to review a treaty. The main essentials of the process for parliamentary scrutiny of treaties have not changed for 100 years, since 1924, when Foreign Office Minister Sir Arthur Ponsonby made a commitment that the Government would lay all treaties before Parliament for 21 days before ratification. CRaG codified this practice in legislation but did not substantially alter it.
The International Agreements Committee has previously reported on a range of deficiencies in the CRaG scrutiny process. This is not the occasion to debate those in detail, but the committee’s current report does highlight that consideration of the Rwanda treaty brings into sharp focus the inadequacy of a 21-day scrutiny period for reviewing treaties of significant public interest and political importance. Our task in this case was made more difficult by government delays in publishing key information and providing responses to our inquiries.
Our consideration of the Rwanda treaty also highlights the limits on Parliament’s role in the scrutiny of treaties, which is weaker than in many other countries. If either or both Houses wish to express concerns about a treaty, Section 20 of CRaG provides that they must pass a resolution before the end of the 21-day period that the treaty should not be ratified. If the House of Commons passes a Section 20 Motion, the Government must lay a Statement and wait a further 21 days before they can proceed. That process can be repeated, which means that, in theory, ratification could be indefinitely delayed, so long as the Commons continues its objections. The Government, however, can override a Section 20 Motion passed by this House.
This is the first occasion since CRaG came into force in 2010 that either House has considered a Motion under Section 20 of CRaG, which perhaps illustrates the inadequacies of the current framework for treaty scrutiny in general and the specific concerns that the committee has about the way the Government have proceeded in relation to the Rwanda treaty—I will expand on this as I address the substance of the report.
The treaty was negotiated between the UK Government and the Government of Rwanda as a response to the judgment of the Supreme Court on 15 November 2023 that the Government’s policy of sending asylum seekers to Rwanda was unlawful. The Supreme Court found, relying heavily on evidence from the United Nations High Commissioner for Refugees, that there were deficiencies in Rwanda’s asylum system and evidence of refugees being sent on to unsafe countries—a practice known as refoulement—in breach of Rwanda’s international obligations. The Supreme Court did not doubt the good faith of the Government of Rwanda but found that the practical application of asylum and refugee law was inadequate. On this basis, the Supreme Court concluded that there was a risk of refoulement in relation to any asylum seeker sent by the UK to Rwanda.
The Rwanda treaty sits alongside the Safety of Rwanda (Asylum and Immigration) Bill, which will have its Second Reading in this House on 29 January. This debate is not about the Bill, but aspects of the Bill are relevant to our consideration of the treaty. In particular, Clause 2 of the Bill provides that:
“Every decision-maker must conclusively treat the Republic of Rwanda as a safe country”.
Clause 2 is an ouster clause and has the effect that the Bill’s declaration of the safety of Rwanda could not be subject to appeal or judicial review in any legal proceedings.
The Government’s case is that the new arrangements they have negotiated with Rwanda, which are now set out in a legally binding treaty that replaces the previous memorandum of understanding, change the factual position considered by the Supreme Court and thus allow Parliament to conclude definitively that Rwanda is safe. The Home Secretary’s foreword to the policy statement accompanying the Bill and the treaty published on 12 December referred to the treaties as containing,
“significant new protections in response to the Supreme Court’s conclusions”.
And went on to say:
“This work will enable Parliament to conclude that the Supreme Court’s judgment has been addressed and that Rwanda is safe for relocations under the Migration and Economic Development Partnership”.
The committee therefore considered that its job was to consider whether the protections in the treaty do indeed enable Parliament to conclude now that the Supreme Court judgment has been addressed and that Rwanda is, in fact, safe. The committee agreed that, on paper, the enhancement provided by the treaty undoubtedly improves the arrangements under the memorandum of understanding. First, the treaty includes an explicit obligation that no person sent to Rwanda will be removed to any other country, except back to the United Kingdom at its request. Secondly, a new system to process asylum claims will be established, with safeguards to ensure compliance with refugee law, including new institutional structures with international judges. Thirdly, the role of the independent monitoring committee is enhanced, with additional staff to support its functions. Fourthly, a binding mechanism to settle disputes between the parties is established. These are all important changes, and the committee acknowledges the efforts of both Governments to address the issues raised by the Supreme Court.
However, it is plain from the Government’s evidence to our inquiry, and from the background information in the Home Office policy statement, that much work needs to be done before the protections that the treaty envisages could be fully in effect. This includes not just the adoption of new laws, systems and processes but the recruitment and training of personnel.
All these legal and practical steps are set out in our report, but I will highlight just a few of the most important ones. The Home Office told our inquiry that it is still discussing with the Government of Rwanda key aspects of the new asylum processing system. The new Rwandan asylum law, which will underpin this important part of the treaty, will be adopted in the “coming months”, according to the Home Office policy statement. Additionally, the Home Office told us that the process for selecting the co-presidents of the appeal body is still being discussed between the UK and Rwanda. Only after that process has been agreed can the co-presidents be appointed. They, in turn, will need to identify and select the other international and Rwandan judges. The Home Office was unable to tell us how many international judges there would be in total, or how they would be allocated to individual appeals. It is clear that significantly more work is needed on this important aspect of the treaty.
The obligation not to remove asylum seekers to any other country, except if requested by the UK, is central to the Government’s contention that the treaty meets the concerns of the Supreme Court. The treaty provides an added assurance—although it could also be taken as a lack of confidence in compliance by Rwanda—in stating that the parties will co-operate to “agree an effective system” to ensure that refoulement does not take place. We asked the Home Office for further information about this but did not receive a clear answer on when this system would be in place or whether the measures would be published.
The Government also place heavy emphasis on enhanced monitoring arrangements, but, from information we received from the Home Office, it appears that the monitoring committee has yet to recruit its support team. This is important because the noble Lord, Lord Anderson of Ipswich, whom I see in his place, told us, based on his experience of reviewing similar monitoring processes in his previous role as Independent Reviewer of Terrorism Legislation, how resource-intensive effective monitoring is and how important it is to have people on the ground.
Another important new aspect of the monitoring arrangements provided for by the treaty is a process to allow asylum seekers or their representatives to submit confidential complaints, but this system has not yet been set up by the monitoring committee. It is also unclear whether the arrangements are to be subject to public scrutiny. In total, our report identifies at least 10 sets of issues in respect of which, on the basis of the Government’s evidence, significant additional legal and practical steps are needed in order to implement the protections the treaty is designed to provide.
The UNHCR published its assessment of the treaty last week. It also acknowledged that:
“Detailed, legally binding commitments set out in the treaty would, if enacted and fully implemented in practice, address some of the key deficiencies in the Rwandan asylum system identified by the Supreme Court”.
However, the UNHCR, in common with many witnesses to our inquiry, stressed that the changes in the treaty require sustained long-term efforts at capacity building which can only be assessed over time. The committee agreed with that assessment, which is why we concluded that the treaty is unlikely to change the position in Rwanda in the short to medium term.
On 19 December, when the Home Secretary came and gave evidence to us, he told us that he did not intend to “operationalise” the Rwanda relocation scheme until the Government are
“confident that the measures underpinning the treaty have been put in place, otherwise the treaty is not credible”.
The difficulty is that the Government have already presented a Bill to Parliament asking it to make a judgment that Rwanda is safe now. Yet, on the Home Secretary’s own evidence, it cannot be so, because the measures are not in place and have not been shown to be effective. The treaty is held up by the Government as the justification for the measures in the Bill, yet the treaty cannot at present provide a basis for Parliament to judge that Rwanda is safe while so many aspects of the treaty remain unimplemented and untested.
When the United Kingdom ratifies a treaty, the long-standing practice of government is to ensure that all necessary implementing measures are in place before the Government proceed to ratification. It is true that some of the required steps to implement the treaty need to be taken in Rwanda. However, it is clear from the information supplied to our inquiry that the Government are fully engaged with the Government of Rwanda in developing those implementing measures. The Government should therefore abide by their usual practice of satisfying Parliament that all measures are in place before ratifying. That is why the committee has recommended that ratification should not take place until certain conditions are met.
We consider that the Government should return to Parliament when they believe that the treaty is ready for implementation. They should then give Parliament a further opportunity for scrutiny of the treaty arrangements. Only at that point will Parliament be able to assess properly whether Rwanda is safe. The principle of the separation of powers provides a further reason for pausing. It would be constitutionally inappropriate for Parliament to seek through statute to overturn findings of fact by the Supreme Court; I underline findings of fact because that is what the Supreme Court did. It is therefore important for Parliament to be clear that the facts have indeed changed before making its assessment.
If the Government proceed to ratify the treaty immediately after the end of the CRaG scrutiny period, it could enter into force without being fully implemented, because the Government lose control of the timing of entering into force once it has been ratified. Yet, once the Bill is in force, the judgment that Rwanda is safe is a fait accompli, regardless of whether the treaty has been implemented or not.
Before I conclude, I thank all the witness who took the time and trouble to contribute evidence to our inquiry over Christmas and the new year. I thank all my colleagues on the International Agreements Committee, some of whom I am very happy to see in the Chamber, for their co-operation and support. I thank our officials and advisers for dealing with a substantial amount of material submitted in response to our call for evidence, including a very large amount of material submitted at a very late stage by the Home Office. Finally, I thank the Government for offering us such a prominent debate spot within the CRaG period.
The Section 20 Motion I have tabled in unusual—in fact, unprecedented. We are not saying that the treaty should never be ratified, but we are saying that Parliament should have the opportunity to scrutinise the treaty and its implementing measures in full before it makes a judgment about whether Rwanda is safe.
The Government propose in their Bill that the courts will be precluded from considering whether the Supreme Court’s concerns have been addressed, so it is now for Parliament alone to make that assessment. It is the unanimous view of the International Agreements Committee that we need first to see the protections fully implemented and working. For that reason, the committee concluded in its report that the treaty should not be ratified until the protections that it provides have been fully implemented. I beg to move.
Lord Howell of Guildford (Con)
My Lords, the noble and learned Lord, Lord Goldsmith, presided with very great skill over this report on an extremely difficult set of issues, as he has described in the last few minutes.
Before I make an additional comment, I will observe that we are concerned with a small but dangerous and damaging part of a much wider picture. When I say “small”, I have in mind one estimate that suggests that there are about 60 million people in Africa, the Middle East and central Asia who, even now in the present situation, wake up each morning considering migrating, mostly heading for Europe. Indeed, there between 5 million and 6 million migrants already in Turkey—that is just a start.
We have to lay beside that the fact that 90% of the world’s territorial surface has no inhabitants at all. So what I am saying is that there is something badly out of balance with this entire scene and the adjustment of handling migration and refugee problems in the totally changed conditions of the 21st century. Nevertheless, the urgent problem remains for us of how to halt the appalling trade and tragedy of illegal immigrants coming by extremely dangerous means into the United Kingdom.
As the noble and learned Lord, Lord Goldsmith, made clear, the report is not about the safety of Rwanda Bill, which comes before the House next week—and should, in my view, be agreed and passed as quickly as possible. But the report does include useful advice on signing the subsequent treaty, which is worth taking note of—I hope that the Government will take note—and which will assist in ensuring that the whole process works effectively and serves its various purposes.
Also, I am glad that the report is free of the rather patronising tone one hears in some comments about Rwanda and its judiciary and legal systems, as though they could not possibly have high enough standards. I can understand the Rwandan Government’s exasperation, and that of senior legal figures there, at the implication that their system somehow has to be reinforced, made over and renewed to bring it up to scratch so that it can be called “safe”. Despite a very dark past, Africa has changed radically—particularly Rwanda, which has changed most rapidly of all in the last few decades. We need to keep that in mind when making our judgments. People also forget that Rwanda is not only evolving into a modern state but is a signed-up member of the Commonwealth and its charter, which insists on full respect for the rule of law and human rights. So I hope that the House will find the first Motion useful.
The second Motion also rightly urges that the normal CRaG—Constitutional Reform and Governance Act—processes, for which the parliamentary scrutiny period appears to expire next week on 31 January, should be properly observed by Parliament. Surely that would be wise; I hope that it is not in question. That raises much broader questions, which the noble and learned Lord touched on, about the severe defects in our entire committee system for holding the Executive to account, despite all the excellent and noble work that the clerks undertake. Every other Parliament I know that seeks to run a democracy—I have visited very many, as have many other noble Lords—has a far stronger committee scrutiny power system for treaties and indeed for everything else than we have here. We must face the fact that we are hopelessly behind in the digital age in this area of scrutiny—but I accept that that is a debate for another day.
The last phrase in the second Motion about Parliament having to make a judgment—to which the noble and learned Lord also referred—about whether Rwanda and its legal system are “safe” is the bit that worries me most, and which I realise runs through the whole debate. I have to ask colleagues: what does “safe” mean? It is an entirely subjective concept and always will be. Is our own judicial system safe? I do not know. I am not sure that all our postmasters would agree about the safety of our judicial system now. No amount of elaborate monitoring, training, appeals body advisers and all the rest is going to convince those who do not want to be convinced that Rwanda is safe.
I hope that the first Take Note Motion put forward so eloquently by the noble and learned Lord will be agreed completely and that the second one is seen simply as a useful agenda, since I see the debate about safety never being conclusive except through practice and experience. We will have to wait, put it into place and see how it goes.
My final hope—probably unattainable—is that both major political parties will support this project with the basic unity and balance which is what the public long for from their politicians and media, in combination with an internationally collective all-out attack on the revolting smuggler parasites, thereby saving the lives of many sad and frightened people. This in turn would decisively assist thousands of other genuine asylum seekers and refugees who are fleeing for their lives from terror and oppression and who have arrived here by legal means in receiving the swift and sympathetic treatment that is in line with our nation’s traditional instincts. It will also give us a breathing space to work out together and with all our neighbours and allies how on earth best to cope with the vast coming wave of migration, which no national Government alone can begin to handle—but perhaps that is too much to hope for right now.
Baroness Chakrabarti (Lab)
My Lords, it is an enormous pleasure to follow the two noble Lords, and in particular my noble and learned friend. I congratulate not just him on his remarks but the whole International Agreements Committee, a cross-party committee, on, among other things, the succinctness and clarity of this report, which I hope we will all take as a model for the vital work that the committees of your Lordships’ House do. That clarity and succinctness are so important to expressing the message, and I think we have heard it delivered with enormous precision. I shall try, therefore, not to be repetitive. There are many noble Lords to follow in this debate.
I have a few additional comments, if I may, on the treaty. It is light on numbers. The actual number of asylum seekers who would be sent—transported, even—to Rwanda under this scheme is not there. These numbers may exist in some private communications between the two states, but they are not in the treaty. What is in the treaty is the suggestion that it would be for the Republic of Rwanda to make a case-by-case judgment on accepting each individual asylum seeker. That is very interesting because, among other things, it would mean that the Republic of Rwanda would get to do a case-by-case assessment that it is now impossible to do through any Minister, official or court here in the UK. I find that strange.
I will also comment on the question of whoever comes back under this treaty: whoever comes back to the United Kingdom from Rwanda. There is a lack of clarity here, but I understand that Ministers in the other place commented that those who commit crime having been sent to Rwanda would be sent back to the United Kingdom—which again smacks of no little irony, because it would mean that criminals could come back to the United Kingdom but not recognised convention refugees under the scheme. That is a slightly odd view of deterrence, in my view, which we repeatedly hear is the Government’s ambition here. What kind of deterrence is that? Some might even suggest that there is the potential perverse incentive to commit crime if you want to end up in the United Kingdom.
I am of course conscious of the Prime Minister’s recent remarks in the special press conference that he held last week for the benefit of your Lordships. We are always available for anyone who wants to come and have a chat but, if they want to do it by press conference, so much the better. Much was said about “the will of the people”, a phrase that has gained so much currency in the polarised and difficult recent years in our country. A lot is said about the will of the people as if it is something that a charismatic—or less charismatic—leader has a direct telephone line to. Perhaps it is not even a telephone any more; perhaps it is telepathic. I suggest that, in a constitutional democracy, as we have heard outlined, instead of there being this sort of telepathic connection between any individual leader and the will of the people, it is Parliament that reflects the will of the people to the best of its ability and represents people in this country while championing the rule of law.
Of course, as we have heard from my noble and learned friend, in the safety of Rwanda Bill, it is suggested that Parliament is now of the view that Rwanda is safe. So everything hinges on Parliament, with the courts having been ousted. It seems to me that, if Parliament is to step up to that awesome responsibility—it is even more awesome than usual—with the courts having been ousted from their usual fact-finding role in relation to the anxious scrutiny of individual refugees’ cases and fundamental rights, it had better be pretty sure that Rwanda is safe. The noble Lord, Lord Howell, questioned the concept of safety—that is, what is and what is not a safe country—but I remind him that even the Government have used this formulation because Clause 1 clearly states that the Bill
“gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country”.
Difficult or otherwise, that concept is a recognised concept of international law.
This is the case not just in relation to the refugee convention. I remind noble Lords that many of us and many international jurists now believe that non-refoulement is so vital to the international rules-based order that it has become a principle of customary international law, binding even countries that do not recognise the convention. That is how important these concepts of safety and non-refoulement are. Like it or not, whether or not it is difficult to debate, safety is in the Bill and it is for Parliament to be very sure before deeming these new facts.
