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The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, as is usual on these occasions, I must advise the Grand Committee that if there is a Division in the Chamber while we are sitting—I am told that that is unlikely—the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Digital Markets, Competition and Consumers Bill
Monday 29th January 2024
(10 months, 3 weeks ago)
Grand CommitteeRead Full debate Digital Markets, Competition and Consumers Act 2024 View all Digital Markets, Competition and Consumers Act 2024 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 12-IV Fourth marshalled list for Grand Committee - (29 Jan 2024)
Member's explanatory statement
This amendment, alongside others in my name to Clauses 89 and 103, would revert the relevant Clauses back to the ones first introduced in the House of Commons. This would reinstate judicial review principles as the means by which appeals against penalty decisions are heard, rather than such decisions being determined on the merits.
Baroness Jones of Whitchurch (Lab)
My Lords, in rising to move Amendment 64, I will also speak to Amendments 65, 67, 71 and 72. I thank the noble Lord, Lord Clement-Jones, and the noble Baronesses, Lady Harding and Lady Kidron, for their support. The noble Baroness, Lady Kidron, cannot be here and sends her apologies, but she asked me to stress her absolute support for this amendment. I have added my name to Amendment 66, in the name of the noble Baroness, Lady Stowell, and I look forward to hearing from the noble Lords, Lord Holmes and Lord Tyrie, who, I am sure, will make important contributions shortly in support of their amendments. All our amendments would revert the appeals process back to judicial review principles for resolving appeals against penalty decisions, unlike the late government amendments, which substituted merit reviews.
This debate follows on from last week’s excellent debate on the impact of making CMA decisions proportionate and strengthening the right of SMS firms to argue for countervailing benefits to be taken into account. The issue of judicial review versus merit appeals goes to the heart of the argument about achieving the right balance between the rights of SMS and challenger firms. Of all the many submissions we have received on the Bill, this has received the most attention—from those on both sides of the argument—and we have taken note of all those views.
The Government’s amendments matter, because penalties such as fines are the most significant deterrent in preventing strategic market status companies breaking the conduct requirements established by the CMA. There is real concern that, under the new wording, SMS firms will use the appeals process to delay implementation of the fines and thereby reduce their incentives to comply with the order. Also, as the fines do not have to be paid until any legal challenges are finally resolved, there is an incentive to drag out the final decision through the courts. The fact that they have lobbied for these changes raises real questions about their motivation in pursuing this.
When we met with one of the potential SMS firms recently, it argued that the new regime gave the CMA too much power and that a merit appeal process was the only way to provide a check against misguided or ill-informed decisions. It has also been argued that the Furman review recommended that any loss of the right to merit reviews should be coupled with an enhanced role for independent decision-making to protect against executive overreach. We accept that this new regime does give the CMA significant new powers, and this has already been a theme of our debates, but we would argue that the scrutiny of whether it is carrying out its duties effectively should be through Parliament, not through individual costly legal cases going to merit review.
We are supporting several amendments to the Bill that would enhance Parliament’s oversight of the CMA’s activities. In addition, it is important that the CMA explain its decisions in detailed written reports and disclose its underlying data to interested parties in order to allow them to identify errors. All this would help to shore up scrutiny of its decisions.
As the CMA itself argued in giving evidence to the Commons committee, judicial review is the established system for much of its work, including merger control and market investigations. It also applies to a number of other regulators. The advantage is that it avoids protracted litigation and encourages engagement early on, with constructive and collaborative outcomes. We agree with this approach, which is why we believe that appeals through judicial review will deliver swifter and more effective outcomes.
In his response at Second Reading, the Minister made the point that appeals on full merit bring the regime into line with the Enterprise Act 2002. So far, this seems to be the only justification the Government have made but, as we have made clear, it is not the only comparator. Many other regulators, including Ofcom’s role under the Online Safety Act, do not use merits reviews on appeal. We do not believe that the case has been made for this change; we believe that both sides benefit from a prompt resolution of the issues which a JR process will deliver.
In the meantime, noble Lords have submitted other amendments in this group that seek to limit the application for any merits review. We would argue that the cleanest way to achieve our objective is to revert to the original wording, but I very much look forward to hearing their views and having this debate. I therefore beg to move Amendment 64.
Baroness Stowell of Beeston (Con)
My Lords, I will speak in particular to my amendment in this group, Amendment 66, which does what it says quite clearly in its explanatory statement. This amendment would make it clear on the face of the Bill that
“the only CMA decisions subject to full merits review in Part 1 of the Bill are the decision to impose a penalty, the level of the penalty, and the timing of the penalty”.
Before I go on, may I please also thank all noble Lords who have added their names to my amendment? They are the noble Baroness, Lady Jones, the noble Lord, Lord Clement-Jones, and my noble friend Lord Black of Brentford—no, Brentwood; sorry, they are quite different, I think. I will say something shortly about the other amendments in this group.
Noble Lords will know that I was very public and vocal in airing not just my own concerns but those of the Communications and Digital Committee that the essential judicial review process for appeals against CMA rulings that is in the Bill might be overturned by the Government in the face of lobbying by big tech. As I said at Second Reading, there was much relief that the Government did not go as far as we feared they might, but the introduction of a merits appeal on penalty still causes alarm, because it is hard to see how such an appeal will not reopen the substantive finding.
My amendment seeks to prevent that happening, but we need to look at the practicalities of this, which is where I would also include the other amendments in this group that seek effectively to reverse the Bill back to its original wording. If a firm appeals the penalty, how will a complete rerun of the basis for the CMA intervention be avoided? I have had a conversation with my friend, the noble Lord, Lord Faulks, because he is the legal expert—I am not at all. He made a couple of points to me that are relevant for me to air in my remarks.
I would like my noble friend the Minister to tell us what would be relevant for a firm to appeal on its merits, because once we start to look at the practical differences between an appeal on the penalty and one via the merits process, as opposed to a JR test, what worries me is that it will not simply be an argument that the penalty was excessive, as in when people say, “The prisoner should have got five years when he got seven”. How will the Government, by virtue of the changes they have made to the Bill, avoid a complete rerun of the basis for the CMA’s original intervention? I fear it will be argued, when it brings an appeal on the merits of the penalty, that this is also all relevant to an appeal on the merits of the substantive finding. Basically, we will find that the whole decision starts to get reopened.
As I said to my noble friend the Minister last week, with the amendments I have tabled in Committee, I have tried to avoid repeatedly unpicking what the Government brought forward at Third Reading in the Commons. At the very least, there must be further clarification in the Bill if the merits appeal on fines is to stay. However, to satisfy this Committee—and, ultimately, your Lordships’ House—against reverting the Bill to its original wording, my noble friend the Minister must convince us of the practicalities of how the merits appeal on fines system will work in practice, and that it will not undermine the JR process for substantive CMA rulings.
Lord Holmes of Richmond (Con)
My Lords, it is a pleasure to follow my noble friend Lady Stowell in speaking to my Amendment 69. As has already been mentioned, a common theme runs through all the amendments in this group: limiting full merits appeals and ensuring that in practice they apply only to the imposition of financial penalties and the quantum of those penalties, as set out in Clauses 85 to 92.
As has already been stated, when he sums up, my noble friend the Minister needs to explain how this will operate in practice and why this situation is so special that a different approach is needed from that of any other regulatory environment, such as Ofcom.
There is nothing more to be said. Following on from the noble Baroness, Lady Jones, I am tempted to ask whether the amendments were government late amendments or late government amendments, but I will leave that hanging with the Committee. Ultimately, we need to ensure that we have clarity on how this approach will work when the Bill becomes law and that there is a watertight limit on the deployment, and potential misuse, of full merits appeals.
Lord Tyrie (Non-Afl)
I have put a couple of amendments down which I suspect will not fully accord with the mood of the majority of the Committee on JR. I also support the removal of full merits appeals on fines, and I would like to explain why I have taken that position.
The Government took a number of important decisions on appeals in the other place. One was an amendment conceding that the scale of fines will be subject to a full merits review. Another stuck with the narrow definition of JR, or pure JR. Those two decisions are directly linked—politically, economically and legally—and there is a trade-off between them. They are best considered together.
My view on the fines issue is straightforward. There are two main reasons why the Government have got this decision wrong. First, a key point that we must bear in mind is that fines in the UK for all forms of breach of competition, anti-trust and consumer protection law are, on average, far lower than those in any comparable jurisdiction. As a result, both in the competition field and with many financial regulatory issues, fines are treated as a business cost by large firms. This has been a major weakness of our regulatory framework for decades and is still there now. If fines are to serve as a deterrent to platforms, they need to be large—perhaps very large, even unprecedentedly so for the UK. I fear that a full merits review will drag fines in only one direction, and we have the history of fines review by the CAT in other areas in support of that view.
Incidentally, I am amazed that the Treasury has not taken a closer interest in all this, because fines score against the consolidated fund, but it seems quite sleepy on this issue. It should be very wary of a full merits review of fines.