That brings me to another part of the Prime Minister’s rhetoric. We had the sabre-rattling about the unelected House of Lords having to do the right thing but another part of his address was less strident, if I can put it like that. He said that
“we have addressed the Supreme Court’s concerns”.
That was the softer side—the good cop next to the bad cop. If Parliament is to address the Supreme Court’s concerns, my noble and learned friend and his committee must be listened to because, with all due respect to our Commonwealth partner in the Republic of Rwanda, everything that they say is triggered not by what we say or deem with the flick of a pen but by the legitimate and totally noble aspiration that Rwanda will become safer—and even Britain too; perhaps we will all become safer. It is that greater safety in future that our own United Kingdom Supreme Court—not a foreign court, let alone an international one—called for and which my noble and learned friend and his committee are suggesting we should test. His comments on the contradiction between current safety and the Home Office’s evidence to his committee were perhaps the most devastating part of his argument.
Before we hear all the lectures about unelected second Houses, et cetera, I think that your Lordships have a part to play on matters of the rule of law—especially in a country with an unwritten constitution and a Human Rights Act or modern Bill of Rights that is not entrenched and where, even the highest court in the land, our Supreme Court, does not have the strike-down powers that other democracies reserve for their constitutional or highest courts. In such a system, noble Lords are entitled to be a little more muscular than usual on matters such as this that were not in anyone’s manifesto; that risk being contrary to the domestic rule of law, including by ousting the jurisdiction of the courts or changing the reality that was found by the Supreme Court on 15 November; that risk breaching international law, as found not by a foreign or even international court but by the highest court in our land; and that risk breaching human rights that were baked in to the hard-won and precious Good Friday agreement—all this in what may be the last days of the Government, when the temptations to blow dog whistles and to be destructive to consensus and the rule of law are all too great.
For those reasons, I hope that your Lordships approve my noble and learned friend’s Motions.
Lord Purvis of Tweed (LD)
My Lords, I am happy to follow the noble Baroness. I am grateful for the committee’s work, especially since the Commons is not debating the treaty. These Benches agree with the conclusions of the unanimous cross-party report and will support the Motions. I am also grateful to the Minister for his comprehensive reply and fulsome response to a letter that I wrote to the Foreign Secretary in December.
Some outside the House may say that, over the coming weeks, we will be approaching our work in a constitutionally unusual way. The Government are insistent that we are constituted in the way that we are with the powers that we possess, but that we should not use them—in some form of appeal to the law to make us good at scrutiny, but not yet. We will do our job and we will scrutinise properly, and on the treaty too.
The treaty builds on the MoU, in certain areas with clarity, I accept, but in most other areas with assertion and optimism. Together with the Bill, the Government respond to the Supreme Court ruling not by addressing its substantive points but by setting them aside and presenting Parliament with alternative facts.
These Benches oppose the treaty and the Bill, which place the United Kingdom at material risk of breaching our international law commitments and undermining the rule of law by ousting the jurisdiction of the courts. They will lead to further substantial costs to the taxpayer, fail to provide safe and legal routes for refugees, and fail to include measures to tackle people-smuggling gangs.
The House will recall that, on 13 April 2022, at the start of all this, the Home Office Permanent Secretary said that there was insufficient evidence to back up the Government’s assertion that the agreement with Rwanda would provide value for money, so he sought and received a ministerial direction. Some £120 million had been spent. It is utterly unacceptable that, after repeated questions on funding from me and others in this Chamber, in 2022 and 2023, only in December last year was it disclosed that a further £120 million was committed at that time—secretly by Ministers, with no disclosure.
When I visited the reception centre in Kigali in the summer of 2022, I was told that this was an annualised rolling contract, renewable in March each year. So can the Minister confirm that there will be another £120 million committed for next year, over and above the £50 million the Home Office has indicated for the coming year—and will this also be kept secret? Is this being scored against official development assistance? Why is it not being reported on a project basis in a transparent way?
Incredibly, the Home Office now says that part of the £290 million is a credit line to the Rwanda Government—not for the purpose of the treaty, but a credit line. For what, precisely, and to whom? Who are the beneficiaries?
I can inform the House today that, on top of the £290 million, the Government quietly issued a tender last March for a £78 million contract for:
“Collection, transportation, and escorting individuals overseas through an MEDP”.
Given that the only partnership the UK is seeking to agree is with Rwanda, this is now £368 million willing to be committed. Can the Minister be clear what the projection costs are for 2025 and 2026, so that we have transparency.
These Benches want an immigration system that is efficient and fair, allows for regulated movement of people for our economy and takes into consideration need and capacity. We want a system that is not gamed, either from those within the UK or by organised crime abroad, but is one where we reject the pernicious and deliberate conflation of economic migration and those seeking asylum from political and personal persecution. That conflation meant that the previous Home Secretary and the Minister in this House repeated the untruth that
“there are 100 million people who could qualify for our protection, and they are coming here”.
Well, there are not, and they are not—and the Lords Minister stopped repeating this trope only after I cited the condemnation of the UK Statistics Authority, which formally asked Ministers not to repeat it.
The Home Office is a serial offender. Last week, the head of the UK Statistics Authority wrote to my colleague Alistair Carmichael MP about the Prime Minister’s wholly misleading statement on 2 January in which he said he had got rid of the backlog of asylum decisions by the end of 2023. It was misleading because the Home Office ignored 5,000 so-called “hard cases”, as it defines them. In a withering reply, Sir Robert Chote said that it was
“not surprising that the Government’s claim has been greeted with scepticism and that some people may feel misled”.
Furthermore, it should be noted the Home Office went full Kafka last week in sending us supporting evidence for its Bill. That evidence included this treaty, which it negotiated itself. And the justification for the necessity of this treaty, the Government say, is their own Bill.
Part of the pack is an updated country note for Rwanda, which updates one published just last spring. The one with barely dry ink was slightly inconvenient as it said a little too much about Rwanda’s human rights record and problems in processing asylum. Now, the language on human rights has been eased, massaged and sanitised. I emailed the independent inspectorate tasked with reviewing the country note and was told it had not yet concluded a review of the previous one to verify it. The Government, so eager to change the conclusions, did not even wait for the evidence from their own independent inspection body. All these aspects get to the central part of the issue and are why we must verify the treaty’s assertions before they are brought into force.
The Supreme Court’s ruling was clear. In paragraph 104, it says:
“The matters which we have discussed are evidence of a culture within Rwanda of, at best, inadequate understanding of Rwanda’s obligations under the Refugee Convention”.
As the noble and learned Lord, Lord Goldsmith, said, the UNHCR position on Rwanda’s insufficient processes, the UK MoU and now the treaty and Bill are also clear—and it is responsible for interpreting the convention. But the Government have sought to undermine the UNHCR; on 24 May last year, the Minister, the noble Lord, Lord Murray, who is in his place, told the House:
“The UNHCR is clearly a UN body; it is not charged with the interpretation of the refugee convention”.—[Official Report, 24/5/23; col. 968.]
Paragraph 65 of the Supreme Court ruling says:
“The first relevant factor is the status and role of UNHCR. It is entrusted by the United Nations General Assembly with supervision of the interpretation and application of the Refugee Convention”.
There can be no stronger rebuttal of the Government than that.
The Supreme Court also stated:
“It is also apparent from the evidence that significant changes need to be made to Rwanda’s asylum procedures, as they operate in practice, before there can be confidence that it will deal with asylum seekers sent to it by the United Kingdom in accordance with the principle of non-refoulement. The necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring”.
I asked the Government, with regard to their treaty commitment on refoulement, when the proposed mechanisms would be ready. The Minister replied to me, and in his response said:
“This mechanism is in development and will be in place once the partnership is operational”.
“In development”, and a process that may be extended with unlimited extensions. Does
“will be in place once … operational”
mean that they will need to be in place before it becomes operational, or that they will be put in place after the treaty is operational? It is unclear, and the Minister needs to be clear.
Equally opaque is the appeals process, which is fundamental to the court’s ruling. This is covered in Annexe B in the treaty. Given that these need to be in place in advance of the agreement coming into force, when will they be operational? I asked for a planned date. The reply with regard to the judges appointed was:
“The precise number of judges (and precise mix of nationalities) is being considered by the UK and Rwandan Governments … The process for selecting the co-presidents is being developed by the UK and Rwandan Governments and we will set this out in due course”.
We see “in due course” again, and “is being considered”, and “is being developed”. I asked the Government about the training of the judges, which the treaty says will have to be in place, and when that would be complete. Again, it is “being discussed”.
Article 14 also commits to Rwandan security service officers, which they term “liaison officers”, being part of the UK asylum process,
“including the screening of asylum seekers”.
This is quite extraordinary, given that the UK has provided asylum to six Rwandans after the Government had stated that Rwanda itself was a safe country. And there is no treaty restriction on the limits of the access to the operational processes of the Rwandan security services in screening UK asylum applications. Given that I was monitored and spied on after meeting an opposition leader in Kigali, I say to the Minister with great seriousness that this section needs very careful consideration.
Finally, Article 19 covers the resettling of asylum seekers currently in Rwanda to the UK, which the noble Baroness referenced. The Minister replied to me, saying that the UK was now committed to receiving those asylum seekers from Rwanda who are the most vulnerable. If Rwanda cannot accommodate vulnerable asylum seekers in Rwanda, why are the Government proposing to send vulnerable asylum seekers to Rwanda? I also asked how many there were. The Government said:
“As the partnership is not yet operational, we have no figure or specific information to provide to you as to the number of non-Rwandan refugees who may be resettled in the UK or their circumstances. We expect this number to be very small”.
The Minister’s response to me sought to be reassuring. He said:
“This is not a 1:1 agreement”.
I think most people will be reassured by that—but if it is not one for one, what is the figure and when will we know? Is it capped?
The Government cannot legislate new facts that are more politically palatable; they cannot mislead by deliberately misstating data; they cannot release new reports that sanitise ones that themselves have just been released; they cannot expect us to ratify a treaty when its essential elements remain unclear, with no details of timeframe or even of its commencement. They cannot do these things and expect us to turn away or to say, as some might, “Something must be done; this is something, so we must do this”—or, as the Foreign Secretary told me last week, on the lack of any of the promised new safe and legal routes, we just have to do it because we have to think out of the box. The Supreme Court was pretty clear in paragraph 104 of the ruling that when it comes to safety, thinking in the legal box is a practical necessity. The treaty does not in itself create a new reality, and therefore there are too many outstanding questions for us to assent to its ratification now.
Lord Kerr of Kinlochard (CB)
My Lords, it is a privilege to take part in this debate and I am very grateful to the Government for allowing us to have it within the CRaG period. It was also a privilege to be a member of the International Agreements Committee. Thanks to our excellent chairmanship and the wonderful work done by our staff, we were able to complete this report within the CRaG period despite the Christmas Recess.
I used to work in international relations and was until recently a trustee of the Refugee Council, so I cannot debate this treaty without recording my profound objection to an arrangement that is incompatible with our responsibilities under the 1951 refugee convention, its 1967 protocol and, of course, the European Convention on Human Rights. But I acknowledge that that is more for next week’s debate than today’s. My concern is primarily with the policy and the Bill that we will be looking at next week, not the treaty, which is intended to salvage the policy from its Supreme Court shipwreck.
On the policy, I will make just one point. I simply remind the House yet again that there is no precedent for the way it dishonours our convention commitments. The Government keep referring to what the Australians did in 2012, but that was different: the asylum seekers they diverted to Papua New Guinea were not handed over to the Papua New Guinea authorities. Australian officials went and heard in Papua New Guinea their claims for admission to Australia. Like the arrangement the Italians have been considering with Albania, this was offshoring; what we are talking about is offloading. Those we offload to Rwanda are never to get a hearing for their claim to asylum in this country. We intend to wash our hands of them and declare them inadmissible: Rwanda’s responsibility, not ours. This is unprecedented and unconscionable.
On the treaty itself, I have only three points to make. First, as a member of the International Agreements Committee, I of course support the report we unanimously agreed. It follows the scope and logic of the Supreme Court’s reasoning. As the noble and learned Lord, Lord Goldsmith, explained, in considering whether Rwanda would be safe for those sent there, it focuses on the court’s assessment of the risk of refoulement—enforced return to the country they first fled. I would have wished to draw the canvas a little broader, looking beyond the procedural reforms that Rwanda has apparently agreed to make and trying to judge how safe for refugees wider Rwandan society actually is. Without looking back to the genocide 30 years ago, when more than half a million in Rwanda lost their lives, I might have noted, as the Supreme Court did, that only three years ago our Government were criticising the Rwanda Government in the UN Human Rights Council for
“extrajudicial killings, deaths in custody, enforced disappearances and torture”.
I might have asked whether it is Rwanda that has changed or whether we have just found it convenient to change our tune for domestic political reasons. I might have picked up the State Department’s damning country report two years ago on Rwanda’s human rights record. I would certainly have wished to note Rwanda’s 100% rejection rate for asylum claims there by applicants from Afghanistan or Syria, according to UNHCR, and contrasted that with our 99% acceptance rate, according to the Home Office, for people from those two tragic countries who manage to lodge their claims here. I might have asked what it says about the safety of Rwanda that we are still accepting claims from Rwandan citizens for asylum in this country, as the noble Lord, Lord Purvis, pointed out. Allowing them refugee status here means that we have determined through our processes that they have a real and well-founded fear of persecution back home.
All these issues are relevant, although they are not in the IAC report, but I in no way resile from the report. We agreed it unanimously, and we all acknowledged the efforts the two Governments have made to address the issues raised by the Supreme Court. But—this is my second point—the committee was clear that resolving these issues will take time to assess whether the 10 steps that the Rwanda Government have agreed to take, listed in paragraph 45 of the report, have been taken, are working and are proving sufficient to set at rest the concerns raised by the Supreme Court. None of the 10 steps has yet been taken. There is no new Rwanda asylum law, first instance body or appeals court, no judges have been appointed and no training has been done. It will all take time.
I believe that if the new arrangements set out in the treaty and its annexes are implemented and bed down, the situation for asylum seekers in Rwanda will genuinely improve, but clearly the Government themselves are not confident that these improvements will be sufficient to set Supreme Court minds at rest. If they thought the treaty would crack the problem, why would they now be legislating to prohibit our domestic courts independently assessing whether it has cracked the problem? Why a belt, if the braces are not broken?
Thirdly, Article 10(3) of the treaty states that no one we have transported to Rwanda can be sent on to a third country, whether or not they have asked for asylum in Rwanda and whether or not asylum in Rwanda has been granted. The only place they can be sent to is back here, if we decide we want them back. On the face of it, that is a reassuring fail-safe if the new procedures prove inadequate to prevent removal to a third country. Actually, it is not—because, as the report points out at paragraph 37, Article 10(3) goes on to lay an obligation on us and Rwanda
“to agree an effective system”
to ensure that removals do not in practice occur and to check on where the refugee in question now is. Hang on, that is the clock striking 13 times, casting doubt on all that has happened before. It shows the Rwanda Government acknowledging in the treaty that, despite all the assurances in the treaty, it is possible that refugees will in practice be sent back to the countries from which they originally fled—and well might the Rwandans admit that possibility, because that is exactly what happened with their arrangement with Israel, causing the Israelis to break it off.
So we and they are to agree an effective system to ensure that that does not happen again; but we have not done so, and the task will not be easy given Rwandan geography and society. It is one of the unfulfilled promises listed in paragraph 45 of the report. In the absence of an effective system, up and running and proving effective, Article 10(3) cannot be even minimally reassuring to Parliament or, I would imagine, to the Supreme Court.
In conclusion, the considerations of international law and national reputation, which I mentioned at the outset, convince me that it would not be right to ratify this treaty at any time; and arguments from history suggest that it would be very reckless to do so any time soon. But these are my personal views. The IAC read its remit rather narrowly. What we did was consider whether the treaty can be said now, today, to meet the Supreme Court’s concerns. Our unanimous answer—I repeat, our unanimous answer—based on the overwhelming weight of the evidence that we received, was no: not today, not yet. Our unanimous recommendation is to delay ratification until the outstanding tasks have been carried out and the new systems proven in practice. So I support both Motions in the name of the noble and learned Lord, Lord Goldsmith.
Lord Sandhurst (Con)
My Lords, this treaty with the Republic of Rwanda underlies the safety of Rwanda Bill. If were not ratified by Parliament, the Bill would lose its foundation stone; but today, as I hope Members understand, this House cannot by its own resolution block the ratification process. Only a resolution passed in the other place can do that.
I have read with care the committee’s report. It sends an important message to the Government, but—and this is important—whatever it says about the arrangements in Rwanda going forward and its anxieties about whether they will be effective, it does not complain about the terms of the treaty. I stress that. The treaty, as this careful report notes, puts into legally binding form the arrangements previously set out in the 2022 memorandum of understanding, with enhancements, which, the report notes, if effective—I emphasise the word “effective”—will provide important safeguards for persons transferred to Rwanda. That is what the report says. Of course, we shall know whether that is so only if and when the Bill becomes law and the process begins.
To adopt what my noble friend Lord Howell has said, this report provides a useful agenda for the Government—and, indeed, for all of us when we debate the Bill. The report acknowledges that the treaty will improve the protections previously set out in that earlier memorandum. It identifies practical steps that need to be taken before the protections could be deemed operational, and such that they might make a difference to the assessment reached by the Supreme Court.