Lord Black of Brentwood (Con)
My Lords, it is a great pleasure to follow the noble Lord, Lord Tyrie, who has made an important speech. I shall speak to Amendment 66 in the name of my noble friend Lady Stowell, to which I have added my name. I also support the amendments tabled by the noble Baroness, Lady Jones, which cover similar ground. I remind noble Lords of my registered interests set out on the first day in Committee.
Two key themes seem to have emerged consistently during the scrutiny of this Bill in Committee: first, the need for there to be as much clarity as possible with no room for protracted legal wrangling as a result of legal loopholes; and, secondly, the emphasis on the speedy resolution of disputes. My noble friend’s amendment goes to the heart of both those themes and seeks to enshrine in the Bill the Government’s stated commitment, which is strongly shared by the Grand Committee, as I have seen to date, to clarity and speed.
As the Minister made clear at Second Reading, the Government intend that merits-based appeals are available once a breach has been found only if
“the imposition of a penalty was not appropriate, the level of it was not suitable, or the date by which it should be paid needs to be changed”.—[Official Report, 5/12/23; col. 1450.]
Merits appeals are not intended to apply to the decision that a breach has occurred or to the decision to set a conduct requirement in the first place or to introduce a remedy such as an enforcement order following a breach.
Lord Faulks (Non-Afl)
My Lords, may I crave the indulgence of the Committee? Unfortunately, I missed the first minute of the speech made by the noble Baroness, Lady Jones, as I was trying to comply with etiquette and remain in the Chamber until the conclusion of the opening speeches on the Rwanda Bill. If the Committee permits, the points I was going to make have largely been made by others, so I can be particularly brief.
At the heart of this legislation is the decision: do we want the regulation to be done by the DMU or, de facto, by the courts? This is, effectively, a twin attack. First, there is the proportionality provision inserted into the statute, and now we have the change in the test of appeals on sentences. The combination of those two seems inevitably to lead to further court involvement, and it is not the intention that courts should be the regulator. The courts are there, as the noble Lord said, to stop executive overreach or some illegality in the approach based on usual JR principles. They are not there to second-guess what the DMU has done.
If the amendments, or something like them, are not accepted, I fear that an appeal of the merits will involve going into everything, as other noble Lords have said. We would have the war of the lever arch files, so eloquently described by the noble Lord, Lord Vaizey, at Second Reading. Lawyers will act, and continue to act, and it will frustrate what we are trying to achieve.
Lord Vaizey of Didcot (Con)
My Lords, as I have been cited by the noble Lord, Lord Faulks, it is incumbent on me to speak on the same principles as him. Everything that I want to say has already been said, but that will not stop me putting in my two pennies’ worth. This is the stuck-record part of the debate, where I repeat what I said at Second Reading and simply put on record my support for all these amendments.
I will pick up on what some noble Lords said in their comments. I wholeheartedly endorse what my noble friend Lady Stowell said. In the real world, if you have an appeal on the merits of a fine, it seems almost impossible to see how you stop leakage into an appeal on the merits of the case. So you are, in effect, back to square one and, as the noble Lord, Lord Faulks, put it, the war of the lever arch file.
The speech by the noble Lord, Lord Tyrie, was fascinating and a master class on the different aspects of judicial review: an appeal on the merits, an appeal on JR-plus, or an appeal on JR. When I was a Minister, I dealt with this debate with Ofcom, when it started the process of wanting to move from appeals on the merits to appeals on JR. To the layman, an appeal on the merits is in effect a full rehearing of the case: you go back to square one and simply have the trial all over again. An appeal on JR means that you at least have to identify a flaw in the reasoning of the regulator when it comes to a judgment. If, in effect—here, I bow to the expertise of the noble Lord, Lord Tyrie—settled law informed by European directives means that some element of the merits of the case are taken into account in a JR appeal of a regulator, so be it. It may be the difference between a passive and an active decision, as it were.
In this Committee, we understand how you can judicially review a decision by a government department. When a regulator is making an active decision to bring a prosecution, and it then finds guilty the company that it is prosecuting, some element of the merits may well be taken into account. It seems to me that how it is drafted may well be important, but the clear intent should be that any appeal, whether on the actual decision or the level of the fine, should be an appeal based on JR, when it comes to how a judicial review is understood when appealing a decision by a regulator.
I finish with the simple point—this is the stuck-record part—that it clearly is the settled will of this Committee, and I suspect it will be the will of the House when this comes to Report, to constantly guard against giving the SMS companies too much opportunity to wriggle out of decisions made by the regulator.
I should add that a lot of the tone of my remarks at Second Reading and in Committee might make it seem that I am in the pocket of the regulator. I am certainly not. I have lots of concerns that, at other times, would make me say that I think the regulator often strays too far and interferes in far too many cases. I am not resiling from the fact that there clearly should be an opportunity to appeal its decisions. Often, it backs away before it gets to a decision, but its interference in mergers and takeovers sometimes leaves me slightly baffled, particularly when it involves companies that have very little presence in the UK market. I am not saying, by any stretch of the imagination, that the regulator is perfect, but I know that any procedure it undertakes, as it will do when this law is passed, will be long and expensive, so we must guard against making it even longer and even more expensive.
Baroness Harding of Winscombe (Con)
My Lords, I seem to have found my space in this Committee following my noble friend Lord Vaizey again. I have put my name to Amendments 65, 67, 71 and 72 in the name of the noble Baroness, Lady Jones.
I would like to add a possible new element to the discussion, as I am conscious that otherwise we are all just literally repeating each other’s words. My noble friend Lady Stowell talked about the practicalities of a full merits appeal for fines and her concerns. We should also think about the incentives on the designated firms and on the CMA.
Much of what we are debating in this Committee is about how we balance the inequality of arms between companies with enormous resources, and the concern that independent regulators, given a large amount of power, can occasionally make mistakes. That is the essence of this debate. The noble Lord, Lord Tyrie, spoke eloquently about the risk of regulators making mistakes. I wish to add to the discussion some facts about the sheer scale of the inequality of arms.
According to a number of different sources, the best public assessment we can get of Apple’s legal budget is that it is north of $100 billion a year. Bruce Sewell, who stepped down in 2017 after eight years as Apple’s general counsel, gave an interview to a student at Columbia Law School in 2019 in which he set out how he thinks about the legal department and the legal budget in a technology company. He said that, rather than take clearly safe actions, the job of the general counsel is to
“steer the ship as close to that line as you can, because that’s where the competitive advantage lies … you want to get to the point where you can use risk as a competitive advantage”.
So, when you have a $1 billion legal budget, you can afford to play the risk card on every review. You can afford to fully resource every full merits review, whereas when you are the regulator, with a substantially smaller legal budget, you cannot risk every single one of your decisions going to a full merits review.
The incentives are equally divergent. The incentive on the regulator is to be really risk-averse; to not risk being challenged. That means that you will not bring the case in the first place. As the noble Lord, Lord Tyrie, said last week, we know that we need to embolden our competition regulator. One of the big opportunities on leaving the EU is to have a much stronger competition regime because we know that that will drive stronger economic growth. But a full merits regime, in any part of the process, will make the regulator more risk-averse and will drive the incentive to sail closer to the wind, as Bruce Sewell said. Sailing closer to the wind means less collaboration with the regulator, because you are much better off playing your legal cards in the courts. In both those cases, that is not the regime that we are trying to design. We need to recognise that it is not just about practicalities; incentives are really hard to avoid if you have a full merits appeal process at any stage.
I am therefore left asking why the Government are proposing to do this for fines. The argument we have heard up to now is that the reason for doing so is to align with the Enterprise Act. However, as the noble Lord, Lord Tyrie, beautifully set out, they are not really aligning with anything in this regime, so that argument does not wash. It is not the same as the regulatory regime for appeals in the sector I come from, telecoms. As I said at Second Reading—I apologise for repeating it—I do not really understand why small telecoms companies, tiny in comparison with these tech giants, are fine to cope with a JR on fines decisions, but the large tech giants need the extra protection of a full merits review, in case they are fined too much money. It sounds like the worst form of tech exceptionalism. Looking at digital regulation in this House in the last couple of years, we have learned that the era of tech exceptionalism should be over and that technology companies are just the same as other companies. They are not wicked and evil but driven by incentives to do a good job for their stakeholders, and if we define the rules of the game to encourage them to use their legal budgets to challenge the regulator, that is what they will do.
Therefore, I am left to believe, as the noble Lord, Lord Tyrie, said, that the only reason for the change made on Report in the House of Commons was that it was part of some form of explicit or implicit deal to open a back door that will weaken the Bill, which will therefore not achieve what we want. I strongly support the amendments in the name of the noble Baroness, Lady Jones. Later we will come to how, if we accept them, we will ensure strong parliamentary scrutiny. I hope very much that we do not think we trade one for the other.
Lord Kamall (Con)
My Lords, I wish to speak to this group of amendments. Other noble Lords have clearly made the case for the amendments in their names so I will try not to repeat what they have said.
Given that, I have three simple questions for my noble friend the Minister. First, having decided that appeals by firms should be decided not on merits in a court but by JR appeal, why have the Government now decided to allow this merits-based appeal on the size of the fine? I know that noble Lords have their own views on this, but I would like an answer and some clarity from the Government. Secondly, what evidence has come to light to persuade the Government to lay their amendments on this matter in the other place? Thirdly, how confident are the Government that, if a firm wins its merits-based appeal on the size of a financial penalty, this definitely will not give the firm a legal basis for challenging the reasons for the penalty and the conduct required by the CMA in the first place? I look forward to my noble friend the Minister’s responses to these three questions.
Lord Clement-Jones (LD)
My Lords, following this superb debate, I am worried about being able to add much to what has been said.
First, I want to pick up what the noble Lord, Lord Tyrie, said. As ever, I agree entirely with half of what he said, but the other half is rather more controversial. This seems to be a growing habit. Exactly as the noble Baroness, Lady Harding, said, if there is a solution to overreach, it must be through greater parliamentary scrutiny. The noble Baroness, Lady Stowell, also referred to this and we have amendments coming down the track on it. Going back to JR-plus for the majority of decisions to be made under the Bill would be a retrograde step.
Lord Tyrie (Non-Afl)
The noble Lord said that we should not go back to JR-plus, which would bring in a limited form of merits review. However, many decisions in merits appeals have been found to be clearly wrong, once in the appeal, and would have harmed consumers’ interests had they been allowed to stand, under full judicial review. Does the noble Lord agree with that remark? Before he decides whether or not he does, I remind him that I am quoting him in his opposition to the move made in 2017.
Lord Clement-Jones (LD)
My Lords, it is lovely to be reminded of previous remarks but, of course, that was then and this is now. We were talking about the standard for Ofcom then; today, we are talking about the CMA standard. The noble Lord would need to produce evidence that that standard did not in fact have a really poor outcome as a result of the power of big tech not being as limited as it could have been. He talked about us needing to recognise the power of big tech, but that is exactly what adopting the JR standard—the Wednesbury “unreasonable” standard that the noble Lord, Lord Faulks, talked about last week, and which all of us are content to stick with—would do.
Of course, what we are trying to do, if possible—if the amendments in the name of the noble Baroness, Lady Jones, are accepted—is to revert back to a JR standard for penalties. I believe that consistency across the board is rather more important than trying to revert to a form of appeals standard that obtains in a different part of the regulatory forest. However, as the noble Lord said, the danger of executive overreach is much more easily cured by increased parliamentary scrutiny than by trying to, in a sense, muddy the waters of the test for appeals.
What the noble Baroness, Lady Harding, said about incentives was entirely right. Litigation has clearly been used and is being used by big tech for strategic business purposes. We are trying to make sure that this does not drag on for ever and that appealing against the penalties does not open up the whole caboodle as a result. The noble Lord, Lord Black, and others who talked about the change of standard for penalties infecting other aspects of a CMA decision, made very strong points.
Ultimately, the Minister has a large number of questions from noble Lords. The noble Baroness, Lady Stowell, asked what would be relevant for an appeal on penalties. What is the motivation for the Government in putting forward this new standard for penalties? What is so special about it and what evidence did they use to come to that view? Is not the danger of using a merits appeal basis that the decisions on which the penalty was based will be unpicked? The practicalities were also raised by a number of noble Lords.
Lord Vaizey of Didcot (Con)
I intervene on the point that the noble Lord, Lord Tyrie, made to the noble Lord, Lord Clement-Jones. There is a difference. The noble Lord was absolutely right to raise his concerns about Ofcom moving from a merits-based to JR-based appeal, in 2017. As the noble Baroness, Lady Harding, knows very well, Ofcom often makes decisions on extremely complicated pricing mechanisms. The telecoms companies had a point in saying that a merits-based appeal for Ofcom decisions is worth while, because going through the calculations again could sometimes be worth £50 million, £100 million or £200 million.
Ofcom was right in finally moving to JR for those cases when it took quite important strategic decisions about the marketplace—for example, forcing Sky Sports to offer its content wholesale to competitors. The noble Lord, Lord Clement-Jones, had a point then and he has one today.
Lord Clement-Jones (LD)
It is very nice and helpful to be reminded of things that I had forgotten entirely. We need to make sure that we are consistent across the board. A full merits-based standard is not, for example, used to appeal against fines issued by Ofcom under the Online Safety Act. These Benches have serious concerns regarding the insertion of two different appeal standards in the Bill, as it may decrease the deterrent effect and risk lengthier appeals, as we have heard.
If we are not successful in persuading the Government to change back to JR for penalty appeals, and a merits appeal is to be included, a number of amendments—the amendment in the name of the noble Baroness, Lady Stowell, that in the name of the noble Lord, Lord Holmes, and my amendment—are of great relevance to make sure that we do not see that drift that the noble Lord, Lord Black, talked about. A failure to do so could run the same risks as an entirely novel appeals standard. On that basis, we very much support the amendments in the names of the noble Lord, Lord Holmes, and the noble Baroness, Lady Stowell, and my own Amendment 68, which would ensure that there is no further extension of the merits appeal standards into any other part of the Bill. It is intended to have the same impact and draw a clear line in the sand beyond which no court can go.
I am sorry that we do not have the noble Lord, Lord Lansley, here to reveal perhaps another letter from a Minister. We had an interesting discussion last Wednesday, when the noble Lord, Lord Lansley, quoted the letter, sent to Damian Collins and Sir Robert Buckland, about the nature of the intention behind including “proportionate”. It said:
“In practice this means that firms will be able to challenge whether the DMU could have achieved its purpose for intervention through less onerous requirements”.
In a sense, that is a massive invitation to litigation, compared to ordinary JR. If that move is an invitation to litigation, think how much further along the road we are travelling if we go for a merits test for the fine and the penalties. I hope the Minister will therefore reverse course back to the pre-Report situation in the Commons; that would give a great deal of satisfaction around this Committee.
The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)
I thank the noble Baroness, Lady Jones, for raising the important subject of digital markets appeals through Amendments 64, 65, 67, 71 and 72. I thank noble Lords for their powerful and compelling contributions. I am glad of the opportunity to set out the Government’s position.
These amendments seek to revert the changes made in the other place to the appeal standard of digital markets penalties. This would mean that penalties would be subject to judicial review principles, instead of being heard on their merits. It is important that decisions made by the CMA can be properly reviewed to ensure they are fair, rigorous and based on evidence. As the Bill stands, the key decisions—particularly the regulatory decisions that will drive the benefits from this regime—will be appealable on judicial review principles. Only penalty decisions will be appealable on the merits. This will provide SMS firms subject to penalties with additional reassurance, without compromising the regime’s effectiveness.
Penalty decisions will come at the very end of the regulatory process, if at all. They do not have the same impact on third parties as other decisions in the regime. Conduct requirements and pro-competition interventions will already have been in place to address their intended harm before penalty decisions are considered. Decisions on penalties are different from those about imposing requirements: they are more about making assessments of facts. They will assess what the SMS firm has or has not done. Other decisions that the CMA will take in the regime are forward-looking expert judgment calls. It is appropriate that the latter be given a wider margin of appreciation through a judicial review standard than decisions to impose penalties.
To address the point made by many noble Lords, I make it clear that challenging penalties does not open up the question of whether a breach occurred, or whether a conduct requirement or PCI was right in the first place. I will set this out in more detail in response to the next set of amendments—but perhaps I should say, as I did on the first day of this Committee, that I am happy to listen to and take forward any form of words that strengthens the clarity or intent of the Bill. As I said, the intent of the Bill is that the decision about whether a breach has occurred is made on JR principles.
The digital markets measures, as with other CMA regimes, have always treated penalties differently in the regime. For example, they are automatically suspended upon appeal, unlike other decisions. This would also have been the case under JR. We have aligned penalty appeals with those under the Enterprise Act 2002, as was said, so that parties can challenge these decisions on the merits to ensure that the value of penalties is suitable. The regimes in the Enterprise Act apply to firms from all sectors, rather than just tech firms. In addition, to give two examples, penalties are appealed on the merits in the financial services and markets regime, administered by the Financial Conduct Authority, and, under the Water Industry Act, overseen by Ofwat. In the EU’s Digital Markets Act, penalty appeals are similar to merits reviews in the UK.
Lord Vaizey of Didcot (Con)
I found my noble friend’s remarks very helpful, because they shone a brief light on the Government’s position. Is he saying that, by introducing an on-the-merits appeal for fines, the Government are effectively allowing the CAT to substitute its decision for that of the regulators, whereas if it were a judicial review it would simply have to send back the decision on the quantum or the timing of the fine back to regulator; in which case, he may have a point?
Viscount Camrose (Con)
I hope very much that I have a point. I think it would be best for me to write to my noble friend and the members of the Committee to clarify that.