Like my noble friend Lord Howell, I hope that the Government will read this report with care and not just pay lip service to it. The report argues that evidence is also needed that the arrangements have been effective in practice. One can see that that evidence will be available only if the process is embarked upon and after it has been in practice; that is, if it has taken place.
The authors of the report, members of this distinguished committee, are doubtful that the treaty would change the position in Rwanda in the short to medium term. That will arise only if this treaty is in effect and the arrangements have been tested. Clearly, when we debate the Bill, we will have to see what reassurances we receive from the Government. On that basis, the authors recommend that the treaty not be ratified until Parliament is satisfied that the protections have been fully implemented.
It is worth looking again at Article 3(1) and (2) of the treaty:
“The Parties agree that the obligations in this Agreement shall be met in respect of all Relocated Individuals, regardless of their nationality, and without discrimination”.
That is the core agreement. It continues:
“The Parties agree to take all steps that are necessary or appropriate to ensure that their obligations can both in practice be complied with and are in fact complied with”.
That is the obligation on the Rwanda Government and on our Government. It continues:
“Those steps shall include continuing discussions, support”—
that is a matter that the committee was concerned about—
“and the fullest cooperation between the Parties with a view to maintaining and enhancing their practical ability to do so. Both Parties recognise the importance to that end of the monitoring arrangements set out in this Agreement, and the taking of all reasonable steps to ensure that that monitoring is as effective as possible”.
The committee none the less recommends that the treaty is not ratified, as have several speakers today, until Parliament is satisfied that the protections provided have been fully implemented. However, if it is not ratified there will be no Bill. That will end the process. The time for advancing those arguments is when we debate the detail of the Bill and ask: are we confident that it is right to have a second go?
I suggest that the report does not identify anything objectionable or contrary to principle in the treaty itself. The report’s concern is that the treaty obligations imposed may not be adhered to by the Republic of Rwanda when and if the Bill is passed and the migrants are sent to that country for processing. I remind this House that, as an earlier speaker said, the Supreme Court did not doubt the good faith of the Government of Rwanda. So the true question today is whether Parliament, when it debates the Bill, should have confidence that the aspirations on which it is founded are sound. Will the aspirations contained in the treaty be fulfilled? That is a judgment to be made then by Parliament and ultimately by Members of the other place as the elected representatives.
The second resolution therefore puts the cart before the horse, although obviously I have no problem with the first Motion. I suggest that the treaty itself is entirely reasonable. It contains clear obligations on both parties. The points made in the report can be given effect to either by amendment to the Bill or ultimately by not passing the Bill in its current form. I am not urging either of those courses at this stage, but that is what is open to Parliament.
It is in that debate that the proper forum will arise. First, Parliament is entitled to proceed on the basis that Rwanda now will act in accordance with its obligations under Article 10, which bind Rwanda in both international law and its own domestic law not to remove persons except to the United Kingdom. Secondly, if there is structural failure—even passing imperfections arise in practice—we can be confident that the matter will be taken up in Parliament and that Ministers, particularly in the other place, will be given a hard time. They will be pressured to act and there will be action. The Rwandan Government have made it clear that they see compliance with international law as paramount—not least, as we know, because they wish to replicate their United Kingdom deal with other countries.
In the Bill, as we have heard, Clause 2 will impose an obligation to treat the Republic of Rwanda as a safe country. That is something this House can debate when the Bill comes before it. It will have the committee’s report. If this House is satisfied that the country is unsafe, no doubt it will say so. That may be because, for example, no judges have been appointed; it might be for any number of reasons, but we can address Clause 2 then. But that does not go to the validity or the value of this treaty.
Today, I respectfully submit to this House and to those who have drawn up this very careful report, is not the place to oppose ratification and certainly not for the reasons advanced. If the House divides, I shall of course support the first Motion to Take Note, but I shall vote against the second Motion.
Lord Anderson of Ipswich (CB)
My Lords, the creation of our International Agreements Committee is a rare constitutional highlight of the past five years. I congratulate it on the scrutiny that it provides in the context of a statutory framework that leaves much to be desired and on the decision that it took in May of last year to focus particularly on treaties which are novel or have significant implications for politics or public policy, human rights or expenditure. The UK-Rwanda treaty might be thought to qualify on all those grounds. We can be grateful for the committee’s thorough and perceptive report, and for the opportunity to debate it at a stage when the debate can still be useful.
I also congratulate the British and Rwandan Governments on putting their MoU into the form of a treaty, as the committee recommended, and on starting to address some of the defects identified by the Supreme Court. However, and without doubting the good faith of either Government, it appears that as the Supreme Court anticipated, those defects will not be fully addressed in the short term. The UNHCR, from its position on the ground, spoke last week of the need for
“sustained, long term efforts, the results of which may only be assessed over time”.
That chimes with my experience when reporting, some years ago, on the analogous policy of deportation with assurances. The object of the policy was to enable non-British terrorist suspects to be deported to their countries of origin, even when, without specific guarantees, those countries could not be considered safe. Guarantees were negotiated by way of treaty, MoU or exchange of letters with six countries in the Middle East and north Africa. I travelled to Jordan and Algeria in 2014 to see how they were being implemented on the ground. My conclusion was that, contrary to the views of some lawyers and UN rapporteurs, but consistent with the view of the European Court of Human Rights, such arrangements can, with the right partner, be delivered, at least in the national security context, both effectively and compatibly with international law. Indeed, the mutual legal assistance treaty with Jordan, negotiated by James Brokenshire and Theresa May, was successful in meeting the conditions laid down by the courts for securing the departure of the dangerous extremist Abu Qatada for trial in Jordan. However, to negotiate and, in particular, to implement such an arrangement, particularly a broad-ranging one, requires what my co-author Professor Clive Walker and I described as “the most laborious care”. In the oral evidence that I was invited to give to the committee, I detailed some of the practical obstacles to independent monitoring, even in Jordan where there was a strong political will to make the arrangement work.
I also recall that when I visited Algeria in 2014, the British embassy did not know the whereabouts of any of the nine men whom we had deported there under that policy. Perhaps that is not so surprising, when even in this country it is possible to lose track of some 5,600 asylum claimants whose claims were withdrawn in the year to September 2023. But it is a concerning precedent when one is looking at the risks in Rwanda, including, of course, the risks of refoulement.
The committee has looked at the evidence before it including, heroically, the almost 600 pages of evidence published by the Government on 11 January. It is not satisfied; as the noble and learned Lord, Lord Goldsmith, has said, it has identified 10 further legal and practical steps that would be required to meet the concerns of the Supreme Court, which it does not anticipate will be met in the short to medium term. These include such vital elements as the new Rwandan asylum law and the implementation of arrangements for monitoring and judicial consideration. The noble Lords, Lord Purvis of Tweed and Lord Kerr, have added to the committee’s concerns in their powerful speeches.
The committee proposes that ratification should be delayed until Parliament can be properly satisfied that the protections written into the treaty have been fully implemented in practice. The committee has little to say about the treaty’s companion piece, the safety of Rwanda Bill. May I suggest two respects in which the Bill reinforces the committee’s recommendations?
First, the Bill is due to enter into force on the same day as the Rwanda treaty, which will itself enter into force immediately on ratification by both parties. Planes could, in other words, be in the air the day after ratification. That does rather demonstrate the practical dangers of ratifying prematurely.
Secondly, as the noble Lord, Lord Kerr, has said, the existence and terms of the Bill confirm the general view that the treaty has not yet rendered Rwanda safe. If the treaty were watertight, it could be defended with confidence in the courts, as was the MLAT with Jordan. Yet the Bill goes to considerable lengths to avoid such scrutiny, challenging as it does so the rule of law, the separation of powers between the courts and Parliament, our domestic human rights settlement, our compliance with international law and the Civil Service Code. If the Government were prepared to wait until things are as they need to be on the ground, and if that wait were as short as they claim it would be, none of this damage to our constitutional fabric would be necessary.
In the end, perhaps, it is as simple as this. The Bill seeks to give the status of law to what it calls
“the judgement of Parliament that … Rwanda is”—
not will be or could in the longer term become—“a safe country”. Our own specialist, cross-party committee, the only one in Parliament, has unanimously given us the clearest possible advice that we are in no position to make such a judgment so, for my part, I do not see how in good conscience we could make it. For that reason, I support both Motions in the name of the noble and learned Lord, Lord Goldsmith, and I shall vote for the second one if, as I hope he will, he chooses to test the opinion of the House.
The Lord Bishop of Gloucester
My Lords, I welcome the opportunity to speak today and thank the International Agreements Committee for its excellent report. I will just say that as Lord Bishops we take no position on this Bench based on tribal loyalty and we are not whipped. Instead, because of what our Christian faith teaches us about care for the stranger, we have spoken with one voice on these Benches.
I am focusing on the issues before us today; friends on this Bench will speak to wider points in the coming weeks, as the Bill is discussed. As has been said, this treaty is the central plank of the Government’s case that Rwanda is a safe country for asylum seekers. As others have commented, it is remarkable for the Executive to request that parliamentarians declare another nation state safe, and safe ad infinitum, on the basis that one drafted international agreement answers all the concerns of the Supreme Court. If Parliament proceeds to, in effect, substitute its judgment for that of the Supreme Court, where does that leave the constitutional principle of the separation of functions and what precedent is this setting?
The question is not whether both parties are willing and capable of delivering on the treaty, but whether the provisions will become operational in reality. Both the committee and the High Court question Rwanda’s ability to fulfil its commitments in the short term in light of the evidential deficiencies of the present asylum system in Rwanda, as has been mentioned. Furthermore, the UNHCR has not observed any systemic changes that will address the court’s concern. Future assurances, however sincerely offered, are not on their own a strong enough basis to legislate a country as safe.
The role of government is indeed to create law, but it is not to create injustices. Therefore, if the Government are so confident that the treaty obligations placed on Rwanda will ensure that the Rwandan partnership is lawful, why not make this argument again before the judiciary? As the Government are not pursuing this course of action, the International Agreements Committee has recommended that the treaty not be ratified until Parliament is satisfied that the protection it provides has been fully implemented.
Given that the Home Secretary has stated that
“we will not operationalise this scheme until we are confident that the measures underpinning the treaty have been put in place; otherwise, the treaty is not credible”,
do the Government concede that this is an eminently sensible proposal that should be given serious consideration? To take one example from the treaty, can the Minister reassure us that judges from a mix of nationalities will have been appointed to the new appeals body before any flights take off to Rwanda? In general, how long do the Government envisage that it will take for Rwanda to put in place the protections outlined in the treaty?
No one on these Benches is denying the complexity of the challenges that irregular migration presents globally and on our shores. The boats must be stopped. The traffickers must be stopped and held to account. Immigration must, of course, be controlled. However, this debate is focusing us on the issue of whether sending people to Rwanda is safe and humane. The Prime Minister has called on Peers to
“get on board and do the right thing”,
but I fear that it cannot be right to assure ourselves that asylum seekers will be protected by a few sheets of paper.
Lord Hodgson of Astley Abbotts (Con)
My Lords, for those Members of your Lordships’ House with whom I have debated immigration and migration over the years, it will come as no surprise that I support the Government’s Rwanda policy. Further, while I thank the noble and learned Lord, Lord Goldsmith, for his very clear explanation, I have some concerns about the approach adopted by his committee, though as a non-lawyer I recognise his distinguished legal and political career. Last but not least, I thank those distinguished Members of your Lordships’ House who serve on his International Agreements Committee, and on whose behalf he has tabled these two Motions.
Among all the aspects of this tricky, difficult and challenging area that divide us, there is one that unites us: we need to find, as soon as possible, ways to stop people risking their lives crossing the channel in small boats and simultaneously find ways to break up the business model of the people smugglers. As my noble friend Lord Howell pointed out, this is just the beginning of a much bigger problem, but it is nevertheless a problem. It is worth remembering that we will have before us next Monday a Bill designed to tackle the first issue. Members of your Lordships’ House may not like the approach or may argue that it is defective, but it is a plan. It is inconceivable that the passage of the Safety of Rwanda (Asylum and Immigration) Bill would cause an increase in the number of people seeking to cross the channel.
While I absolutely respect the findings of the committee, any delays in implementing the provisions of the Bill—my noble friend Lord Sandhurst pointed out how interlinked this and the Bill are—will have real-life consequences away from the cool, calm deliberations of your Lordships’ House, with the most likely winners being the people smugglers and the most likely losers being those desperate, unhappy people hoping to cross the channel. As we come to decide our voting preferences, we need to bear this carefully in mind.
The Government’s policy statement on Rwanda, which is the subject of the report from the noble and learned Lord, Lord Goldsmith, is 33 pages long and impressive in its detail as to how the rights of people sent to Rwanda will be safeguarded. A number of noble Lords have pointed out the weaknesses in it, and I stand corrected by that. What is impressive about the report is not so much the detail it goes into but the number of third-party independent bodies that have rated Rwanda highly or reasonably highly. This includes the Ibrahim Index of African Governance, the World Justice Project rule of law index, the World Bank Group and the World Economic Forum gender gap report—which, by the way, ranks Rwanda higher than the United Kingdom. I felt that it was slightly unreasonable not to have given some weight to those third-party witnesses in the findings of the report.
Much of the debate revolves around the rule of law, which I strongly support, but I will end by referring to a different set of laws: the laws of motion, and specifically Newton’s third law of motion, which states that for every force in nature there is an equal and opposite reaction. It may not be attractive to say this, but in this country a large majority of the British people think that the provisions of our asylum system are being stretched to their utmost, and some would no doubt argue to well beyond that. As Newton’s law predicts, the force of the stretching has led to a countervailing reaction, and we can see and read about the consequences of that almost every day. If we are to maintain confidence in our system, it is important to pass or not pass the Bill without delay and take the consequences at the next election. I thank the noble and learned Lord, Lord Goldsmith, and his committee for their report. It contains some important points, but I urge the House to consider carefully the political consequences of being unwise in the way we delay the Bill itself with this particular provision.
Baroness Lister of Burtersett (Lab)
My Lords, I refer to the register of interests for support from RAMP.
We are indebted to the International Agreements Committee for its carefully argued report which, as we have heard, makes a clear recommendation to your Lordships’ House. Having read much of the evidence to the committee and other expert commentaries, including from the Law Society, I am satisfied that this recommendation is well based. The consensus among them is that, despite improvements in the treaty compared with the original memorandum of understanding, the treaty cannot of itself guarantee that the concerns raised by the Supreme Court will be met and that they are unlikely to be so in the short to medium term, as the committee concludes. The kind of improvements sought by the Supreme Court to make it safe will take time. To quote from the updated analysis provided by the UNHCR, referred to by my noble and learned friend:
“Even with the injection of additional resources, and sustained capacity development efforts, the transfer of an unspecified number of asylum-seekers from the UK to Rwanda will inevitably place additional pressure on a nascent and already overstretched system for receiving and adjudicating individual asylum claims”.
This is a system that, according to the Government’s own supporting evidence, has considered only 421 cases in the past five years, rejecting three-quarters of them despite many of the asylum seekers coming from countries such as Afghanistan and Syria that have high acceptance rates in the UK, as we have heard. The UNHCR states:
“As of January 2024, UNHCR has not observed changes in the practice of asylum adjudication that would overcome the concerns”
set out in its original analysis and evidence to the Supreme Court. It therefore continues to have concerns that asylum seekers transferred to Rwanda
“would not have access to fair and efficient procedures for the determination of refugee status”.
Based on its own extensive experience of capacity building, which emphasises system thinking, it warns of the limitations of training without the
“necessary legal framework and implementation capacity”.
Drawing on the evidence it received, the committee underlines the weaknesses of the commitments on training and monitoring, welcome as they might be. It reminds us of the Supreme Court’s point that, however good the monitoring proves to be, it does not help those it identifies as having been turned down wrongly. To quote the Joint Council for the Welfare of Immigrants,
“it would be far too late for the individuals whose lives would already be irreparably and irreversibly harmed”.
At the heart of the UNHCR’s concerns is the belief that, despite all the treaty’s claims, it, like the Bill,
“is not compatible with international refugee law”.
The JCHR observes that:
“The Supreme Court decision relied on evidence that Rwanda had previously failed to comply with international human rights treaties. It is hard to see how turning an agreement into a treaty can answer serious underlying concerns about Rwanda’s compliance with its international treaty obligations”.
Those concerns are hardly assuaged by the recent revelation, already referred to, that six people from Rwanda have been granted asylum in the UK since the original agreement was signed in April 2022. According to the i newspaper, at least one of these decisions was based on sexual orientation. Given Rwanda’s worrying record on LGBTQI+ people, outlined in the Public Law Project’s evidence to the committee, there is very real concern, among groups such as Rainbow Migration and the British Red Cross VOICES Network, about the implications of the treaty and the Bill for LGBTQI+ people seeking asylum in the UK who could be sent to Rwanda.
The treaty is full of assurances about both countries’ commitment to their international obligations with regard to refugees. Survivors of the Illegal Migration Act’s proceedings might recall that our concerns—based on the UNHCR’s unequivocal analysis that that and the earlier Nationality and Borders Bill did not comply with the refugee convention—were dismissed as simply one interpretation of that convention’s requirements. So, in true humpty-dumpty fashion, there is nothing to stop the Government asserting that these obligations are met under this treaty and the accompanying Bill when the experts say they are not, because, for the Government, words mean what they say they mean.