Lord Faulks (Non-Afl)
I am listening very carefully to what the Minister says. It would be helpful if he would give an idea of the sort of arguments that would be open to somebody who is challenging a decision as to the fine and the merits. Will they be circumscribed simply by saying, “Well, it was too much”, or will they be able to look in some detail at the whole process and the interventions that ultimately resulted in the fine? How will those two things be kept separate from each other?
Viscount Camrose (Con)
As the noble Lord says, the intent is to keep those two separate. During and on the merits appeal for the penalty, the penalised firm could argue that the value of the penalty exceeded the crime, or that the breach took place inadvertently or by accident. It could not argue, however, that no breach took place; the fact that a breach took place is the premise against which the rest of the penalty appeal takes place. If the firm then wants to appeal that no breach took place, that would be done under JR, not on the merits.
The boundaries of the merits appeal process are explained in the Explanatory Notes for Clause 89. If those can be made any clearer, I am happy to engage on that. We will continue to listen to any concerns that noble Lords have on this important point.
I turn now to Amendments 72A and 72B from the noble Lord, Lord Tyrie. I thank him for his amendments, which raise an important question about the appeal standard across the wider digital markets regime. These amendments would align the appeal standard of all regulatory decisions in the regime with appeals carried out against Ofcom’s decisions taken under the Communications Act 2003. I am sure that many noble Lords are aware that the appeal standard in the Communications Act regime is often referred to as judicial review-plus. Although Parliament amended the Act in 2017 so that these appeals are to be decided on judicial review principles, the CAT has ruled that, due to retained EU law, it must also
“ensure that the merits of the case are duly taken into account”.
To turn back to this Bill, the Government heard the strong views expressed by your Lordships on the Select Committee, among others, on the importance of retaining judicial review. The changes made by the Government in the other place sought to uphold the use of the well-known judicial review principles for appeals in the new regime, except for those about penalties, as I have already discussed. Judicial review principles balance robust scrutiny of the CMA’s decisions with the need for the CMA to use its expertise to act quickly and iteratively to resolve issues.
As we discussed on the second day in Committee, the Government have made an explicit requirement for the CMA to consider proportionality when imposing conduct requirements and PCIs. As I set out during that discussion, it is right that interventions should be proportionate, but we are clear that any appeals of these matters should be heard under standard judicial review principles.
Lord Tyrie (Non-Afl)
In which case, it is clearly not the Ofcom standard, is it? The Ofcom standard imports a measure of appeal on the merits. Why are the Government continuing to assert that this is the Ofcom standard? It is nothing of the sort.
Viscount Camrose (Con)
I suggest that I set out a comparison in writing and perform the analysis as to the differences, should there be any, between the two.
Noble Lords expressed a concern on the second day in Committee that there should not be ambiguity in how appeals will be conducted. Introducing a requirement in a new domestic regime that requires an analysis of unrelated retained EU law to be able to understand how an appeal should be decided risks creating that kind of ambiguity. Complicating the appeals standard with EU case law would slow down appeals while the boundaries of what is captured by JR-plus are agreed.
Regarding decision-making, the noble Lord, Lord Tyrie, mentioned the CMA independent panel. Our approach to internal decision-making balances accountability and independence. Launching major market-shaping investigations under the regime will be reserved for the board. A board committee will oversee the regime’s regulatory interventions. At least half the members of the committee will be non-executive directors and members of the CMA’s independent panel. This make-up will ensure an independent perspective and the ability to develop deep expertise over time.
I hope that the reasoning I have put forward provides the necessary reassurances to noble Lords and that they will feel able not to press their amendments.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank all noble Lords who have spoken. Again, in the vast majority of the contributions, we seem to have reached a wide degree of consensus, although not totally, in the light of that from the noble Lord, Lord Tyrie.
Noble Lords have made a number of important points. The noble Baroness, Lady Stowell, was quite right to take us back to the practicality of appeals on a merits basis; I will come back to the Minister’s response on all that because things are still not clear. How can we be sure that such an appeal will not open the whole case up again? That is at the heart of what we are debating here.
The noble Lord, Lord Holmes, said that we do not really understand why this must be different. Why is it such a special case? It has not been explained to us why this exception has been made.
I very much appreciate the point made by noble Lord, Lord Faulks: at the heart of this issue is whether we want regulation by the DMU or by the courts. There is a real danger of us drifting towards the latter with the Government’s amendments.
The noble Baroness, Lady Harding, rightly reminded us that regulators cannot afford to take too many risks. There is a fundamental imbalance, with regulators perhaps being forced to be risk-averse because they do not have the budgets of the big tech companies. We understand the danger of the David and Goliath situation that we are in here. It is all too easy to create a system where big tech companies’ lawyers can rule the roost.
The Minister said that decisions on penalties will address what an SMS firm has or has not done. He said that a decision will address not whether a breach has occurred but what led to the breach. Our concern is that we are going to go back over all the evidence of what led to a breach, whereas the fine at the end of it represents the end of the decision-making and is meant to be the deterrent. Again, I will look at Hansard and the Minister’s subsequent letter, but it seems to me from his explanation that he risks opening the whole case up again.
I listened carefully to the noble Lord, Lord Tyrie. I understand his experience in all this. Importantly, he said that there is not just one model here—that is, we have a number of regulators that do things differently. As he pointed out, the Government have previously supported the JR model; we must be reminded of that. The noble Lord also raised his concern about what happens if mistakes are made. If mistakes are made, they would be made in the process leading up to the decision, not the subsequent fines. A merits appeal on the fine would not really help if the decisions had happened further up the decision-making process.
I agree with the noble Lord, Lord Vaizey, that the regulators are not perfect. However, as we have discussed and will discuss again, we need stronger regulatory oversight. That will come—indeed, it needs to come—from stronger parliamentary oversight, which we will continue to debate in our discussions on this Bill.
I come back to the fundamental point made by the Minister. I listened to him carefully but I am still not clear how he will keep the stages separate. How will he keep the decision-making separate from the decision on the penalty? If SMS firms argue that the penalty is too high, they will have to revisit the evidence leading to the decision.
Lord Faulks (Non-Afl)
Can the noble Baroness confirm that, in her understanding, there is nothing in the Bill itself that makes that separation clear?
Baroness Jones of Whitchurch (Lab)
I thank the noble Lord, Lord Faulks; he is absolutely right. Again, we look forward to the Minister’s letter that will try to explain how these are two separate processes and that there is a clear cut-off point between one and the other, because I am not sure that that was really what he said in his reply. To be honest, I do not see how they can be separate, as that is not how the systems work. The appeal will be, as I think the Minister said, on what the SMS firm did to lead up to that penalty; therefore, the whole case would have to be revisited.
I do not know that the Minister persuaded many people on this matter. I am sure that we will continue to debate this, and we look forward to reading his letter, which I am sure will explain things in a little more detail. In the meantime, I beg leave to withdraw my amendment.
Lord Offord of Garvel
Member's explanatory statement
This amendment would omit the definition of “data protection legislation” in Clause 107, as my amendment to Clause 328 would define that term for the purposes of the whole Bill.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Scotland Office (Lord Offord of Garvel) (Con)
My Lords, I am delighted to speak on the third day in Committee. I reiterate the sentiment articulated in the first session by my noble friend Lord Camrose that the Bill, importantly, will drive growth, innovation and productivity and ensure that businesses and consumers in the UK reap the benefits of competitive markets. I thank noble Lords for their contributions throughout the passage of the Bill and for their continued scrutiny and debate.
I turn to a number of miscellaneous amendments put forward by the Government that affect different parts of the Bill. Amendments 214 and 219 introduce a new clause and schedule into the Bill that make amendments to other pieces of primary legislation, consequential to provisions in Parts 2, 3, 4 and 5 of the Bill. The consequential amendments fall into three groups. The first amends sectoral legislation that applies, with modifications, the information-gathering power given to the CMA for its merger control functions in Section 109 of the Enterprise Act 2002. Where that power is applied for non-merger related purposes, the changes made by Part 2 of the Bill—which make express provision about the extraterritorial reach of the power and strengthen the civil sanctions regime that supports its enforcement—are not to apply. The schedule makes provision accordingly.
The second group of amendments is in consequence of Part 3, and the repeal of Part 8 of the Enterprise Act 2002 and its replacement with Part 3 of this Bill. The third group is in consequence of provision in Chapter 1 of Part 4 and Chapter 2 of Part 5, to amend legislation which otherwise restricts disclosure by regulators and others of information relating to individuals and businesses. This will permit them to disclose information for the purposes of the enforcement of consumer protection law, unfair trading and the provision of investigative assistance to overseas regulators.
Amendment 223 amends the commencement provision in Clause 334, so that the new clause and schedule can be commenced alongside the substantive provisions to which they relate.
Amendment 213 will ensure that information that comes to a UK public authority in connection with its power to provide investigative assistance to an overseas authority in Chapter 2 of Part 5 of the Bill will be covered by the information disclosure restrictions and gateways in Part 9 of the Enterprise Act 2002. This ensures that a public authority can share the information that it has collected on behalf of an overseas authority with that overseas authority. This will be in line with relevant safeguards, including personal data protection and safeguards for commercially sensitive information. To help ensure that the investigative assistance regime operates efficiently, the amendment will also enable UK authorities that hold information to which Part 9 applies to disclose that information to another UK authority to facilitate the provision of investigative assistance by that UK authority.
I turn to data protection override. Amendments 73, 206, 207, 208, 216 and 217 are minor and technical amendments which will make provision in relation to data protection across the Bill. Amendment 217 adds a new clause that clarifies that no provision in the Bill would require or authorise the processing of data that would contravene data protection legislation. Amendments 73, 206, 207, 208 and 216 remove provisions that previously applied only to some specific powers and insert a definition of data protection legislation that applies across the whole Bill.
On pre-commencement consultation, Amendment 218 adds a new clause to clarify that:
“A duty to consult under or by virtue of this Act may be satisfied by consultation that took place wholly or partly before the passing of this Act”.
The provision clarifies that the CMA has the flexibility to begin consulting before Royal Assent to ensure that the full set of reforms in the Bill can be implemented as soon as possible.
I hope that noble Lords will accept these amendments. I look forward to addressing any questions or points that they may have about them. I beg to move.
Lord Clement-Jones (LD)
My Lords, this is quite a set of amendments and the Minister rather rattled through his speech, but I have only one question: why are they now being included in the Bill here in Committee? Why were they not in the original version of the Bill? What is the motivation behind these new amendments? I am always a little suspicious. With the data protection Bill coming down the track, we will have hours of endless excitement. The words “data protection” and “government” are sometimes a bit of a red rag, so one always has to kick the tyres quite hard on any provision that appears to be opening a door to disclosure of data and so on. Obviously, in a competition context, it is most likely to be commercial confidential information, but the Minister needs to explain what kind of information we are talking about and why we need to have these provisions included at this stage.
Lord Leong (Lab)
My Lords, I thank the Minister for his overview and explanation of the various government amendments. I look forward to his response to the question from the noble Lord, Lord Clement-Jones: why now? These are mainly technical and tidying-up amendments and we are in broad agreement with most of them in this group.
Amendment 217 makes it clear that any imposed or conferred duties to process information do not contravene data protection legislation. That is welcome. Amendment 213 ensures the disclosure of information under Chapter 2 of Part 5 of the Bill, which allows UK regulators to provide investigative assistance to overseas regulators. This is in line with the restrictions on the disclosure of certain kinds of information found in the Enterprise Act 2002, which is fine. I ask the Minister what assessments are in place to safeguard the sharing of such details with autocratic regimes, which may not have robust governance and accountability systems in place and whose values we do not share? On Amendment 218, I ask the Minister whether the intent is similar to that of Amendment 1, as set out so eloquently by my noble friend Lady Jones of Whitchurch on the first day of Committee?
Finally, I refer to Amendment 216, which replaces the definition of data protection legislation for the whole of the Bill, so the definition in Amendments 73 and 208 are removed. Can the Minister confirm that such a definition is consistent with Article 8 of the European Convention on Human Rights and the Enterprise Act 2002? I look forward to the Minister’s response and comments.
Lord Offord of Garvel (Con)
I thank the noble Lords for their questions. I will first address the question from the noble Lord, Lord Clement-Jones. I do not see the shadows that he sees within the amendments. Unlike in the first part of the Bill, which introduces new bodies, units and legislation, we are here looking back consequentially at the Enterprise Act and Consumer Protection Act and building on them. The amendments simply improve the Bill while maintaining the overall policy intent and approach and the procedure, which is technical in nature. For example, we will go through the whole list of consequential Bills to which data protection applies to make sure that we have got a single concept of data protection across all the various Bills that consequentially apply.
The data protection amendment does not change but merely clarifies the application of existing data protection legislation across the Bill, as mentioned by the noble Lord, Lord Leong. Information of relevance will mostly be commercially sensitive information, as the noble Lord suggested. In answer to the second question of the noble Lord, Lord Leong, about international information disclosure, it will be governed by Part 9 of the Enterprise Act, which ensures appropriate safeguards.
I look forward to discussing more of these substantive measures later today and in future sessions. However, having answered the questions, I hope that the amendments can now be accepted. I beg to move.
Lord Knight of Weymouth
“CMA cooperation with work and labour market institutions(1) The CMA must take reasonable steps to consult with—(a) the Office of Labour Market Enforcement,(b) the Health and Safety Executive,(c) the Employment Agency Standards Directorate, and(d) HMRC where the CMA considers that the institution holds or has a right to request information, knowledge or documentation that may be relevant to the exercise of its regulatory functions.(2) The CMA must, following consultation under subsection (1), undertake a regulatory function analysis and make recommendations regarding the following additional questions—(a) whether action should be taken by the institution or others to materially affect competition in line with the CMA’s objectives, and(b) if so, what action should be taken.(3) The institutions named in subsection (1) may make a recommendation or other requests to the CMA where they consider that the CMA may exercise a regulatory function.(4) A recommendation or other request under subsection (3) must be accompanied by a statement of reasons which sets out the rationale and any substantial legal or evidential questions identified by the institution for consideration by the CMA.(5) In this section, a material effect on competition is deemed to include a significant impact on the creation, displacement or alteration in the conditions or quality of work and environment for work in the United Kingdom.”Member’s explanatory statement
This amendment enables cooperation between the CMA and work and labour market regulators.
Lord Knight of Weymouth (Lab)
My Lords, this group contains a range of amendments on competition reforms. They are fairly wide-ranging and I will leave it to the proposers of the other amendments to summarise them.
Amendment 73A, in my name and the names of the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, returns us to an issue that we debated last Monday and on which the noble Lord, Lord Clement-Jones, moved an amendment. It is the issue of good work and the CMA. I apologise for returning to the issue, but that was stimulated by the Minister, the noble Viscount, Lord Camrose, saying that
“the CMA may identify actions that other regulators or public bodies would be better placed to act upon. This may include the DMU referring issues such as workplace conditions to a relevant regulator”.—[Official Report, 22/1/24; col. GC 132.]
I reflected on it and thought that there may be some merit in seeing whether or not we can empower it in the Bill. Subsequent reading and events have reinforced that view. The purpose of these amendments is to promote cross regulator co-operation and information sharing.
Our current approach to regulation rests on domain or sector-specific action, which demands a high level of co-operation and co-ordination. This means sharing information and knowledge, as well as technical and non-technical skills and resources, exactly as was publicly requested by the director of labour market enforcement, Margaret Beels, in her letter of April 2023, to the BEIS Committee in the other place, on AI and the labour market. I remind the Committee that the director of labour market enforcement is effectively an arm’s-length body of the Minister’s department. Her letter said:
“There is a need for cross-cutting collaboration with regulation in this space … There is no vehicle or champion for doing this”
at present.
Baroness Kidron (CB)
The noble Lord, Lord Knight, has said so much of my speech that I will be very rapid. There are two points to make here. One is that regulatory co-operation is a theme in every digital Bill. We spent a long time on it during the passage of the Online Safety Act, we will do it again in the Data Protection and Digital Information Bill, and here it is again. As the noble Lord, Lord Knight, said, if the wording or the approach is not right, that does not matter, but any move to bring regulators together is a good thing.
The second point, which may come up again in amendments in a later group that looks at citizens, is that it is increasingly hard to understand what a user, a worker or a citizen is in this complicated digital system. As digital companies have both responsibilities and powers across these different themes, it is important, as I argued last week, to ensure that workers are not forgotten in this picture.
Baroness Harding of Winscombe (Con)
My Lords, it is with great trepidation that I rise to speak to these amendments because, I think for the first time in my brief parliamentary career, I am not complete ad idem with the noble Lord, Lord Knight, and the noble Baroness, Lady Kidron, on digital issues where normally we work together. I hope they will forgive me for not having shared some of my concerns with them in advance.
I kicked myself for not saying this last week, so I am extremely grateful that they have brought the issue back this week for a second run round. My slight concern is that history is littered with countries trying to stop innovation, whether we go back to the Elizabethans trying to stop looms for hand knitters or to German boatmen sinking the first steamboat as it went down the Rhine. We must be very careful that in the Bill we do not encourage the CMA to act in such a way that it stops the rude competition that will drive the innovation that will lead to growth and technology. I do not for a moment think that the noble Lord or the noble Baroness think that, but we have to be very cautious about it.