Apparently, according to the Foreign Secretary, as we heard, this represents
“out-of-the-box thinking”.—[Official Report, 16/1/24; col. 316.]
But legitimate asylum seekers, whom the Government wrongly call and treat as illegals, would be safer if thinking remained within the box of the official UN statement of these obligations. The committee is thus right to charge us with the need to consider carefully whether the treaty fundamentally changes the Supreme Court’s assessment regarding Rwanda’s international obligations. I believe all the evidence suggests that it does not.
One of the issues of substantive concern to the committee was the treatment of children. Needless to say, I have not seen any child rights impact assessment—can the Minister tell us whether there will be one before we consider the Bill itself? The committee’s report notes:
“The Treaty envisages that unaccompanied children might be removed to Rwanda if their age is in dispute. If subsequently determined to be children they would be returned to the UK. This might result in children being placed in unsafe situations”.
The potential unsafe situation raised in the ILPA/Justice evidence concerns sleeping arrangements. Can the Minister assure us that no age-disputed child would be required to share a sleeping area with adults?
The report cites witnesses’ arguments that the treatment of age-disputed children would be contrary to our obligations under the UN Convention on the Rights of the Child to prioritise the best interests of children and the UN Committee on the Rights of the Child’s recommendation to the UK to
“ensure that children and age-disputed children are not removed to a third country”.
Instead, there is a very real possibility that they will be removed to Rwanda and, if subsequently found to be under 18, sent back to the UK in a cruel human pass the parcel, which is likely to be very distressing for children who almost certainly have gone through considerable trauma.
Last year, a Written Answer to me gave the assurance that, under the MEDP, established by the original memorandum of understanding,
“No one undergoing an age assessment, or legally challenging the outcome of an assessment, will be relocated until that process is fully concluded”.
Can the Minister please explain why the treaty indicates otherwise? Given the chief inspector’s description of the age-assessment process for those arriving by small boats as “perfunctory”, and given plenty of other evidence, there is a very real danger of a significant number of unaccompanied children being earmarked for removal to Rwanda, despite the treaty’s assurances.
As your Lordships know, there are very real concerns about the introduction of so-called scientific methods in the age assessment of children. I realise that even if age assessment is completed in the UK, unless there is a legal challenge, the assurance I was given last year would not ensure that no child was erroneously relocated—but it would at least provide some protection. Nor would it cover children in families for whom, according to Barnardo’s,
“Forced removal has devastating impacts on mental and physical health and will blight the development and futures of these children”.
Finally, I will say a word about deterrence, which is presented as the treaty’s overarching objective in Article 2. In response to a recent Written Question asking what evidence there is of a deterrence effect, the Minister replied:
“We set out the evidence covering this in the published impact assessment for the Illegal Migration Act”.
Veterans of the passage of that Act may remember that the impact assessment said that:
“The academic consensus is that there is little to no evidence suggesting changes in a destination country’s policies have an impact on deterring people from … travelling without valid permission, whether in search of refuge or for other reasons”.
Refugee Council research supports that conclusion. Moreover, it suggests that, rather than being deterred from travelling, asylum seekers will take even more dangerous journeys to reach the UK and, once here, will be more likely to go underground, as have nearly 6,000 asylum seekers already according to the Home Office. The expert organisations the Refugee Council contacted believe that this will increase rather than remove the power of traffickers and others out to exploit desperate asylum seekers. Journalists from the Times and the i who spoke to asylum seekers in Calais were told that they would not be deterred by the threat of removal to Rwanda.
The Refugee Council research also found a consensus among organisations that the scheme and the state of perpetual limbo it would create for so many would have a very detrimental impact on the mental health of those seeking asylum. This is also emphasised in briefings from the BMA, Médecins Sans Frontières and Doctors of the World. They cite existing evidence of the detrimental effect on mental health of the prospect of removal to Rwanda, where they fear the healthcare will be inadequate because of a critical shortage of skilled health workers. We are talking here about extremely vulnerable people who have already often suffered trauma and even torture.
The latest report of the independent monitoring board expressed concern about the “deep anxiety”, “distress” and
“the increase in self-harm observed during the period when men were being detained for removal to Rwanda”.
On this point, can the Minister explain why, according to the i newspaper, the first 47 asylum seekers selected for relocation to Rwanda more than 18 months ago are still being kept in limbo given that the rules state that applications deemed inadmissible should be considered if relocation is unlikely within a reasonable period of time?
In his oral evidence to the committee, the Home Secretary conceded that
“None of us has an interest in rushing the fence and getting it wrong”,
and that
“If the elements of the treaty are not in place, obviously we will not be able to rely on the treaty for the purposes of asylum process”.
While he expressed confidence that the elements of the treaty will be in place, his confidence is not shared by a wide range of experts nor by the International Agreements Committee. I therefore believe it would be irresponsible of us to call for the ratification of the treaty now, and I hope that your Lordships will support the second cross-party Motion in the name of my noble and learned friend Lord Goldsmith.
Lord Hannay of Chiswick (CB)
My Lords, the UK-Rwanda Agreement on an Asylum Partnership, which the House is debating today, will not, I suspect, rank high in the ratings of Britain’s diplomatic history. Why not? Because it is costly, with so far no evident benefit, and because it transgresses a whole range of our international commitments and obligations, including those in the refugee convention, the Convention on the Rights of the Child, the convention against torture and, potentially, the European Convention on Human Rights.
You cannot hope to be a credible champion of the rules-based international order—as the Government, rightly in my view, aspire to be—and, at the same time, pick and choose which of those rules you yourself will continue to honour. It upends our constitutional order separating the powers of the legislature, the Executive and the judiciary, by setting aside the Supreme Court’s ruling that Rwanda is not a safe country to which to send refugees—and that when, as other speakers have said, it is reported that we have been admitting some Rwandan asylum seekers, presumably on the grounds that Rwanda is not a safe country for them.
Fortunately, we have at our disposal the excellent, concise and relevant report on the Rwanda agreement by this House’s International Agreements Committee—in spite of the absurdly short time limit laid by the Government for the committee to do its work, which has inhibited its ability to gather evidence and to consider the Government’s own tardy replies to its inquiries. Can the Minister tell us whether there is any other properly democratic country that provides as little time and as little scope for its apparently sovereign legislature to consider international treaties and agreements before they are ratified? The noble Lord, Lord Howell, made that point, and I strongly endorse it. If there is no such country that has as short a timescale, with as little scope, as we do, surely it is essential that the Government provide more time and scope in future?
The problems with this agreement do not stop there. I differ from the suggestion from a noble Lord who spoke previously that those who support the second Motion are putting the cart before the horse; I suggest that today’s debate puts the cart quite firmly and squarely before the horse. This is the last pre-ratification parliamentary process on this agreement. Once it is over, there is nothing to stop the Government ratifying the next day, if that is what they decide to do.
Yet the obligations on both sides, which are set out in the agreement, require primary legislation—which is not yet complete. In the case of Rwanda, I gather that it has not yet even begun. For Rwanda, it requires putting in hand and carrying out a whole range of remedial training and institutional changes needed if the problems identified by our own Supreme Court, which declared Rwanda an unsafe country to which to send asylum seekers, are to be remedied.
These are extremely serious lacunas, without the filling of which there can be no certainty that Rwanda has indeed become a safe place to which asylum seekers can be sent. Indeed, until the Government are sure that these lacunas have been remedied, it must surely be doubtful whether it is even legal for our authorities to compel asylum seekers, however they may have arrived here, to go to Rwanda. Perhaps the Minister could comment on that point.
The committee’s report sets out 10 steps which it believes will need to have been completed before the problems identified by the Supreme Court are remedied. Could the Minister be so kind as to tell the House whether the Government concur with that analysis and list? If so, what plan and timetable exist for them to be implemented? Do the Government accept that that process needs to have been, in the committee’s words,
“put in place and bedded in”
before any process of ratification is completed?
The answers that the Minister gives to those questions will clearly affect the conclusion to be reached by this House at the end of the debate. In the committee’s view, which I find compelling, there would then need to be a further debate before the UK proceeds to ratification. That must surely be the right way to proceed in the present circumstances and will, I hope, be the conclusion we reach today. If not, it will make a mockery of the sovereignty of Parliament, which the Government frequently call on us and the courts to recognise and respect.
Lord Razzall (LD)
My Lords, as a member of the relevant committee, about which many compliments have been paid, particularly to the chair and the staff, I rise to support the two Motions in the name of our chair, the noble and learned Lord, Lord Goldsmith. I first make a point that I am not sure anyone has made, which is the dilemma with which the Government are faced. If we go back to the beginning, the whole reason for the proposal to send people to Rwanda was that it was going to be such a hellhole that nobody would want to get on a boat if they thought they were going to go to Rwanda. The dilemma the Government now face is that, because of the Supreme Court, they have to demonstrate what a wonderful, safe place Rwanda is. I wonder whether this might just be a moment for them to reflect on the purpose of their policy.
Recent events go either way. First, as noble Lords indicated, six people from Rwanda have had to be granted asylum here. I do not know why; I do not know whether anybody knows why. If that is the case, it may somewhat help the deterrent argument: the hellhole argument. Conversely, RwandAir for the first time last week commenced non-stop flights between Kigali and Heathrow. Whether that is in preparation for taking people, who knows—and which way that goes on the argument of deterrence or safety, again I am not sure. But it does seem to me and to many of us that this a classic case of two and two adding up to five.
There are a couple of peculiarities in the Rwanda treaty that noble Lords have touched on. First, as the noble Lord, Lord Kerr, said, the rhetoric of the Government in defence of their policy and of the treaty has been that a number of other countries have done and are doing the same. Italy is cited vis-à-vis its current negotiations, and of course in the Tory party the highlight would be Mr Abbott winning the election in Australia all those years ago on the basis of processing migrants in Papua New Guinea—and I think also in Nauru. But, as the noble Lord, Lord Kerr, indicated, there was a fundamental difference, in that they were being processed by Australians who decided whether they would be given asylum in Australia. That is not the case with this treaty. Anybody who is sent to Rwanda and is granted asylum there can only, as we know, be kept in Rwanda and certainly cannot come back to the UK, except in exceptional circumstances.
The second point, which I do not want to labour but which several noble Lords, going back to the noble Baroness, Lady Chakrabarti, have touched on, is that there seems to be a strange interplay in this treaty between the asylum rules and the refugee rules. I am not sure exactly how that plays out, but it is a complication.
The Government’s policy says, and the evidence they gave to us is intended to show, that the new treaty contains significant new protections to meet the Supreme Court objections. A number of noble Lords have mentioned them, and the Government have listed the new protections: first, a new system for processing asylum claims, with new institutional structures and a provision for free legal advice; secondly, the establishment of a first-instance body to hear claims, as well as a new appeals body with judges from a mix of nationalities; thirdly, an independent monitoring committee that will be set up, bolstered by a support team; and, most particularly, the new domestic legislation that will be required in Rwanda to implement the new system.
As noble Lords and our report have indicated, a large number of actions are now required: a new asylum law, a process for making complaints to a monitoring committee, the recruitment of the monitoring committee support team independent of the establishment and the hiring of independent advisory experts, the establishment and appointment of co-presidents of the appeals body and other international judges, training for the new appointees and the recruitment of legal advisers and interpreters. All of this, as noble Lords have said and as our report indicates, takes time and, in the committee’s view, should be established before ratification.
Noble Lords who are hesitant about voting for the second Motion in the name of the noble and learned Lord, Lord Goldsmith, should accept that this is not about the legislation, which has caused such rows in the Tory party; it is about the treaty. I remind noble Lords that none of the four Tory Members who have spoken—including the noble Lord, Lord Howell, who is in his place—have dissented from this recommendation. It is a unanimous recommendation. From publicity, we are all aware of how the Tory party in another place has been tearing itself apart over this issue, but it is the Bill, not the treaty, that it has been tearing itself apart over. Noble Lords really need to take that on board.
In any rational world, this would not happen and the recommendation of the noble and learned Lord, Lord Goldsmith, would be followed. I wonder whether it is only the absolute determination of the Government to start flights to Rwanda before an election that is stopping this. I should add that I do not think our recommendation implies criticism of Rwanda in any way; we all accept, I think, that it has acted in good faith. It is a perfectly respectable member of the Commonwealth that seriously wishes to implement the desired protections.
My noble friend Lord Purvis referred to the best part of £400 million that we have committed to this project. In Davos, President Kagame indicated that, if no migrants from the boats were sent there, we could have the money back. I suspect that we will be asking him for it.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the wonderfully clear and blunt speech of the noble Lord, Lord Razzall. I am acutely aware of the depth of knowledge already contributed in this debate, as well of the House’s desire to get to the vote on the important issue before us, so I will aim not to detain the House for too long.
There are some points from the debate thus far that are worth stressing. As many speakers have noted, we are not here to debate the infamous Rwanda Bill; that pleasure is to come. It is no secret that the Green Party absolutely opposes the Rwanda Bill and will do everything it possibly can to stop it. As the noble Baroness, Lady Chakrabarti, noted, the will of the people is diverse, not singular. Many people are joining with us by signing the Green Party’s petition against the Bill to express the concordance of their feelings with ours. However, that is not what we are talking about today. We are scrutinising the viability, practicality and deliverability of the safe and legal offloading—I borrow the term from the noble Lord, Lord Kerr of Kinlochard, as it sums up the position so well—to Rwanda of Britain’s responsibility to provide care and refuge for some of the most vulnerable people on the planet.
One interesting measure worth considering is the economic one. Rwanda has an annual GDP of $1,000 per person. The UK has a figure approaching 50 times that, yet we are—with significant financial payments, admittedly—permanently transferring responsibility for these refugees to Rwanda. Is a country that was wracked by genocidal conflict only 20 years ago resourced, organised and structured well enough to cope? Can it live up to the promises made by its president? These are some of the questions that your Lordships’ International Agreements Committee, cross-party that it is, says can be answered only after a period of time.
It is worth stressing again that the noble and learned Lord, Lord Goldsmith, who introduced our debate so clearly, was speaking not as a Labour Lord but as a representative of a highly respected committee of your Lordships’ House. He acknowledged that this was an unprecedented Section 20 Motion, but can your Lordships think of a better word than “unprecedented” to describe the terms by which we now live? As the noble Baroness, Lady Chakrabarti, said, the Supreme Court made a judgment of fact that the Government, with the power of the Executive, are now seeking to overturn.
The UK has an unwritten—or, if your Lordships prefer, uncodified—constitution. In comparison to many other countries, which have human rights and rules of law written into their constitutions, we rely on the actions of the historic moment to maintain them. For those who speak in favour of our current constitutional arrangements, voting for both these Motions is a chance to prove that the current arrangements can defend basic rights, legal principles and government based on fact.
In the United States back in 2004, politics being “reality-based” was mocked by an official of the Bush Administration. This has often been repeated by that side of politics since, but many on my side of politics take it as a badge of honour. “Yes”, I proudly claim, “I am reality based”.
Paragraph 9 of the International Agreements Committee report notes:
“The Supreme Court … considered that on the facts Rwanda was not a safe third country”.
As Professor Tom Hickman KC told the committee, as recorded in paragraph 16,
“the Rwandan government does not possess the practical ability to fulfil its assurances”.
Your Lordships will make a judgment not on party politics but on whether the actions of the British state should be based on facts. Is this a reality-based House? The Green Party will support both these Motions and I urge every Member of your Lordships’ House to do the same.
Lord Alton of Liverpool (CB)
My Lords, the whole House is greatly in the debt of the noble and learned Lord, Lord Goldsmith, for giving us the opportunity to debate the Rwanda agreement, to consider the nature of our international obligations and to make the judgment to which the noble Baroness, Lady Bennett, just referred on whether Rwanda is a safe place to which we can send asylum seekers.
Along with the noble Lord, Lord Dholakia, and the noble Baroness, Lady Lawrence—who are in their places—I serve as one of six Members of your Lordships’ House on the 12-Member-strong Joint Committee on Human Rights, under the admirable chairmanship of the Member of Parliament for Edinburgh South West, Joanna Cherry. I note that another of our Members, the noble Baroness, Lady Kennedy of The Shaws, is also in your Lordships’ Chamber.
We were in session last Wednesday taking evidence from the Refugee Council, Justice, the Immigration Law Practitioners’ Association, Chatham House, Migration Watch, and Professors Sarah Singer and Tom Hickman KC. On Wednesday this week we will hear from, among others, Lord Sumption and the noble Lord, Lord Sandhurst KC, who spoke earlier in this debate.
It is the job of Parliament to hear different views and to assess the arguments carefully. Too often, as my noble friend Lord Hannay indicated, we put the cart before the horse: we do not do it, which is not good governance. Too often, we pass legislation in haste and repent at leisure. The treaty before us, the Bill that will come and that which we already considered in 2023—the Illegal Migration Act—are examples of that.
In the 5,000-word report that the JCHR produced on that Act, we said that
“this Bill breaches a number of the UK’s international human rights obligations and risks breaching others”.
We went on to say that
“this gives us significant cause for concern”
and that:
“The Government is rightly concerned about the loss of life in the Channel. So are we”.
This echoes the point that the noble Lord, Lord Howell of Guildford, made trenchantly in his speech. The loss of life and the scale of the migration crisis are such that politicians of all persuasions must respond to the widespread concern and anger at the failure to tackle the crisis, both here and in other jurisdictions. It does the process no good when we are seen to stampede things through both Houses.