We also learn from history that innovation does not affect or benefit everybody equally. As we go through this enormous technology transformation, it is important that as a society we support people who do not necessarily immediately benefit or who might be considerably worse off, but I do not think that responsibility should lie with the CMA. Last week, the noble Lord, Lord Knight, challenged with, “If not in this Bill, where?” and I feel similarly about this amendment. It is right that we want regulators to co-operate more, but it is important that our regulators have very clear accountabilities. Having been a member of the Court of the Bank of England for eight years in my past life, I hate the fact that there are so many that the Bank of England must take note of in its responsibilities. We have to be very careful that we do not create a regime for the CMA whereby it has to take note of a whole set of issues that are really the broad responsibility of government. Where I come back into alignment with the noble Lord, Lord Knight, is that I think it is important that the Government address those issues, just probably not in this Bill.
Lord Ranger of Northwood (Con)
My Lords, I rise with an equal amount of trepidation to the noble Baroness, Lady Harding. I am a new Peer in the House with a background in the technology industry and the delivery of digital services. Although we are talking about market competition, we are straying into a complex conversation around labour markets and digital skills—the fundamental, No. 1 topic that drives a lot of thinking in digital organisations. I refer noble Lords to my register of interests.
The complex nature of a global digital skills market is the one thing that is challenging all digital businesses at this point in their ability to deliver and drive innovation. It is so competitive; in fact, the hyper-competitiveness is driving the inability to deliver. People are cannibalising other organisations. The agility and speed at which the market is moving, the hyperinflation in pricing, the investments that people are trying to make—indeed, that international businesses are trying to make globally—and the length and longevity of those investments’ value are becoming increasingly challenging. Therefore, the CMA intervening and having some influence will be challenging. We will have to think hard about how to enable understanding; about the speed at which the market is moving; about where this kind of activity would take place; and about how it would operate, understanding the global size and scale of this challenge.
I view this market with some concern but also with some excitement because of its ongoing development. One thing that I have seen is the move from triage, where outsourcing and moving to international markets for labour skills in digital was a trend, to the emerging nearshore and onshore trend of looking at bringing more skills into local geographies. Why do I say that? I say it because of the speed of the change in the market. If we try to regulate and legislate for that speed, it will be extremely challenging.
Humbly, that is the point I wanted to make at this stage of the debate.
Lord Tyrie (Non-Afl)
I have tabled a couple of amendments in this group. One concerns cost recovery for mergers while the other is about the need to review whistleblowing. This group is a proper mixed bag; it has all sorts of things in it.
Let me just say that I agree with what the noble Baroness, Lady Harding, said. We are at risk of “take note” and “have regard” confetti with respect to a number of our regulators. The problem is that they deflect attention away from their central function and make it much more difficult to hold regulators to account adequately; in fact, they make it virtually impossible for Select Committees to do their already difficult job. We will come on to discuss this later, but those two issues are more closely related than they might initially appear.
On cost recovery for mergers, it is important that we all know what is going on at the moment. When the CMA examines a merger, for example the Microsoft-Activision deal or the Sainsbury’s-Asda merger, the taxpayer subsidises a considerable part of the costs incurred by the regulator for that investigation. I cannot think of a good reason why the scrutiny and approval of big-ticket mergers should be subsidised. However, there is—it is important for me to say this—a wide divergence of view and practice on this, both domestically and internationally. I discussed this issue over many years with a number of my counterparts when I was the chairman of the CMA, as well as internally within the CMA and with what I suppose one might call the competition community of lawyers, which is pretty large.
Some jurisdictions argue that merger control is an imposition on firms by government and that, therefore, the public sector should pay for all of it—at least, that is their starting position. Germany takes this position; it has something to do with its long history in the treatment of cartels and the creation of the Bundeskartellamt, but we do not need to go into that. The fact is that it is in its bloodstream to pay for this from general taxation. Others argue, like me—it varies from regime to regime—that this public service is a perfectly reasonable, chargeable event. After all, anti-competitive practices, which many mergers might facilitate, are a cost to the economy and welfare.
In 2011, the Government looked at all this in the White Paper that led to the creation of the CMA, when they put together the Competition Commission and OFT. As a result of that White Paper, the Government compromised between the wide variety of views and increased cost recovery for mergers as a whole—that is, the whole task of scrutinising mergers—from 50% to 60%. It is important to bear in mind that, in deciding what to do on merger fees, firms seeking approval for their mergers pay consultants huge sums and that the cost of the CMA scrutinising it is a residual in their calculations. Indeed, it would be a residual of a residual, because these numbers are so very large.
Lord Clement-Jones (LD)
My Lords, I support Amendment 73A in the name of the noble Lord, Lord Knight, and will speak to a number of the other amendments in the group.
The noble Lord, Lord Tyrie, made a very interesting and attractive case for both his amendments. On Amendment 93A, the whistleblower review amendment, I was particularly struck by him saying that the budget for compensation for whistleblowers comes from within the CMA’s budget. That seems to be an extraordinary set of circumstances. In the case of both amendments, he clearly spoke from a huge amount of experience, and he has obviously been thinking about these areas for improvement for some considerable time. I very much look forward to hearing what the Minister has to say in response, because the noble Lord, Lord Tyrie, made an extremely good case from the point of view of someone who has been inside the system and is well informed about the issues.
On the full cost recovery for mergers, one of the perennial issues that we come across when talking about regulators is the question of resources. Anything that assists them in not having to cheese-pare in the way they regulate is extremely welcome, particularly when this kind of solution can be so easily put into effect.
On the amendment tabled by the noble Lord, Lord Knight—and on what the noble Baroness, Lady Harding, and the noble Lord, Lord Ranger, said—I do not think we are very far part. A lot of this is making sure that, where something does not fall within the remit of a particular regular, that regulator can co-operate with other regulators and exchange information to make sure that the other regulators, in whose province a particular issue is located, can then take appropriate account.
What the noble Lord, Lord Ranger, said amounted to almost a generic speech about how you regulate the digital sector or digital services. I do not disagree with him, but I would perhaps be slightly more robust in thinking that regulation is not the enemy of innovation. Sometimes, regulation can be the friend of innovation, because it creates a certainty in the context in which people are developing new technology.
Lord Leong (Lab)
My Lords, I thank all noble Lords who have contributed to this debate. I will refer first to Amendment 73A, which my noble friend Lord Knight of Weymouth set out so succinctly. Let us remind ourselves that the digital regulation co-operation forum, the DRCF, was founded by the CMA, the Information Commissioner’s Office and the Office of Communications—Ofcom. The FCA subsequently joined as a full member the following year. As mentioned by the noble Lord, Lord Clement-Jones, the purpose of the DRCF is to ensure coherent, informed and responsive regulation of the UK digital economy. When this is achieved, we can serve citizens and consumers better, reduce regulatory burdens for industry where appropriate and enhance the global impact and position of the UK.
The noble Baroness, Lady Kidron, and my noble friend Lord Knight have said that workers are really important in the competition space. The noble Baroness reminded us that workers are also users and citizens; they should be involved in any regulation. Having conversations with them would make a better competitive environment.
The noble Baroness, Lady Harding, and the noble Lord, Lord Ranger of Northwood, cautioned us that we should not allow regulators to stifle innovation. We really need to let innovators do their thing and the old saying “Do not kill the goose that laid the golden egg” is so true in this respect. We need to ensure that the right framework is in place so that the regulators are not overburdened with too much regulation that would stifle innovation, so we really support Amendment 73A. It would empower the CMA to co-operate with other government bodies which may have the power to obtain information relevant to its regulatory functions.
I refer now to Amendment 93A, tabled by the former chair of the CMA, the noble Lord, Lord Tyrie, who has a deep understanding of the relevant issues in this area. Whistleblowers with insider knowledge who provide assistance to the CMA can be a powerful tool in helping to uncover cartels and other anticompetitive practices more swiftly than might otherwise be possible. Since cartels often operate in secrecy, individuals or companies with insider or market knowledge can play a crucial role. They can bring issues to the CMA’s attention or gather information that will allow it to start an investigation.
The primary legal protection for whistleblowers in such situations comes from the Public Interest Disclosure Act—PIDA—which won praise when it was first introduced in 1999. More recently, it has been criticised for not protecting the majority of whistleblowers from suffering retaliation with little or no legal recourse. In January 2023, the Minister for Security said that
“what the country needs is an office for whistleblowers, and what we need to do is ensure that we have the updates to the legislation”.—[Official Report, Commons, 25/1/23; col. 1094.]
Can the Minister update your Lordships’ House on whether any primary legislation to that effect is forthcoming?
Lord Offord of Garvel (Con)
Amendment 73A, tabled by the noble Lord, Lord Knight of Weymouth, would require the CMA to co-operate with regulators and bodies with responsibility for matters relating to employment and working conditions. I thank the noble Lord for his amendment, for raising the importance of regulatory co-ordination, and for once again highlighting the direct and indirect impacts of digital activities and competition policy on workers.
On the first day of Committee, a number of noble Lords argued that the CMA should take a wider view in considering impacts on work and work environments in its regulatory functions. The CMA can already consider these issues where they relate to competition. Indeed, although competition authorities in the past focused primarily on competition in product markets, we are seeing them take an increased and welcome interest in labour markets. The CMA’s annual plan sets out how it will prioritise investigating businesses engaging in anti-competitive labour market practices. It is already using its powers to take enforcement action against firms that break the law by fixing wages.
However, the amendment would go beyond the scope of the competition remit of the CMA, potentially creating new burdens and additional complexities. It would therefore detract from the aims of the UK competition regime, and it would be inappropriate for the CMA to assess impacts unrelated to competition, which is its area of expertise and jurisdiction.
The noble Lord, Lord Knight, mentioned the director of labour market enforcement, who is an independent public appointee with a statutory responsibility to prepare an annual strategy for Home Office and DBT Ministers, setting out their assessment of the scale and nature of non-compliance in the labour market. In this way, there is already an independent assessment of the labour market and enforcement, so this amendment could infringe or duplicate the director of labour market enforcement’s remit.
The noble Lord, Lord Clement-Jones, mentioned the report by the Competition and Market Authority’s microeconomics unit. This takes a deep dive into the trends in the UK labour market, focusing on the impact of competition and employer market power. Where labour market issues are relevant to competition, the CMA already looks at this.
On co-operation between regulators, I agree with the noble Lords, Lord Knight and Lord Leong, and the noble Baroness, Lady Kidron, that this is essential. Part 9 of the Enterprise Act facilitates exactly that. The CMA works closely with bodies, regulatory and otherwise, both when delivering its own regulatory functions and when supporting others in theirs.
I agree with my noble friend Lady Harding that we should not provide the CMA with additional roles and duties that risk undermining the careful balance between effective enforcement and preventing overenforcement and overregulation, which risk stifling innovation. It would further confuse the regulatory landscape to require the CMA to consider labour market issues in this way, beyond its remit and expertise. Nothing in legislation prevents the CMA and other regulators from co-operating on these important issues, subject to necessary information-sharing safeguards. We do not need to legislate to achieve this.
The DMU specifically will be required to consult the regulators whose remits have the most interaction with the digital markets regime. It can, and will, engage with other authorities, including labour market regulators, where appropriate.
I will touch briefly on regulatory functions analysis. While the CMA works closely with other regulators and authorities, it would not be appropriate for it to conduct an analysis of other regulators’ functions as a regulator itself. For these reasons, I hope the noble Lord will withdraw his amendment.
Lord Tyrie (Non-Afl)
On this point, can the Minister say whether he supports the cross-subsidy that currently exists? Given the fact that a lot of mergers of a very large size will be coming through, as he has pointed out, does he think that a logical way of dealing with the problem to which he has alluded—that of the small dynamic mergers that do not want to be discouraged by excusive scrutiny costs—would be to extend that cross-subsidy?
Lord Offord of Garvel (Con)
The noble Lord will know that, on the current pie chart of activity undertaken by the CMA, 80% is for mergers with companies with a turnover north of £100 million, while 20% of it is for companies with turnovers below that. The 80:20 rule always works in life, so there is obviously scope to charge the larger companies more if that is the decision taken. I refer to the reassurance given that this can be amended in secondary legislation if that is deemed appropriate.
Let me move on to media merger public interest interventions. Amendment 93 in the name of the noble Lord, Lord Clement-Jones, would expand the list of public interest grounds for the Secretary of State to intervene in a merger case to include the need for free expression of opinion and plurality of ownership of media enterprises in user-to-user and search services. I am grateful to the noble Lord for raising this issue. Media mergers are particularly sensitive, as they could have an impact on how the UK public access and consume information.
The Government are currently reviewing the recommendations on changes to the media public interest test in Ofcom’s 2021 statement on media plurality. Ofcom did not recommend that online intermediaries or video and audio on-demand services should fall within the scope of the media mergers regime, which this amendment would provide for. We are considering Ofcom’s recommendations carefully and, as we do that, we will look closely at the wider implications on the industry. The Government have not proposed pursuing substantive changes to the grounds for public interest interventions in mergers in this Bill. The changes recommended in Ofcom’s review can be addressed directly via secondary legislation under the made affirmative procedure, if appropriate.
For these reasons, I hope that the noble Lord opposite will not press this amendment.
Lord Clement-Jones (LD)
What is the timescale within which all this will be decided?
Lord Offord of Garvel (Con)
I do not have a detailed timetable. I understand this is being looked at currently. I am happy to confirm in writing when we have a detailed timetable.
I move now to Amendment 93A and protection for whistleblowers. I again thank the noble Lord, Lord Tyrie, for his informed contribution to the scrutiny of this Bill. I also thank the noble Lords, Lord Clement-Jones and Lord Leong, for their contributions on this topic. Amendment 93A would introduce a new requirement for the CMA to carry out a review of protections and support available for whistleblowers under the UK’s competition and consumer law.
The noble Lord will know that the Government consulted on the important issue of incentives and protections for whistleblowers in the competition regime. However, no clear evidence or support was put forward by respondents that would support making changes to the existing framework. Therefore, the Government do not propose to introduce reforms to whistleblowing protections. In taking this decision, we also considered that the courts can already give due weight to the importance of anonymous whistleblowing in competition law enforcement. This could, for example, justify a court restricting how the identity of a whistleblower is disclosed depending on the circumstances of the case.
As the noble Lord mentioned, in 2023 the CMA increased the compensation cap for informants in cartel cases from £100,000 to £250,000. This will support the CMA to investigate effectively and, where appropriate, enforce against criminal cartels, which can cause serious harm to consumers and businesses within the UK.
Any whistleblower worker who faces victimisation in the UK can also seek additional compensation from their employer in an employment rights tribunal. This compensation can be awarded uncapped and can reflect the costs of some whistleblowers being unable to work in their chosen profession again.
The Government, therefore, have not proposed reforms to the compensation for whistleblowers in the Bill. However, I stress that we recognise the importance of whistleblowing in uncovering wrongdoing and will continue to ensure whistleblowers are not discouraged from coming forward under the current framework.
At this time, we do not think that a review in the form that the noble Lord’s amendment calls for would be merited, nor that it would be appropriate to place a new and binding obligation on the CMA requiring it to conduct such a review within a specific timeframe. For these reasons, I hope that the noble Lord does not push this amendment.
Lord Leong (Lab)
Can the Minister share whether there is any update on the office for whistleblowers, as mentioned by the Secretary of State?
Lord Offord of Garvel (Con)
I need to write to the noble Lord on that.
I now speak briefly to the government amendments in this group, all of which are minor and technical in nature. First, Amendments 90, 91 and 92 ensure that extensions to the statutory deadlines for phase 2 merger investigations under the new fast track procedure for mergers operate correctly within the existing legal framework for deadline extensions under the Enterprise Act 2002.
Secondly, government Amendments 94, 95, 97, 98, 99, 100 and 102, will clarify that, in the civil penalty provisions introduced and amended by Schedules 9 and 10 to the Bill, references to maximum amounts of daily penalties are maximums per day and not in total.
Thirdly, Amendments 96 and 101 update cross-references in Section 120 of the Enterprise Act 2002, so that decisions made under the civil penalty provisions in Part 3 of that Act, as amended by the Bill, are carved out from that provision. Section 120 allows persons to seek a review of a CMA decision in the CAT on judicial review principles. Such a review is not required because penalty decisions are appealable on a merits basis.
Fourthly, Amendment 103 makes the equivalent amendment to Section 179 in relation to civil penalty decisions made under Part 4 of the Enterprise Act.
Finally, Amendments 104 and 105 have been introduced to take account of an amendment made by the Energy Act 2023 to Section 124(5) of the Enterprise Act 2002, which is also amended by the Bill.
I hope noble Lords will support these government amendments.
Lord Knight of Weymouth (Lab)
My Lords, we have had a useful debate. I was very much persuaded by the noble Lord, Lord Tyrie—far more so than the Minister was—and I thought that the noble Lord, Lord Clement-Jones, made some useful points around asymmetry in respect of search and media.
I am very grateful to all noble Lords who responded to my amendments. I kind of feel that my friend, the noble Baroness, Lady Harding, and the noble Lord, Lord Ranger, were in many ways responding to last week’s debate—I think as the noble Baroness admitted. It is perfectly possible to argue that it is an encumbrance to extend the remit as we were arguing last week; that is a perfectly reasonable position. Indeed, just yesterday in the Observer, I read Torsten Bell from the Resolution Foundation responding to the CMA chief executive’s speech around the labour market and competition, saying that this is not a case for minimum labour standards nor a case for extending regulatory reach. They have friends in all sorts of places.
The EU announced a fine of £27 million against Amazon for oversurveillance of workers. These are real problems, and there is a regulatory gap that would be best addressed, I am sure, by having a single powerful labour market regulator. At the moment, we have a multiplicity of relatively weak regulators. That might solve some of the regulatory gap problem.