When the Joint Committee asked the then Home Secretary, Suella Braverman, to appear before us and justify the measures that were in the previous Bill, she declined. I do not believe that is how Parliament should be treated. It does nothing for public confidence in our processes.
The Government rightly insist that the criminal, mafia-like gangs who make their fortunes by preying on the desperation and misery of the vulnerable must be hunted down and jailed. I agree. I also commend the Government and agree with them that they have achieved a great deal in their bilateral agreement with Albania and the progress made towards a pan-European initiative at the European Political Community Summit of 47 European leaders in Granada last October. But is it really the case that the EPC will not meet again until June? Perhaps the Minister will tell us. This requires urgent international strategy and decisions. Our Joint Committee on Human Rights report is insistent that the global crisis of displacement—UNHCR puts the number at 110 million people—means that:
“Given the sheer scale of this global crisis, it cannot be solved by one country alone”.
Let us recall that eight out of 10 refugees—many millions—end up in neighbouring countries, not in the United Kingdom, so there are plenty of other countries which need to join an international alliance and promote an international strategy.
Two years ago, on 6 January 2022, on behalf of my noble friends on the Cross Benches, I moved a Motion which noted
“that 82.4 million people are displaced worldwide, 42 per cent of whom are children, and 32 per cent of whom are refugees, and (2) the case for an urgent international response to address the root causes of mass displacement”.
That 82 million was two years ago, the number is now 110 million, and it will go on rising. Unless we tackle the fundamental reasons for displacement, the tsunami of desperate people will continue to be washed up on Europe’s shores and seabeds.
Nine months since I chaired an inquiry into the situation in Sudan, we have seen 7 million people in Sudan alone displaced. Half a million people have fled Darfur in recent weeks and are now in Chad. Add to that the numbers from Tigray and from Eritrea—a tiny country from which half a million people are displaced, having escaped the cruel conditions that prevail there. The JCHR was told last week:
“Unless there is a collective global effort to create stability through conflict resolution and the promotion of rights in those countries, the number of refugees from those specific countries is unlikely to decrease”.
It was Winston Churchill who promoted so much that we now take for granted, including the European Convention on Human Rights. He rightly believed that such international architecture—based on the rule of law, democracy, human rights, security and economic recovery—represented our best hope for the future. That brings us directly to the Motion brought by the noble and learned Lord, and what Parliament is being asked to agree.
As we have been reminded, it was the unanimous decision of the Supreme Court in November, based on the identification of a number of concerns about Rwanda—including poor compliance with its international obligations, poor understanding of the refugee convention and a poor human rights record—that led to the International Agreements Committee producing the report that we have been considering. That report says that
“the Rwandan government does not possess the practical ability to fulfil its assurances to the UK government, at least in the short term. That is not something that can be fixed by entering a binding treaty alone”.
To confirm that, last week the JCHR heard evidence of the inadequate in-country access to legal remedies in Rwanda, a lack of independence for the judiciary and legal representatives, and a bad track record in complying with other international agreements.
Finally, I turn to the central issue of safety. Once again, we have the Home Secretary unable to give a Section 19(1)(b) statement on the face of the Bill to affirm that the Bill coming before us next week is compliant with the convention, which I presume can mean only that the Government do not regard Rwanda to be a safe destination. Witnesses to the JCHR last week put it to us that if the Government were confident about the safety of refoulement, they would not be afraid of independent judicial oversight.
The question today is simply whether we can honestly say that Rwanda is a safe country, and it was put to the JCHR that this also engages the separation of powers between the judiciary and Parliament, a point made earlier by the noble and learned Lord, Lord Goldsmith. Professor Singer said:
“To contradict the Supreme Court in this way is, perhaps, not showing the respect to the court that should be owed as a constitutional principle. Furthermore, the legislation prohibits the UK courts from reopening and considering the question of whether Rwanda is safe”.
The JCHR was left in no doubt that if this new Bill is rushed through, the courts will once again be asked to decide whether Rwanda is safe and whether circumstances have changed. Guess what—if the verdict is that Rwanda is still not safe, the law will have to be changed yet again. Meanwhile, the Government of Rwanda have themselves said they would not want, as the noble Lord, Lord Razzall, reminded us, to implement a scheme said to be contrary to international law.
In considering the issue of safety, the House will want to take into account the new analysis that the UNHCR published last week, in which it once again insisted that Rwanda is not a safe country, a point made by the noble Baroness, Lady Lister. That analysis includes the following:
“As of January 2024, UNHCR has not observed changes in the practice of asylum adjudication that would overcome the concerns set out in its 2022 analysis and in the detailed evidence presented to the Supreme Court”.
At a minimum, the Government need to tell us what has changed on the ground in Rwanda since the Supreme Court decision. What evidence do they have, for instance, in regard to political oppression or LGBT people? What examination have the Government made of the reasons why Burundi has closed its borders with Rwanda, and of Rwanda’s links with the M23 militias in the eastern DRC—what analysis has been made of that? What is the Government’s response to the 2023 Human Rights Watch report stating that
“Commentators, journalists, opposition activists, and others speaking out on current affairs and criticizing public policies in Rwanda continued to face abusive prosecutions, enforced disappearances, and have at times died under unexplained circumstances”.
Like others, I visited Rwanda, in my case in the aftermath of the genocide, and saw terrible mass graves. Huge strides have been made to recover from the deaths of between half a million and 800,000 people, as my noble friend Lord Kerr reminded us earlier, but it is deceptive to describe Rwanda as a safe country for refoulement.
It is passing strange that we have five alleged genocidaires living in the UK that we have not sent back to Rwanda, for fear that they would be at real risk of not receiving a fair trial if returned. The primary issue in those extradition proceedings was whether they were at real risk of a flagrant denial of justice if returned to Rwanda; they expressed fears that they would be tortured and executed. When the cases came back to the courts in 2015 and 2017, Lord Justice Irwin and Mr Justice Foskett said:
“Our concerns focus on the political pressures on the judicial system, the independence of the judges, the difficulties and fears of witnesses and particularly the capacity of defendants to allegations of genocide to obtain and present evidence and be adequately represented in their defence”.
We should think very carefully before stampeding through treaties, agreements or, indeed, next week, new legislation. I do not believe that public concerns about migration will be assuaged by offloading our responsibility, as my noble friend Lord Kerr said. It would clearly allay many public concerns if we were more efficient in dealing with applications more swiftly and sorting out the genuine from the false, but instead of this we are told we must make a Faustian pact and trade our commitment to international law and the safety of asylum seekers in return for measures that even their supporters say will not work.
For all those reasons, I will vote for both Motions that the noble and learned Lord has placed before the House, and I hope that the rest of the House will too.
Lord Balfe (Con)
My Lords, I am reminded of a saying of John Major’s: if you are in a hole, stop digging. I will be supporting the Government tonight. I am not sure that this is the solution to the problem that we have before us. There is a big contradiction: we hear about vulnerable immigrants in Calais, but we also hear about migrants who spent thousands of dollars to get there. The prospect of a trip to Rwanda is not going to put them off getting a boat across the channel, so let us regard that as a starter.
Let us look at what Rwanda is actually up to. It was very anxious to get into the Commonwealth—virtually the only Commonwealth country that we did not manage to colonise, but we let it in. Now, I see the Rwanda business as being rather like putting old people into private equity homes. Rwanda has spotted that there might be an opportunity for making quite a bit of money out of the West—particularly the United Kingdom—and so it has signed up to this. We can well ask: is it a safe country? Is anywhere in Africa particularly safe? I cannot think of any country in Africa that I would wish to go and live in. Perhaps it is safe: we do not know. That, however, is not the point. The fact of the matter is that even if it is declared safe, we are going to get 200 to 300 people there out of thousands who are coming to Britain.
We need to look at this more widely, as one or two noble Lords have mentioned. We need to realise that the whole international migration system has got out of hand. It is not whether or not people are any more vulnerable, it is the fact that, with modern technology, they can look at their iPads and work out that this would be a much better place to live than where many of them are at the moment. That is why there are smuggling gangs: they are catering to the market. It is as simple as that. They set up in business, saying, “What shall I do? Shall I run a bike repair shop? Shall I sell chapatis on the corner of the street? Oh no, I think I could make a lot more if I got a smuggling operation together”. That is what is happening. If we are going to cure it, we have to do it as a European entity.
I noticed today that Prime Minister Meloni of Italy has gone to see President Erdoğan in Turkey to talk about migration. But it is no good just one Prime Minister and one President talking about migration. This has to be a European step forward. We have to start off by rebuilding the countries of the Middle East that we smashed to pieces. We caused Libya to be a failed state; we were the people who went into Iraq in very dubious circumstances; we were the people who, I was assured by the last Foreign Secretary-but-eight, had to get rid of Bashar al-Assad, even though he was running a country that was certainly authoritarian but was pretty peaceful. What did we do? We bombed it to bits. So the first thing we have to do is get prosperity back and the second thing is to get agreements at a European level on a much wider basis. That is the solution.
I have read the report and I think it is very good. I am not going to vote for it, however, because I am going to support the Government in their attempts—which probably will not work—to deal with this problem. We have to decide whether we wish these efforts well or ill.
We seldom talk about the famed people of Britain, but I can tell you that in Cambridge, where I live, there is no big queue of people saying, “Can we have a few more boats? Can we have an asylum centre in Cambridge?” It is just not there. So we should come to terms with reality. These are my final words: the difference between this and another system is that in a democracy the people vote, and they are entitled to have their votes translated into action. There is absolutely no doubt in my mind that the people want illegal migration to stop. The job of the Government is to do that.
Baroness O’Loan (CB)
My Lords, I thank the noble and learned Lord, Lord Goldsmith, for tabling these two Motions to allow your Lordships’ House to consider the Rwanda treaty before we have to consider the Rwanda Bill. As noble Lords have said, the treaty and the Bill are consequential on the Supreme Court judgment that Rwanda cannot be assumed to be a safe place. This is, as the noble and learned Lord, Lord Goldsmith, indicated, an exceptional report. Its findings are very grave indeed. Next week, we will be asked in the Rwanda Bill to accept that Rwanda is a safe place, despite the fact that the evidence does not exist, as my noble friend Lord Alton just graphically illustrated.
The Home Secretary says in the Bill that he is unable to make a statement that the Bill is compliant with the Human Rights Act. That in itself should cause your Lordships alarm. We have obligations under not only the Human Rights Act but international legal instruments, and this is not the first occasion on which this Government have produced legislation which is not compatible with our international and domestic legal obligations. I think of the legacy Act currently being challenged in the High Court in Northern Ireland. Actions such as the introduction of the Rwanda Bill, which relies on a treaty which the Government have only just signed and which provides for a very complex structure of mechanisms to make it work at all, which will require the identification of personnel, accommodation, IT systems, training, new asylum law and many other processes, none of which exist at present, do further grave damage to the United Kingdom’s international reputation. What is so stark, on reading the report of the International Agreements Committee, is the manifest lack of ability, capacity and preparedness to make the provisions of the treaty operational in the near future, in addition to its other deficiencies.
That there is a problem of uncontrolled unlawful migration cannot be denied. However, the Government’s response over past years has been generally to reduce the number of staff employed to deal with asylum matters and the general resources provided for these matters, and above all, the failure, as my noble friend Lord Alton said, to devise a workable, human rights-compliant strategy to resettle displaced people and, more importantly, to work internationally to create levels of peace and prosperity in the countries from which so many of these migrants come.
We granted more than 500,000 asylum applications this year, 70% of the total number of applications. In contrast, some 25,000 illegal immigrants arrived in small boats last year. In future, we are planning to send such people out to Rwanda before their asylum status has been determined if they enter through what are called
“dangerous, illegal and unnecessary methods”.
Already this year, 614 people are reported to have arrived in 15 boats, which is about 40 people a boat. Their status is then to be determined in Rwanda and there is an agreement that they will not be deported by Rwanda unless the UK asks for them to be sent back to the UK. However, there is evidence that Rwanda has deported to Uganda people who arrived there under comparable arrangements. Moreover, if they are not granted refugee status in Rwanda, their future will be very bleak indeed. It will not be possible under the proposed processes to track and monitor what happens to them. The proposals for tracking and monitoring are time-limited and are currently an aspiration rather than a reality.
In a very unstructured and knee-jerk way, we are attempting to limit the number of people coming to our shores. In so doing we have spent hundreds of millions of pounds. We have paid many millions to France—I think it will be half a billion pounds over the three years ending in 2026—yet those seeking to come unlawfully to the UK are still able to set off from France, with an average of 40 people in a standard inflatable. Many of those inflatables have come under significant pressure, and people have died as a consequence.
Getting 40 people into an inflatable and setting it on course for England cannot achieved speedily. It must be possible for the French to do more in return for the money that we have given them. Through the use of drones or helicopters, allowing for intervention on French soil, a positive and proactive French response in this context would undoubtedly have a deterrent effect.
Moreover, we are spending millions on policing the channel. We no longer have the coastal vessels necessary for these channel operations, because their replacement was delayed by the Government; so we are now hiring private vessels to do the work, at a cost of £36 million in a year. Work to replace these vessels will not start for another two years and is not expected to be completed before 2028, so we will spend another £200 million picking people out of the Channel. That is in addition to the money we are spending each day on accommodating people and providing the necessary resources for their processing and appeals, et cetera.
The solutions proposed in this treaty, even if they were acceptable in human rights terms—and there is no evidence that they are so acceptable—have yet to be realised in any degree. The committee has identified very significant matters that require to be addressed before the UK can have any confidence that the structures will actually work, that Rwanda will be a safe place for migrants to be processed, and that the UK can be satisfied that migrants will not simply be deported to third countries, in breach of the requirements of the treaty.
If the UK has such difficulty in providing accommodation, education, healthcare and all the other services that are necessary, can the Minister explain how the UK can expect that Rwanda will be able to do so? Most particularly, to echo the comments of the noble Baroness, Lady Lister, and the noble Lord, Lord Alton, how can he assure the House that children and vulnerable adults will be kept safe under these arrangements?
The committee has said:
“The Government has presented the Rwanda Treaty to Parliament as an answer to the Supreme Court judgment and has asked Parliament, on the basis of the Treaty, to declare that Rwanda is a safe country. While the Treaty might in time provide the basis for such an assessment if it is rigorously implemented, as things stand the arrangements it provides for are incomplete. A significant number of further legal and practical steps are required under the treaty”.
The committee gives, as examples, the new asylum law that is required, as well as
“a system for ensuring that refoulement does not take place; … a process for submitting individual complaints to the Monitoring Committee”—
which is yet to get its support people—
“the appointment of independent experts to advise the asylum First Instance and Appeals Bodies; … the appointment of co-presidents of the Appeals Body; … the appointment of international judges; …training for international judges in Rwandan law and practice; … training for Rwandan officials dealing with asylum applicants; and … steps to ensure a sufficient number of trained legal advisers and interpreters are available”.
Can the Minister tell the House the timetable for the creation and establishment of all these structures and when they will be delivered in a way that will enable the House to have confidence that people who are sent to Rwanda will be safe? Even after all that work has been done, there will have to be further work to ensure that what has been established actually works.
Your Lordships have heard repeatedly that there is no evidence that Rwanda is currently a safe place. The structures provided in this treaty are, quite simply, not operational at present, and not capable of being operational. For that reason, I will vote to support the Motion that the Government should not ratify the treaty until the protections that it provides have been fully implemented.
Baroness Lawlor (Con)
My Lords, I am grateful to the noble and learned Lord, Lord Goldsmith, and members of the International Agreements Committee for their report on the UK-Rwanda agreement. As other noble Lords have pointed out, it is a model of clarity, precision and informative analysis, as was the noble and learned Lord’s elegant summary today.
The noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Kerr, both brought us through the steps proposed in the treaty and those that are still needed to make Rwanda a safe country. I will not go through all the steps to which they referred, but they concluded that those steps have not been put in place yet, as noble Lords across the House have pointed out, and we do not know whether they will be and how effectively that will be done.
The question that has been put is a fair one: are the guarantees proposed by the Government to be agreed in international law under the treaty, which involve legal and practical steps and reassurances on compliance, sufficient to allow Parliament to judge whether Rwanda is safe? Is saying that something is the case, or committing to measures that may make it so, proof that it is so? I also ask: will it reassure the courts? The committee does not think it should reassure Parliament, and nor in my view is it likely that the courts will judge it so.
On the face of it, the committee’s report, arising as it does from the decision of the Supreme Court and dealing with the Government’s response to that decision, is unanswerable. I sympathise with the courts that interpret the law and with the committee, which, following the Supreme Court judgments, asks whether the treaty will do the job that the Government say it does—that is, to reassure Parliament that Rwanda is safe.
Whether the treaty ultimately succeeds and works will be for the courts to decide, but, if a successful challenge is brought against removal to Rwanda, that answer will be no, for, as long as the UK is bound by the current provisions of international laws relating to asylum and refugees, it will not be able to satisfy the obligations. No country can. Such international treaties protecting the human rights, asylum and refugee claims of people from jurisdictions other than our own seem to command priority over the concerns of people in this country. Moreover, ever more complex arrangements seem to be put in place to promote and safeguard such claims, often at the expense of those voters in this country.
We have been told, including by some noble Lords in this House—and here I refer to the excellent speech of the noble Lord, Lord Hannay—that, were we to deviate in any way from international law, this would cast doubt on Britain’s standing among other countries party to the law. Well, I do not think we would be out of step with our neighbours. France, Italy and Germany face the same problem. Each of those neighbours is a G7 country and each has seen an explosion in the number of those arriving within their borders to seek asylum. They are generous to asylum seekers—as is Britain, and its people. But Germany, which has taken quite a number of asylum seekers, is, in the words of the left coalition, which I will not repeat in German, full up.
We are living in a make-believe world in which Parliament and the courts seem to be at loggerheads, in practice if not in principle. We claim the centrality of the separation of constitutional powers: many noble Lords have referred to that, and the committee’s report refers to it in paragraph 13. But no longer can I see that the courts, in doing the work they do—which, given the law, they must do—can protect this country from what seems to many people to be arbitrary power. For, whether we like it or not, international laws made, changed, interpreted and imposed, even if under a treaty to which we are a signatory—the consequences of which the majority of people have continued to make clear democratically, through the ballot box and through opinion polling, they do not want—are arbitrary and should not be retained.
I suspect that many noble Lords will warn the Government against proceeding with the Rwanda Bill linked to this treaty. Some will support the second Motion from the noble and learned Lord, Lord Goldsmith. I will certainly support the first, but not the second. If it does the trick to reassure, first, Parliament and, ultimately, the courts, well and good: but, given the exceptional ability, ingenuity and inventiveness of those engaged in advising asylum claimants, it will not be long before a successful challenge is brought.
Can my noble friend the Minister ask the Government to prepare and publish the necessary measures to prepare for that eventuality and see off the challenge? For, whether we like it or not, and whether the Government like it or not, we are seeing a constitutional crisis in the making, in which the will of the people, through their MPs, to have a say in the laws under which they are governed, the kind of country they live in, the taxes they pay and the opportunities they have, is flouted because their Parliament is powerless. The constitutional protection of the courts—the traditional role of the courts to protect freedoms—appears to them to have been turned on its head. Given its international obligations, the UK cannot control who comes in and who goes out, for that depends not on Parliament nor the will of the people but on what seems to them to be distant law made for a far-off time and a different world.
Baroness Hayter of Kentish Town (Lab)
My Lords, this is a significant debate, which includes a very serious Motion—the first of its kind, as we have heard. It is absolutely right that it is in front of us today.
I am still on the International Agreements Committee and when I was chair, the agreement with Rwanda was merely a memorandum of understanding, not a treaty. We were rightly critical of that method, exactly because it bypassed the CRaG Act and therefore did not have to be approved, or indeed even debated, by Parliament. As we have heard, the 2010 Act specifically gives this House the right—I would say the duty—to recommend against the ratification of a treaty if it judges that that is appropriate, albeit that the actual decision quite rightly rests with the elected House. But it is part of our role to make recommendations both to the Government and the Commons. For the first time, the International Agreements Committee has concluded that the treaty should not be ratified until its various provisions and new bodies are demonstrably in place, the relevant lawyers and judges appointed, the committees ready to act and other requirements met.
I say to the noble Lord, Lord Sandhurst: yes, the wording in the treaty, its aspirations, may well be sufficient to satisfy the Supreme Court and its concerns, but we need to see those words become reality before the treaty is ratified.
As the noble Lord, Lord Anderson, said, ratification now, before implementation of the safeguards, could mean planes the next day—before the safeguards are in place and before the Supreme Court, if it were allowed to opine, which it will not be because of the clause, could say, “Yes, that is now a safe destination”. Parliament needs to ratify, and agree to ratify, the treaty before it becomes operational—as must Rwanda itself. The treaty, as opposed to the Bill, deals with what Rwanda will do to answer the Supreme Court’s concerns so that it can take responsibility for assessing asylum seekers and caring for them, before and after any decision is made.
There are many who have argued, and will argue, that under international law the UK should never hand over responsibility for those who seek asylum here because, as we have heard, it is not simply to process them but, if they are judged eligible, to award them asylum in Rwanda rather than in the UK. As the noble Lords, Lord Razzall and Lord Kerr, said, we are not offshoring consideration but offloading responsibility.
I am not going to enter the debate about whether the whole Rwanda process is right or wrong. Along with the committee’s report and many noble Lords who have spoken, I will focus on whether the treaty answers the concerns raised by our own domestic court—our highest court in the land, the Supreme Court and not some foreign court, as others seem to think. It was the Supreme Court that judged that Rwanda was not a safe place to send asylum seekers and therefore that rendering refugees there would be unlawful. It questioned whether Rwanda’s domestic procedures—its own rules, asylum processes and personnel—were up to handling migrants in accordance with our domestic law, as well as international law. As the right reverend Prelate the Bishop of Gloucester said, by this treaty and the Bill the Government are substituting their own opinion on a matter of fact for that of the highest court in our land. If I read her correctly, indeed, she is challenging the Government to go back and ask for the court’s opinion.
As many others have said, there is no doubt that Rwanda wants to meet the expected standards, and in the treaty it has undertaken to provide the law, skills, training, monitoring and so forth that we would expect. I do not doubt its bona fides in this regard but, surely, our Government and Parliament need assurances that all those protections and provisions are actually in place before we ratify a treaty—a treaty by which people landing on our shores after difficult, trying and dangerous journeys, and, as my noble friend Lady Lister said, possible trauma in their home country, can be sent 4,000 miles away to a continent they may not know, and in the process lose all rights to claim asylum in the UK.
The International Agreements Committee has not said that the treaty should never be ratified. It has judged that the treaty should not be ratified
“until Parliament is satisfied that the protections it provides have been fully implemented”
by Rwanda and the safeguards, which many noble Lords have enumerated, are in place. We used the word “Parliament”; it is essential that the Commons should be able to decide whether the treaty should be ratified. Again, I agree with the noble Lord, Lord Sandhurst, that it is a matter for them. But for them to be able to take that decision, the Government have to provide time in the Commons for a debate and a vote. The Commons’ own Home Affairs Committee has argued for that, so that the elected House can record its view on whether the treaty should be ratified at this point.
It seems particularly inappropriate, given that the 2010 Act specifically allows for a Commons vote, that the Government are not obliged to provide time for this in the Commons. Our usual channels are rather more facilitating. The Government will be entitled to ratify the treaty once it has been laid for 21 days on 31 January. I was not here in 2010, but some noble Lords here today were and I am certain that, when the 2010 Act was passed allowing for the House of Commons to take a view on ratification, it was never envisaged that that was a theoretical right, and it would depend on the Government giving time in the Commons for such a vote. It was in the wash-up, so I assume it was a bit of an oversight at that moment.
The 2010 Act is not fit for purpose. Today is the first test of one of its Sections, allowing us to at least give our opinions on the matter. It remains the case that the Commons can only defer, not decline, ratification. That would only be for 21 days; we are not talking about this being for months on end. As we have seen, both with Australia and possibly with this one, given that there is no requirement for the Government to make Commons time available for a debate and vote, they are effectively shutting off the one power given to the Commons in the Act.
Today, however, our decision is a simple one. We have been given the right to have this debate, and we have, through the Motion of my noble and learned friend Lord Goldsmith, the opportunity to give our view about whether it should be ratified at this stage before we know whether all the procedures are in place. I think that is a judgment for us, and that judgment should be: not now, not today. The ratification should not take place until we have assurances from the Government that what is written in the treaty is ready to work and that Rwanda is ready to receive whatever number of migrants are sent there. I hope the House will support both the Motions.
Lord Carlile of Berriew (CB)
My Lords, it is a pleasure to follow the noble Baroness, Lady Hayter. She spoke with calm authority, derived not least from being the former chair of the committee whose report we are considering, and her words should be hearkened to strongly.
It has been a long debate and I will not repeat—I promise—what everyone else has said. I commend the Government and the Government of Rwanda for going through the process of discussing and reaching a treaty. The problem about that achievement is that it is only the beginning of a process and not the process itself. Indeed, the noble and learned Lord, Lord Goldsmith, in his excellent opening, explained that. He explained the role of the committee and the point of the committee. To use a metaphor, if the treaty does not have safe foundations, the skyscraper that is built upon it will become catastrophic. If the foundations are not solid, we should not allow that catastrophe to occur. The committee has found that the foundations are not solid.
In reality, are there not three steps that have to be taken? First, there has to be a treaty. The treaty is considered by the committee chaired by the noble and learned Lord, Lord Goldsmith. Secondly, if it passes the test of the committee, then it is legitimate for there to be a parliamentary Bill, which goes through its normal steps in both Houses. Thirdly, there is to be an effective law if the Bill is passed, which falls within the standards of our jurisdiction—of fairness, administrative sense and justiciability—without court proceedings being excluded under what are entirely artificial, uncomfortable and unfamiliar processes. The three steps I have described are not, to coin a phrase, three steps to heaven; they are three steps to law, and each one can only be mounted when the other one has successfully been trod upon.
It is noticeable that there have been seven speeches from the Cross Benches in this debate. As a former member of a political party—and I apologise for the umpteenth time to its members for being here, but they do not mind really—I can tell your Lordships that, unlike the political parties, there is absolutely no homogeneity about the Cross Benches; there is not that much homogeneity about some of the political parties either. You have heard seven speeches from the Cross Benches today, from noble Lords who have a wide range of experience and bring it to bear in the debate, that have all come broadly to the same conclusion. Some of that experience was spoken of by the noble Lord, Lord Anderson, who referred to one experience he had as Independent Reviewer of Terrorism Legislation.
I had another experience, which I think is instructive. In 2007, the then Government asked me to prepare on report on counterterrorism law in the United Kingdom. I did a great deal of research on black-letter counterterrorism law in other countries, and I went to one of them—a Commonwealth country—that had, and still has, excellent black-letter law, to deliver a seminar to judges who tried terrorism cases. At the beginning of the seminar, I asked, “How many of you have tried terrorism cases?”, and they all put their hands up. I then asked, “How many of you have seen a conviction in a terrorism case?”, and none of them put their hands up. That is a demonstration of how we can think we have achieved a solution through black-letter law in our system, but I am afraid that, in that country, there was a degree of manipulation and corruption of the judiciary that meant the right conclusions were never reached.
At the moment, we have not proved to the requisite standard—and I would suggest that should be beyond reasonable doubt—that Rwanda is a safe country for a law founded on this treaty. I will borrow a few words from the debate. The noble Lord, Lord Howell, who is a member of the committee and agreed with its conclusions, spoke of a dangerous and damaging part of a bigger picture; I agree with him. And if that picture still seems damaging and dangerous, we should not be allowing it to go to the House of Commons, or to any other part of this Parliament, without recording our disapproval. The noble Lord, Lord Purvis, in an excellent speech, spoke of manipulation of the evidence of scrutiny of compliance in Rwanda; he is absolutely right. He also spoke, as did others including my noble friend Lord Kerr, of cases in which people are given asylum in this country, in courts a few hundred yards from where we are today, because Rwanda is not a safe place for them to be sent. This is exactly what the Supreme Court concluded, and which has not been refuted by anything that has happened since, despite the efforts that have gone into this treaty.
I suggest that, before we could possibly reject the second Motion before your Lordships today, we need to hear the Minister provide—and I do not mind how long he takes—an answer to every one of the 10 points in paragraph 45 of the committee’s report. It will not do to tell us that we will be written to after the event. The Government should have put in their refutation before we met, and that refutation is not in the Government’s comments of 10 January—published though they are—because they predate the committee’s report.
I have been offended by criticism, some of it aimed at me and others who spoke out on the Rwanda subject, that we are unelected nobodies who are simply put here to obey the rule of the democratically elected House. That is not our role. One of our roles is to protect democracy—sometimes from itself—to ensure that Members of the other place, and indeed Members of our own House, do not overstep the mark and that they do not put us in conflict with the hallowed principle of the separation of powers.
This is not a case of the courts taking on the Government; this is a situation in which the Government have chosen to take on the courts. At the end of the day, what are they actually achieving? We know that only a couple of hundred people at the most would be sent to Rwanda. The Government do not have an aircraft on which they could put them or a pilot who would be prepared to take people who were disturbing the flight on grounds of safety. The cost has now escalated—it goes up every time I hear someone speak. I think it reached £390 million during the speech by the noble Lord, Lord Purvis. This is not what we should be doing, and it is our job to say so, as Members of the House of Lords.
Lord Wolfson of Tredegar (Con)
My Lords, it is a particular pleasure to follow the noble Lord, Lord Carlile of Berriew, who I know will appreciate, although I think he and I will disagree on this topic, that I always listen to anything he says with real care, and often I learn from it. I am very grateful to the noble and learned Lord, Lord Goldsmith, and his illustrious committee for the report, which I have read and reread. I am also grateful to the powers that be for providing time for this debate, which the noble and learned Lord opened with his customary skill and persuasiveness. As judges who find themselves in a minority are wont to say, I have the misfortune to take a different view. So, although I will vote for the first Motion if there is a Division on it, I will vote against the second.
Let me clear one point out of the way first, although it is an important point, about the procedure that lies behind this debate. As my noble friend Lord Sandhurst explained, under the current legislation this House cannot block the treaty. That is as it should be: it would be a significant rewriting of the role of this House for it to block a treaty or to do any such thing. Under the relevant Act, the other place can delay a treaty again and again, but this House has no such power. I accept that there is a real debate to be had about the role that Parliament, and especially the other place, should have with regard to the review and ratification of treaties. This all used to be done under the prerogative, but times have moved on.
My friend—not in the parliamentary sense but in the actual real-world sense—Alexander Horne has co-authored a paper with Professor Hestermeyer on this topic, under the aegis of the Centre for Inclusive Trade Policy, and I am grateful to them for advance sight of it. I do not agree with all the paper’s conclusions—Alex will, I hope, forgive me for saying that—but it is a valuable contribution to an important debate. As my noble friend Lord Howell of Guildford said, our procedures in this context are not replicated in many other countries and may well require review and perhaps updating. But that is not the issue today; the issue today is not our procedures for ratifying and discussing treaties but the treaty itself. As my noble friend Lord Sandhurst noted, the issue is the treaty, not the Bill, which we will debate at Second Reading next week.
I know that many noble Lords do not like the Bill—I look forward to some vigorous and perhaps lengthy debates on the Bill—but next week’s Bill is not today’s topic. We are looking at the treaty, not the Bill, although it is interesting that I have not so far—I think I am the last speaker from the Back Benches—heard a speech today that says, “I like and support the Government’s policy in this area and I will vote for the Bill next week, but I just don’t like this treaty or the way the Government have gone about it”. For some reason, those opposing the treaty also oppose the policy underlying it and will also no doubt oppose the Bill next week.
I suggest that there is nothing objectionable about the treaty, what it does or what it says. It improves the protections as compared with the previous memorandum, not least by providing that persons can be removed from Rwanda to the UK, and only to the UK, thus directly addressing the risk of refoulement that lay at the heart of the Supreme Court’s judgment.
The thrust of the argument of those in support of the second Motion is, “We can’t be sure that the Rwandan Government will actually do what they say they will do”. That is not the view I take, but it is a position that of course I understand, in which case I respectfully say: put some measures into the Bill to make sure that the Rwandan Government live up to their obligations; or, if noble Lords cannot be satisfied by way of such amendments, vote against the Bill. To pick up the metaphor of the noble Lord, Lord Carlile: if you do not like the foundations, do not build the skyscraper—but let us have the argument about the skyscraper, not the foundations.
Before I sit down, I will respond to an important point made by the noble Lord, Lord Purvis of Tweed, which deserves a proper response. He made the point that my noble friend Lord Murray of Blidworth was wrong when he informed the House, when he spoke from the Front Bench, that the view of the United Nations High Commission for Refugees as to the interpretation of the refugee convention was not binding. That was the point that the noble Lord made this afternoon; he has made it before as well. His contention was that it is binding. He also said that the Supreme Court has said that it is binding. He quoted from the decision of the Supreme Court—let me reply to it.
The statement he referred to in the decision of the Supreme Court was that the UNHCR is entrusted with the
“supervision of the interpretation and application of the Refugee Convention”.
The Supreme Court did say that, but that shows that the UNHCR is not itself mandated with giving a binding interpretation of the convention. It does not have that right. Its role is to supervise the interpretation of the convention by the signatory states.
Indeed, the Supreme Court goes on to make that point in the rest of the paragraph from which he quotes, paragraph 64 of the judgment. The Supreme Court goes on to say, citing its own decision in the case of Al-Sirri in 2013, that the UNHCR’s guidance—note that word, guidance—as to the interpretation of the convention
“should be accorded considerable weight”.
So it should, but when judges say that something should be accorded considerable weight, they are necessarily saying that it is not binding. The UNHCR does not hold the pen on the interpretation of the convention. That was the point that my noble friend Lord Murray of Blidworth made, and indeed it is a point that I have made on previous occasions.
I am very happy to give way to the noble Lord.
Lord Purvis of Tweed (LD)
I am grateful, since the noble Lord mentioned me, because I know interventions are unusual in this debate. I quoted the noble Lord, Lord Murray, word for word from Hansard when he said:
“The UNHCR is … a UN body; it is not charged with the interpretation of the … convention”.—[Official Report, 24/5/23; col. 968.]
The Supreme Court disagreed very clearly. I did not insert the word “binding”; Hansard will show that. I quoted like for like, and I think the Supreme Court’s position was perfectly clear that the noble Lord, Lord Murray, was wrong.
Lord Wolfson of Tredegar (Con)
I know that this is a legalistic point, but that is the thing about the Supreme Court: it tends to make them. It went out of its way to say that the UNHCR is not interpreting the convention; it is supervising the interpretation of the convention by the signatory states. That may seem to be a subtle distinction, but it is critical, because it remains the right of the states themselves to interpret the convention. At least we have managed to have one intervention in this afternoon’s debate. That exchange has shown that we can all look forward to some interesting and vigorous debates next week and thereafter—but that is not today’s business.
I invite the House not to take a sideswipe at the policy—or, in advance, at the Bill—by way of the second Motion. Of course, we should support the first Motion, but I urge the House to vote against the second Motion.
Baroness Kingsmill (Lab)
My Lords, I am grateful for the indulgence of the House for allowing me a few minutes in the gap before the parties’ Front-Benchers speak. I was very lucky and grateful to be a member of the International Agreements Committee, and I was very pleased to be under the chairmanship of the noble and learned Lord, Lord Goldsmith.
I will make some brief points. It is important to understand that Rwanda is a country with a tragic past—but it is trying its best to overcome that. It has made significant progress in that respect: it is a member of the Commonwealth and is committed to free and fair elections and to the rule of law. However, it is a very poor country, and it lacks the capacity to fulfil the demands made on it by this treaty. It simply cannot do so in the immediate or mid-term future; it does not have the capacity or money. It has the willingness to do it, and with the support of this country and perhaps others, it may get it done sooner or later. But right now, it simply does not have that capacity.
We must think about that, because we too do not have the capacity to deal properly with our immigration. There are significant shortages of judges, which the courts feel all the time. The waiting lists for dealing with such cases are growing by the day. The appeals process has well over 2,000 people waiting to have their appeals heard. We lack the capacity, so for us to think that we can impose this kind of behaviour on a developing country such as Rwanda is asking a great deal.
I will not detain the House any longer; I am only allowed two minutes, so I will give way to another member of my committee.
Lord Fox (LD)
My Lords, it is a great pleasure to speak in this debate, where we have heard many excellent, informed and expert views on this issue. As a member of the International Agreements Committee—as the noble Baroness, Lady Kingsmill, pointed out—I will try to move our focus back on to the report and the two Motions.
As the noble and learned Lord, Lord Goldsmith, and his predecessor as chair, the noble Baroness, Lady Hayter, set out, if we needed a demonstration of the shortcomings of the CRaG process, this is indeed it—albeit the first time it has ever reached your Lordships’ House. As a member of the committee, I realise how little time CRaG gives us to scrutinise something as important as this treaty. Nevertheless, thanks to our colleagues, the committee and the tireless work of the clerks, advisers and administrative team, we produced this report, which I and all the other members of the committee wholeheartedly support.
I will address an element that came up from, I think, the noble Lord, Lord Sandhurst—although I may have inferred something that he did not mean. There seemed to be an inference that because we did not comment on something, we agreed with it—a sense of “silence is assent”. I undertake that, as a committee, we adopted a very specific focus: we did not seek to determine the morality of the Rwanda deportation concept; we did not analyse the applicability and cost-effectiveness of the scheme; we did not examine whether the central deterrence theory has any validity; and we did not probe how, in conjunction with the Bill—I look at the noble Lord, Lord Wolfson, in saying this—it affects the constitution and our international reputation.
As your Lordships will have gleaned from the excellent speeches from my noble friends, we on these Benches believe that the Rwandan scheme is a politically partisan, immoral proposal that is neither cost-effective nor achievable. We think the deterrence theory is unproven and, in any case, too high a price for breaking the constitution and dragging our international reputation through the mud. But no, this report did not look in those directions. The committee took a simple approach of examining the journey from the memorandum of understanding to the treaty, via the Supreme Court judgment. It tested the claims made by the Government for the treaty. As the only parliamentary committee doing such scrutiny, I am delighted that the noble and learned Lord, Lord Goldsmith, has laid this Section 20 Motion. This is our only power under CRaG, and I am pleased that we are seeking to apply it.
In mid-November, the Supreme Court found that the Rwanda policy, as expressed through the MoU, was unlawful. As we have heard, the basis for the ruling was that Rwanda is not a safe country in this context. The Supreme Court was clear—so clear, in fact, that it revealed a range of institutional, legal and procedural measures that needed to be in place to render the country safe enough for the Rwanda policy to be lawful. As the Secretary of State, James Cleverly, says in the policy statement document, the Government produced a policy that
“carefully considers and responds to the Supreme Court’s judgment”,
adding that the policy statement
“should be read alongside the treaty”.
During his evidence to the committee, the Home Secretary repeatedly took the line that because the words in the treaty meet the requirements of the Supreme Court, Rwanda will be a safe location to achieve the Government’s ends. As he said,
“Once the treaty has gone through the legitimate democratic process, in Westminster and Kigali, we can legitimately say that their”—
the courts’—
“concerns have been addressed”.
As an aside, I would ask, as others have: if his confidence really was that strong, why is the Bill necessary? If, as he suggests, the Supreme Court’s demands have been satisfied by the treaty, why turn the constitution on its head to keep judges away from making a ruling? But that is a debate for another day.
The committee’s report does not question the integrity or the willingness of the Rwandans to deliver on this treaty. It does, however, review in detail what needs to be done in Rwanda—on the ground, not just on paper, but actually existing and operating. We can see from the evidence presented to the committee that much needs to be achieved to meet the terms of the treaty—much to be achieved, therefore, to meet the Supreme Court’s criteria for a legally safe process.
While giving evidence to the committee, Secretary of State Cleverly was unable to put a timeframe on the achievement of those activities. He did not furnish a copy of the law that must be passed in Kigali. He was generally very light on detail, but he asserted that it could all happen quite quickly. In paragraph 45 of the report, the committee set out 10 paramount legal, practical steps that have to be implemented to properly meet the terms of the treaty. As your Lordships will have seen, this involves passing laws, setting up new processes and appointing and recruiting a wide range of people, as well as training them. None of this is trivial, or indeed routine.
Given the importance to the legality of the scheme of these 10 measures, James Cleverly was asked to confirm that the Government would not ratify this treaty until they were satisfied that the agreement had been fully implemented. Given what he had said moments before, his answer was quite curious and a little surprising. I make no apology for quoting the Secretary of State’s words, because they perhaps demonstrate a little lucidity for a moment.
James Cleverly said:
“We have a process that we are running through. They”—
the Rwandans—
“have a process that they are running through. The point is that we will not operationalise this scheme until we are confident that the measures underpinning the treaty have been put in place; otherwise, the treaty is not credible”.
I repeat his words for emphasis. He said that
“we will not operationalise this scheme until we are confident that the measures underpinning the treaty have been put in place”.
Clearly, he has some doubts, but never mind. I suggest that there is very little difference between waiting for the conditions to be operationalised and meeting the conditions of this Motion. Both require evidence that the treaty’s requirements are in place and operational on the ground; the difference is that this Motion expects Parliament to be involved in that process. We, as noble Lords, should always protect Parliament’s role in making decisions such as this.
If the Secretary of State’s confidence is demonstrated, it will not in fact take very long; he said that it might not take very long. If that is the case, we will not have to wait long for this process to be operationalised. I must say, as many of your Lordships have set out, there is a strong belief that the Home Secretary may have understated the scale of the challenge and underestimated the time it might take for all these things to happen. None of the evidence we received suggested that the 10 criteria set out in the report can be realised with any degree of speed.
Leaving aside the moral, financial and constitutional issues surrounding this treaty and its accompanying Bill, focusing instead on the necessarily narrow grounds adopted by our committee, there is more than enough reason to delay the ratification of the treaty until the conditions for its lawful operation are in place. We support the Motions in the name of the noble and learned Lord, Lord Goldsmith, and will take that support through the Lobby if he chooses, as I hope he will, to move them.
Lord Coaker (Lab)
My Lords, here we go again on Rwanda, with the treaty today and the Bill next week. Both are inextricably intertwined as the treaty is how Rwanda has been designated “safe”. I start by thanking my noble and learned friend Lord Goldsmith and his committee for a truly outstanding report, which has enabled us to have the discussion and debate we have had today. Should my noble and learned friend press both of his Motions to a vote, we will support him in the Lobbies.
I want to pick up the important point made by the noble Lord, Lord Carlile, and my noble friend Lady Chakrabarti. What we have seen today is not the House of Lords seeking to block, to act in an anti-democratic way or to do anything other than its job, which is to say to the Government, “You should think again and reflect on what you are doing”, where we believe that to be true. As a revising and advisory Chamber, that is absolutely what we should be doing; nobody, least of all the Prime Minister, should hold press conferences lecturing us about our role when all we seek to do is improve things and act in our proper constitutional role. The Prime Minister should remember that and be reminded of it.
What gives the strength to my noble and learned friend Lord Goldsmith’s report? In his usual understated way, my noble and learned friend started by saying that he was not standing here as a Labour Lord. He is quite right to make that point. He chairs an important committee of your Lordships’ House. The importance of what my noble and learned friend said is this: he stood here as the chair of a committee that has all-party support for the report that it has brought forward. It is not a Conservative, Labour, Cross-Bench or Liberal Democrat report; it is a report of your Lordships’ House, which believes that it set out what it was important for the Government to do.
That is what gives the report its strength and power—the fact that a unity of purpose, from all sides of this Chamber, has come together not to block the treaty, as one or two have suggested, but to ask the Government to delay it. At the heart of the Motion that my noble and learned friend Lord Goldsmith has brought before us, as the report says, is the necessity for us to ensure that the treaty meets the issues that were highlighted by the Supreme Court. Of course, we all agree with and welcome that, and the treaty needs to be examined in that way.
The report clearly asks how we will know that these conditions are being met. That is the fundamental part of the debate before us. Is Rwanda safe now? This is the point that the noble Lord, Lord Anderson, made. We can argue around it all we want, but the fundamental question is: do we have a country that is safe with which we are establishing this treaty? The report says that we cannot be sure; we do not know. Why do we not know? The Government have not provided the committee or this House the evidence to ensure that we make a judgment on whether that is right.
In the excellent remarks of the noble Lord, Lord Fox, he put paragraph 45 of the report before us, which lists the 10 steps. The noble Lords, Lord Carlile and Lord Kerr, and others mentioned this. Your Lordships should answer this: we are being asked to say that Rwanda is safe and this is what the report says we need to know.
A “new asylum law” is needed in Rwanda. Has anybody seen it? Does anybody have any idea what it is, as the treaty is dependent on it? Can the Minister explain
“a system for ensuring that non-refoulement does not take place”?
What is
“a process for submitting individual complaints to the Monitoring Committee”?
The committee has no idea; it is asking for this. The
“recruitment of a Monitoring Committee support team”
has not yet been done. Has
“the appointment of independent experts to advise the asylum First Instance and Appeals Bodies”
been done? What about
“the appointment of international judges”?
We do not know how many we want or are needed, for a start, let alone whether they have been recruited. We also need
“training for international judges in Rwandan law and practice”.
For each of these things, the Government have not provided evidence, to either the committee or your Lordships’ House, to support what the committee says needs to be done. How can we determine whether Rwanda is safe, when the very things on which that depends have not been provided to us? That is what the committee is saying. If we want to do that, we surely need to know whether those conditions have been met. The Minister needs to answer this.
The Government have been assured that all is well, but my question to them is: is assurance really enough when it comes to an international treaty? The Rwandan Government say all is well, but the committee says that
“assurances in themselves are not proof of Rwanda’s current ability to fulfil them”.
I could not agree more and the Government need to answer why they think assurances are proof when the committee is saying that they are not.
If everything is okay with respect to Rwanda, can the Minister explain, as a number of noble Lords have laid out, why six people from that country have been given asylum since the original MoU was signed in the summer of 2022? Is Rwanda a safe country when we have had to give its people asylum, even though it is a small number?
I know that we are sometimes supposed to say that our obligations under international law and treaties do not matter. I, for one, say, as do many across this Chamber, that what the UNHCR says is important. What the UNHCR thinks about the Rwanda treaty and the law that may follow it—but we are debating the Rwanda treaty—is a really important test of whether we have got this right. What does it say? The UNHCR finds the UK-Rwanda Agreement and the safety of Rwanda Bill to be
“not compatible with international refugee law”.
That is a troubling judgment, made on us by a significant body. People say it does not matter, but it does. I think it was the noble Lords, Lord Kerr and Lord Hannay, who talked about our global reputation. We are all proud of it, but things like this do not help. Across the world we are standing up for the role of international bodies and international law. What are we doing in Ukraine, the Middle East and other parts of the world if not standing up for international law and treaties? Yet, one of the most significant global bodies is questioning whether we have got this right.
I think it was my noble friend Baroness Hayter who mentioned that many times it is said, “Well, this is just your Lordships’ House”. It is worth remembering it was not only a committee of this House that pointed out that there should be a proper debate about the treaty. The House of Commons Home Affairs Select Committee said that there should be a debate and discussion. An all-party group said that such is the significance, importance and relevance of this to a Government policy that it should be discussed in Parliament. There is disquiet, upset and unease not just here but in the other place at the fact that the treaty may be ratified without the significant discussion that needs to take place.
My noble and learned friend Lord Goldsmith has done a real service to your Lordships’ House in enabling us to have this discussion and at least ask the Government to think whether they have got this right, whether they want to ratify a treaty without the due consideration and proper process it deserves, and to answer the many real questions put to them today. It has enabled us not to block it, but simply to allow your Lordships to play your part by asking the Government to answer serious questions about the evidence they need to provide in their declaration that Rwanda is a safe country.
I hope that my noble and learned friend puts his second Motion to the vote, because we will support it and be proud to do so.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I am grateful for this debate and all the contributions that have been made.
The Rwanda partnership and the treaty underpinning it, providing its foundations, if you will, is critical to the Government’s plan to establish an effective deterrent to dangerous crossings and to stop the boats. It is a topic that has been closely scrutinised in the weeks since the Supreme Court judgment, and I have little doubt that that will continue to be the case in the days and weeks ahead. That is not to say that this debate has any less merit. On the contrary, it has been instructive and insightful to have the committee’s report brought to life.
I will address the various issues that noble Lords have raised today and respond to some of the conclusions in the committee’s report and to the Motion moved by the noble and learned Lord, Lord Goldsmith, although I recognise that my time here is limited.
First, it is worth taking a moment to remind the House of what this policy is trying to achieve and its journey to this point. The UK has a track record of providing protection to those most in need of it through our safe and legal routes, with over half a million people coming to the UK in this way since 2015. We are rightly proud of that, but we also need to be clear that illegal migration diverts resources away from the effort to help the world’s most desperate and vulnerable people through safe and legal routes.
In short, the Rwanda partnership was created to enhance the UK’s efforts to tackle illegal migration, which is costly to the British taxpayer and imperils the lives of those making highly dangerous journeys. Our innovative approach goes hand in hand with our existing wider work across Europe and elsewhere, which has seen many thousands of crossings prevented and the number of arrivals fall by more than a third.
The noble Lords, Lord Fox and Lord Razzall, and the noble Baroness, Lady Lister, asked about the deterrent effect. The partnership is just one tool in our toolbox to tackle illegal migration, but we are making progress with our mission. As I said, the number of arrivals were down by a third—the first year that numbers have dropped since this problem started—while crossings to other European countries are up by 80%.
But we must go further: to fully solve this problem, we need a strong deterrent. As our work with the Albanian Government shows, deterrence works, and I thank the noble Lord, Lord Alton, for acknowledging that. Only by removing the prospect that illegal migrants can settle in the UK can we control our borders and save lives at sea—by sending the clear message that if you try to come here illegally and have no right to stay here, you will be returned home or removed to a safe third country. This will break the business model of the trafficking and smuggling gangs by removing the ability to sell entry into the UK. Of course, the deterrent effect of the MEDP will be fully realised once it becomes operational.
We are also taking action to crack down on the mafia-like criminal gangs, as the noble Lord, Lord Alton, described them, which prey on those seeking to cross the channel. That work continues, particularly in collaboration with the French. But this is also a comprehensive strategy, and we have to build on the progress we have made, which is where the Rwanda partnership comes in.
Noble Lords are well aware of the journey this policy has taken through the courts. We know the underlying principle of the policy—to relocate eligible individuals from the UK to a safe third country to have their asylum claims determined there—to be lawful and compliant with the refugee convention; the Supreme Court did not disturb the lower courts’ finding on that point. The IAC’s inquiry focused on how the agreement we now have protects those relocated to Rwanda and whether it deals with the concerns raised by the Supreme Court.
It is not right to say we have made these changes “notwithstanding” the Supreme Court; we respect the court and the rule of law. It is because of the Supreme Court’s judgment that we have made these changes. Having considered evidence submitted only up to summer 2022, the Supreme Court recognised changes that could be made to address its findings, improve the Rwandan asylum system and strengthen assurances. Significant and successful work has taken place with Rwanda since the time of that evidence to do just that.
The treaty does not override the court’s judgment; rather, it responds to it. And these are not “alternative facts”, as alleged by the noble Lord, Lord Purvis. It is perfectly constitutionally appropriate for Parliament to consider the protections we have secured and conclude that Rwanda will be safe for the purposes of asylum. Through the treaty, and associated work highlighted in the policy statement, we have addressed every point of the Supreme Court judgment.
I will highlight just some of the provisions of the treaty. There is a full package of support available for all those relocated, regardless of their eventual status. Everyone relocated will be accommodated and supported for five years, as long as they remain, so that they can study, undertake training and work. They will also have access to free healthcare for this time. Steps are being taken to further strengthen Rwanda’s asylum system, and a new appeals body is being introduced. New legislation is being developed in Rwanda to reflect the necessary changes to strengthen the asylum system, to fulfil their obligations and ensure all those relocated are protected. The appeal body will be co-chaired by one Rwandan and one other Commonwealth judge, who will select a panel of judges from a mix of nationalities to hear these appeals against refusals of asylum or humanitarian protection claims. For at least the first 12 months, the appeal body shall receive and take into account advice from independent asylum and humanitarian protection law experts before determining the appeal, and this expert opinion will be published. The establishing of the new appeals process ensures that the final determination of an asylum claim will be objective and independent, and this level of transparency makes clear our and Rwanda’s commitment to getting this right.
Crucially, there is absolutely no risk of refoulement for anyone relocated, regardless of status or circumstance, because the treaty is clear that under no circumstances will refoulement take place. The enhanced independent monitoring committee will have unfettered access to the entire system in order rigorously to assess both countries’ adherence to these obligations under the treaty.
I was asked a number of questions about the monitoring committee, which I will address. Before I go back to those, I point out that, regarding the appeals body, I did not talk about the tracking mechanism. I will come back to that, because nobody will be relocated without the necessary mechanisms for their protection being in place, in terms of the independent monitoring committee.
We have addressed explicitly the risk of refoulement through the treaty, which contains an undertaking from the Government of Rwanda that they will not remove anybody who has transferred from the UK to Rwanda. The treaty also enhances the role of the independent monitoring committee, as I have just said. Article 15 makes specific provision that enhanced monitoring will take place for a minimum of three months from the date the individual is notified that they are being relocated. The monitoring committee will ensure that obligations under the treaty are adhered to in practice and will be able to take steps to prevent errors at an early stage through real-time monitoring. The monitoring committee will provide real-time comprehensive monitoring, with an initial period of enhanced monitoring over the end-to-end relocation and claims process to ensure compliance with treaty obligations.
The monitoring committee will have the power to set its own priority areas for monitoring. It will have unfettered access for the purposes of completing assessment reports. It can monitor the entire relocation process from the beginning, from the initial screening to relocation and settlement in Rwanda. It will be responsible for developing a system to enable relocated individuals and legal representatives to lodge confidential complaints directly to the committee and will undertake real-time monitoring of the partnership for at least the first three months, but this can be extended. Then the monitoring committee will report on its findings to the joint committee and, following notification to the joint committee, it may publish reports as it sees fit.
These are significant protections, and they have been agreed in an internationally, legally binding treaty which the UK and Rwanda will abide by.
Lord Carlile of Berriew (CB)
I am grateful to the Minister for giving way. He has been very helpful, as he usually is. He has been going through the 10 items in paragraph 45, but he has not given a timeline for any of them. Will he give us a timeline for when those 10 items will be completed and an undertaking that nobody will be taken to Rwanda until they have all been completed and implemented?
Lord Sharpe of Epsom (Con)
If the noble Lord will indulge me, I have a long way to go and I hope to get to all of his questions.
To question the treaty’s effect is to question both parties’ commitment to the rule of law, so I am grateful to my noble friends Lord Howell, Lord Sandhurst and Lord Wolfson, who made some very good points on this. I was sorry, but not particularly surprised, to hear the noble Baroness, Lady Bennett, cast aspersions in the direction of Rwanda.
Again, I thank the IAC for its report, to which we will respond in writing as a priority; but I must be clear that the Government intend to see the conventional Constitutional Reform and Governance Act process through to the end, as normal. The Government recognise the intent behind the Motion, but we believe it is unnecessary and misguided. The Motion in question is completely unprecedented, as the noble and learned Lord, Lord Goldsmith, noted, and, with all due and sincere respect to the noble and learned Lord, a mischaracterisation of the process. It is unnecessary as it is completely usual for Parliament to complete its scrutiny of a treaty and for the CRaG process to end before a treaty has been implemented. In just one example of this, the free trade agreements that the UK signed with Australia and New Zealand in 2021 and 2022 were laid before Parliament for scrutiny, and in both cases legislative changes were required to implement the obligations in the agreements; those changes were introduced in parallel. The scrutiny debates happened and the CRaG process ended long before those treaties were implemented. The implementing primary and secondary legislation measures were put in place and the treaties were brought into force in early 2023.
It is for any Government to decide, ahead of ratification of any treaty, whether the implementation required for the UK to be legally compliant with its treaty obligations has been duly put in place. I do not believe that the two debates should be confused, as they have been. We urge noble Lords to support the Government in their plans for the treaty to be implemented and ratified by both countries in due course. We have been clear throughout the development of this partnership that Rwanda and the UK must place the utmost importance on the safety of all those who are relocated. The mechanisms in place will ensure that both parties adhere to the obligations under the internationally legally binding treaty. It is vital that we stop the boats as soon as possible. The British people clearly do not want to see any further delay.
It would be remiss of me not to mention at this point the Safety of Rwanda (Asylum and Immigration) Bill, which will reach this House next week and ties in closely with what I have just said. This Bill sits above existing statutory provisions to enable Parliament to conclude that Rwanda is a safe country. The supporting evidence pack, which was released on 11 January, and the supporting policy statement, first given on 12 December, go into great detail concerning the information that gives us the confidence to say that Rwanda is safe. I look forward to noble Lords’ support for the Bill at Second Reading next week.
It is true that Parliament is being invited to conclude that Rwanda is safe based on this treaty and other matters, but that is not what is being debated today. We are debating whether there is anything in this treaty that means it should not be ratified, as my noble friend Lord Wolfson noted. The IAC has made some points about the treaty, but fundamentally it has not identified anything objectionable in the treaty itself. A debate on whether Parliament considers Rwanda safe is a debate that should and will happen in depth in the coming weeks as part of the scrutiny of the Bill. The IAC’s report concludes that the treaty might in time provide the basis for such an assessment—that is, that Rwanda is safe—if it is rigorously implemented. The Government’s position is that the treaty provides that basis, so we invite noble Lords to reject the Motion today and recognise that standard procedure should be followed. Once the treaty is ratified and the Bill passed, we can begin to operationalise the partnership.
I will now try to answer some of the more specific questions to do with the deterrence of the partnership. It was never about Rwanda or any other partner country being a hellhole, as described by the noble Lord, Lord Razzall, which I find quite offensive. It is about organised criminal gangs not being able to sell the UK as a destination. Only by removing the prospect that illegal migrants can settle in the UK can we control our borders and save lives at sea. By sending the clear message that if you try to come here illegally and have no right to stay here you will be returned home or removed to a safe third country we can break the business model of the trafficking and smuggling gangs.
The noble Lord, Lord Hannay, asked me about international comparisons as regards treaty scrutiny. The Government believe that 21 joint sitting days, which in parliamentary terms is likely to be a minimum of five weeks and often somewhat longer, is sufficient for Parliament to scrutinise a treaty. It is difficult to make comparisons between governmental systems, even with other parliamentary democracies, as each has evolved over time in line with its constitutional arrangements, which differ from one state to another. Each system reflects the constitutional make-up and separation of powers in that country. When similar parliamentary democracies are compared with ours, it is clear that our practice is in many respects similar to systems such as those of Canada, Australia and New Zealand. We consider that in many respects our system is in fact stronger than theirs, not least due to the existence in the UK of a statutory framework for treaty scrutiny.
The noble Lord, Lord Kerr, referred to the Supreme Court and Israel and the various comments that have been made about its agreement with Rwanda. We do not agree that it sets a relevant precedent or implies that Rwanda will not adhere to its obligations under our treaty. The terms of the arrangements between Israel and Rwanda are not available for scrutiny, are not transparent and are not monitored in the way that ours are. The scheme referenced was voluntary and open-ended and did not openly commit to guaranteed acceptance or a custodial role on the part of Rwanda. So on the information known, it bears little resemblance to the UK-Rwanda treaty and the lessons there are not directly applicable.
The noble Baroness, Lady Lister, asked a number of questions about children. Article 3 states:
“The Agreement does not cover unaccompanied children and the United Kingdom confirms that it shall not seek to relocate unaccompanied individuals who are deemed to be under the age of 18”.
The treaty does, however, provide for the relocation of children as part of a family. It should be noted that this does not constitute a policy change and is consistent with the principles of the extant memorandum of understanding. I urge those with family links in the UK to seek to come here via the existing safe and legal routes.
Baroness Lister of Burtersett (Lab)
I am sorry to interrupt but I asked specifically about age-disputed children, where the protections seem to be less than they were under the original memorandum of understanding.
Lord Sharpe of Epsom (Con)
I was just getting to that. As regards children where the age-assessment results are not conclusive, the Home Office will treat an individual claiming to be a child as an adult only after further inquiries by two officers, one of at least chief immigration officer grade or equivalent, have separately determined that the individual’s physical appearance and demeanour very strongly suggest they are significantly over 18 years of age.
The lawfulness of this process was recently fully endorsed by the Supreme Court in the case of BF (Eritrea) from 2021. If doubt remains about whether the claimant is an adult or a child, they are treated as a child for immigration purposes until a further assessment of their age by a local authority or the National Age Assessment Board. This will usually entail a careful holistic age assessment, known as a Merton-compliant age assessment. Only once this assessment is completed could the individual then be treated as an adult if found to be so.
Under the Illegal Migration Act, those wishing to challenge a decision on age will be able to do so through judicial review, although these challenges are non-suspensive and can continue from outside the UK after an applicant has been removed. The treaty provides for the return of anyone who is removed as an adult and later determined to be a child, and appropriate temporary care of such an individual.
A number of noble Lords have referred to the UNHCR report. The first thing to state is that the Government are not abdicating responsibilities, as alluded to by the UNHCR, and as suggested by the noble Lord, Lord Alton, and the noble Baroness, Lady Hayter. This is a partnership with Rwanda, helping to make the immigration system fairer and ensuring that people are safe and enjoying new opportunities to flourish.
As this Government have made clear, tackling the issue of illegal migration requires bold and innovative solutions, and our partnership with Rwanda offers that. Rwanda is a safe country that cares deeply about refugees and currently hosts over 130,000 asylum seekers. Indeed, the UNHCR has signed an agreement with the Government of Rwanda and the African Union to continue the operations of the emergency transit mechanism centre in Rwanda. By temporarily accommodating some of the most vulnerable refugee populations, who have faced trauma, detentions and violence, Rwanda has showcased its willingness and ability to work collaboratively to provide solutions to refugee situations and crises. This agreement has also attracted EU funding, which will support the continued operation of the ETM until 2026.
The Home Office has granted refugee status to nationals from Rwanda, as noted by the noble Lords, Lord Coaker, Lord Kerr and Lord Hannay, and the noble Baroness, Lady Lister. How then can we say Rwanda is safe? People from many different nationalities apply for asylum in the UK. They include nationals from some of our closest European neighbours and other safe countries around the world.
Each case is considered on its individual merits by caseworkers who receive extensive training. All available evidence is carefully and sensitively considered in light of published country information. Asylum decision-makers carefully consider everyone’s protection needs regardless of nationality by assessing all the evidence provided by the claimant, in light of the latest available country-of-origin information. Asylum claims made by persons from Rwanda will have an individual assessment made against the background of relevant case law, policy guidance and the latest available country-of-origin information. Paragraphs 339J and 339JA of the Immigration Rules require decision-makers to take into account all relevant country-of-origin information in making their decision.
The noble Lord, Lord Alton, and the noble Baroness, Lady Lawlor, asked about the Home Secretary and the signing of the Section 19(1)(b) human rights statement. This does not mean that the legislation is incompatible with the ECHR. It means that the Home Secretary cannot say that it is more likely to be compatible than not. That is the consequence of this being an ambitious and novel Bill, which is what is needed to fulfil our commitment to tackle the small boats. There is nothing improper or unprecedented about pursuing ambitious and innovative ways of solving such endemic issues as migration. We believe that it is lawful and we are acting in compliance with our international obligations.
The Supreme Court’s judgment was made on the basis of the facts in June 2022.
Baroness O'Loan (CB)
Before the Minister sits down, could he explain to your Lordships why, if the Government believe this Bill is lawful, the Minister is unable to say that it is lawful?
Lord Sharpe of Epsom (Con)
My Lords, I think I just did. I will go over it again. As I said, the Home Secretary, cannot say that it is more likely to be compatible than not. That is not the same as the question that the noble Baroness just asked me. This is the consequence of it being an ambitious and novel Bill. There is nothing improper or unprecedented about pursuing ambitious and innovative ways of solving such issues. We believe that it is lawful and we are acting in compliance with our international obligations.
The Supreme Court’s judgment was made on the basis of the facts in June 2022 when the case was brought. It made clear that, while it had concerns about the arrangements in place in June 2022, changes to safeguard against risks “may be delivered in the future”.
The UK’s treaty with Rwanda responds comprehensively to the court’s concerns. It provides a binding guarantee in international law against refoulement and provides guarantees about the treatment of relocated individuals in Rwanda. It reflects the work that we and the Rwandan Government have completed in the 18 months since June 2022 and, once ratified, it ensures that no one will be sent into a position where they would face a real risk of harm.
As the noble and learned Lord, Lord Goldsmith, noted, it is unprecedented for the House of Lords to place conditions on an international treaty in this way. Never in the history of the Constitutional Reform and Governance Act 2010 has either House forced a vote to try to delay the ratification of a treaty until its provisions have been implemented.
Lord Carlile of Berriew (CB)
I am sorry to be naggy, but I think the Minister got close to promising me an answer to my simple question about when, in relation to paragraph 5. Can we have that answer before he sits down?
Lord Sharpe of Epsom (Con)
The answer to the noble Lord, Lord Carlile, is when we have the treaty and the Bill, and the Rwandans have passed their laws. That is when.
As I was saying, this begs the question: is Labour using the House of Lords to try to frustrate our plan to stop the boats?
Lord Sharpe of Epsom (Con)
Last week the Prime Minister urged the Opposition in the House of Lords to get on board and do the right thing to stop the boats. They have a choice tonight: push this amendment to try to obstruct an effective deterrent or back down and let the treaty pass, like every time this procedure has been used before.
I offer thanks again to all who have participated. We must stop the boats. We must put an end to this mass trafficking of people and save lives. That is the humane and fair thing to do, and it is why we remain absolutely committed to delivering this partnership without delay.
Lord Goldsmith (Lab)
My Lords, I very much resent that last piece from the Minister. I presented this on the basis that it was the view not of the Labour Party but of the committee as a whole. I have tried to be completely unpolitical in what I have said, and it is a great shame that the Minister should choose to make that particular observation towards the end of his speech.
I thank all noble Lords who have participated in this debate, with so many powerful and insightful thoughts from your Lordships. There is not time to comment on them all, but I will touch on two questions. One is the powers of this House and the second is the question before us.
As to the powers of this House, there was some suggestion—I am afraid to say that to some extent it seemed to come out in the speeches of the noble Lords, Lord Sandhurst and Lord Wolfson, both of whom know that I very much admire and respect them—that there is something improper in asking this House to do what I am asking it to do today. It is clear that we do not have the power to delay or block the treaty, but we can pass a resolution, if we so agree, that it should not be ratified at the moment. That is all I have asked, and I will ask for a vote on that later but this is not the moment for that. It is not right to say that that is improper; the statute itself provides in Section 20 that we can pass that resolution, so it is not satisfactory at all for anyone to suggest that doing that is inappropriate. The House has one power, and that is all we are asking it to do.
I come back to the question, because it is important; I dealt with it in my opening remarks. One finds out the question that we were dealing with by looking at the foreword by the Home Secretary to the policy paper that he put forward. I repeat: “This work”—the work is the treaty and associated things—
“will enable Parliament to conclude that the Supreme Court’s judgment has been addressed and that Rwanda is safe for relocations under the Migration and Economic Development Partnership”.
I say to the noble Lord, Lord Howell of Guildford, who knows I very much respect him and appreciate the work he has done on the committee, that that is what safety means: safety from relocations under that partnership. That is what it means, that is what we were looking at and that is where we were unable to reach a conclusion.
The noble Lord, Lord Fox, and my noble friend Lord Coaker were right: the question is not whether there is a willingness to do this or whether the policy is right but whether the instruments are in place at the moment to achieve that result. I will make one slight amendment to that: the procedures to make this possible—the 10 points in paragraph 45—are not things that we thought up but are what the Government say are going to happen. All we are saying is that those things ought to be in place before the final statement is made by Parliament that the policy is safe. Once it is done, and once the Government ratify, that is the end. That is why it is important, in my submission, to follow what the committee decided unanimously—that the treaty should not be ratified until those things are in place.
Let me give one example. Emphasis was rightly placed on the principle of non-refoulement—the Minister referred to that. But he will recall, and the House will recall, that one of the ways in which that is supposed to be protected—it is set out in the treaty—is that an agreement will be reached between Rwanda and this country as to what the procedures are to effect it. It is not in place. As I said in my opening speech, we do not know when it will be in place, although we asked about it.
So I will now ask for the Question on the first Motion to be put and then we will come to the vote on the second Motion.