The debate this week was much more about collaboration between regulators. I feel that the Minister failed to really address and respond to the point. He might want to follow up by having a meeting just to sort out whether, in essence, Margaret Beels, the director of labour market enforcement, is wrong. In her letter to the BEIS Select Committee on 6 April 2023, under the bullet point on regulation, she said that:
“There is a need for cross-cutting collaboration with regulation in this space to bring different aspects together both within the UK and across the international playing field. There is also a need to learn from each other. There is no vehicle or champion for doing this”.
If the Minister had been listening, I said that earlier. He performs his notes brilliantly, but one of these regulators is saying that there is “no vehicle or champion” for regulatory co-operation in respect of AI. We need to fill that regulatory gap, and this Bill is an opportunity for us to do so. It is urgent because of the exploitation of some workers. We need to get on with it and I hope that, as this Bill proceeds, we find an opportunity to do so. I would be delighted to do so in collaboration and co-operation with the Government Front Bench.
On that basis, I beg leave to withdraw my amendment.
Lord Offord of Garvel
Member's explanatory statement
This amendment clarifies that the levy rules must include provision about how the levy is to be paid.
“(4A) The levy rules may make provision for interest to be charged, at the rate specified for the time being in section 17 of the Judgments Act 1838, on any amount of levy not paid by the date on which it is due.(4B) References in subsection (4) to an amount payable by an undertaking do not include interest charged in accordance with provision made under subsection (4A).(4C) The CMA must pay any amount that it receives in accordance with provision made under subsection (4A) into the Consolidated Fund.”Member's explanatory statement
This amendment makes provision about the charging of interest on amounts of levy that are not paid by the due date.
Member's explanatory statement
This amendment removes the requirement for the CMA to obtain approval from the Secretary of State before publishing its guidance outlining how it will exercise its functions.
Viscount Colville of Culross (CB)
My Lords, I have asked for my Amendment 76 to Clause 114 to be decoupled, because I think it goes to the centre of the operation of Part 1 and I want noble Lords to focus on debating the issues raised by this clause as it stands. I also thank the noble Baroness, Lady Jones of Whitchurch, and the noble Lords, Lord Black and Lord Holmes, for putting their names to this amendment. I am glad that Amendment 77 in the name of the noble Baroness, Lady Stowell, is also in this group; I support its aims. Clause 114 seems to be a small section hidden away on page 70 of the Bill, yet the guidance process that it outlines is fundamental to the operation of the regime set out in Part 1 of the Bill.
This is a high-level Bill, which leaves a lot of fine-tuning and detail to the CMA. It will be the first part of the process to become operational after Royal Assent has been granted. Without these guidelines, the CMA will not be able to start its urgently needed investigations into the activities of large tech companies and their domination of many digital markets.
Baroness Stowell of Beeston (Con)
My Lords, I speak to my Amendment 77 in this group. I thank the noble Lords, Lord Tyrie and Lord Clement-Jones, and the noble Baroness, Lady Jones of Whitchurch, for adding their names to it.
I do not support what the Government did in the Commons, which the noble Viscount, Lord Colville, described and which his amendment seeks to overturn. However, I think that I understand why they did it, and I have some sympathy with their reasoning, if it is, as I assume, about increasing oversight of the CMA. Where I differ is that I do not believe that this is a job for the Secretary of State. In saying that, it is important to add that this is not just about a turf battle, for want of a better expression, between the Executive and Parliament. It is quite dangerous for the Secretary of State to position herself in this way, because she will become the subject of intense lobbying if she has the power to approve the CMA guidance on how Part 1 of the Bill will operate. That lobbying will be done in private—it could go on for weeks, as the noble Viscount said—and any change made as a result of that activity would be subject to massive rows, if not legal challenge. For me, nothing makes sense about the solution to the problem with which I have some sympathy.
As I have said on several occasions, the need for regulators to be independent can sometimes be over-argued. I very much believe that their regulatory decisions should be made independently without fear or favour or any kind of political interference. What I am most concerned about is that they must be accountable, even though they are independent. We are giving the CMA substantial new powers, so we must also ensure that we—Parliament—oversee its use of them properly.
I will come to parliamentary accountability and how we might improve on that in another amendment in my name, which relates to this group but is in another, for the reasons that the noble Viscount set out. But here, my Amendment 77 proposes that, instead of the Secretary of State approving the CMA guidance, the CMA must
“consult the relevant Parliamentary committees … and publish its response to any recommendations”
made by the committee at the same time that it publishes the final version of its guidance. That approach would ensure oversight of the guidance before it is implemented. It would also make sure that there is scrutiny of the CMA, that the CMA is properly accountable to Parliament and that any debate about the guidance happens in the open and not behind closed doors.
I am pleased to say that I have received widespread support for my proposal from many stakeholders and trade bodies, from all angles. I am not exaggerating when I say that what is proposed by way of Amendment 77 serves everyone’s needs and shared objectives, whether that is big tech, challenger tech, Parliament or the Government. I am grateful to my noble friends—both the Ministers—for our meeting to discuss this matter, which we had a couple of weeks ago. When my noble friend comes to respond—having already, I hope, discussed my amendment with colleagues in Whitehall—I hope he is able to express some support for what is proposed here. This is an important amendment to the Bill and I hope very much that he, speaking for the Government, feels able to accept it and make it their own.
Lord Black of Brentwood (Con)
My Lords, I want to support Amendment 76, to which I have added my name, with some brief remarks because the noble Viscount, Lord Colville, has put the case with great power and eloquence. I also support Amendment 77 in the name of my noble friend Lady Stowell, which is a clever solution to the issue of accountability.
I support Amendment 76 in particular, both because I do not believe the requirement is necessary and because—this is a consistent theme in our Committee debates—it builds into the legislation a completely avoidable delay and poses a very real threat to the rapid enforcement of it. Quite apart from the issues of principle, which are significant, this is also intensely practical. The CMA’s guidance on the Bill, published earlier this month, set out the expected timetable for the consultation phase on the Bill’s implementation, running through to October 2024, which could be a very busy month. It is almost certainly when we will have a general election or be in the midst of one.
It seems highly unlikely that the Secretary of State will be able to approve guidance during the purdah of an election campaign and if, after the election—whoever wins it—we have a new Secretary of State, there will inevitably be a further delay while he or she considers the guidance before approving it. The Bill therefore ought to be amended to remove the requirement for the Secretary of State’s approval, or, at the very least, set a strict timetable for it, such as the draft guidance being automatically approved after 30 days unless it is specifically rejected. That would ensure that there is not unnecessary delay, which could run into many months, before the new regime takes effect—especially if there is, as a number of noble Lords have made clear, intense lobbying of the Secretary of State behind the scenes.
Baroness Kidron (CB)
My Lords, I support both amendments in this group. This seems to be fundamentally a question of what happens in private and what happens in public. I was struck by the number of exchanges in the second day in Committee last week in which noble Lords raised the asymmetry of power between the regulator and the companies that may be designated SMS. The right reverend Prelate the Bishop of Manchester said,
“let us get this right so that Davids have a chance amid the Goliaths”.—[Official Report, 24/1/24; col. GC 230.]
Baroness Stowell of Beeston (Con)
I urge the noble Baroness to stay for the debate on the next group of amendments, in which we will talk about parliamentary accountability. I think she will find that the committee I am proposing is perhaps not quite as modest as she has just described it.
Baroness Harding of Winscombe (Con)
My Lords, I promise I will speak briefly to associate myself with the remarks of my noble friend Lady Stowell and support her Amendment 77 and Amendment 76 in the name of the noble Viscount, Lord Colville.
Despite the fact that there are fewer of us here than there have been in the debates on some of the other quite contentious issues, this is an extremely important amendment and a really important principle that we need to change in the Bill. To be honest, I thought that the power granted to the Secretary of State here was so egregious that it had to have been inserted as part of a cunning concession strategy to distract us from some of the other more subtle increases in powers that were included in the other place. It is extremely dangerous, both politically and technocratically, to put an individual Secretary of State in this position. I challenge any serious parliamentarian or politician to want to put themselves in that place, as my noble friend Lady Stowell said.
On its own, granting the Secretary of State this power will expose them to an enormous amount of lobbying; it is absolutely a lobbyist’s charter. This is about transparency, as the noble Baroness, Lady Kidron, said, and parliamentary scrutiny, which we will come to properly in our debate on the next group of amendments. However, it is also about reducing the risk of lobbying from the world’s most powerful institutions that are not Governments.
For those reasons, I have a slight concern. In supporting Amendment 77, I do not want the Government or my noble friend the Minister to think that establishing parliamentary scrutiny while maintaining the Secretary of State’s powers would be a happy compromise. It would be absolutely the wrong place for us to be. We need to remove the Secretary of State’s powers over guidance and establish better parliamentary scrutiny.
Lord Clement-Jones (LD)
My Lords, it has been very interesting to listen to noble Lords on this amendment. I am getting a strong sense of déjà vu from our debates on the then Online Safety Bill.
The noble Viscount, Lord Colville, made a devastating case for the deletion of the Secretary of State’s power, and the noble Baroness, Lady Stowell, made a superb case for the inclusion of parliamentary oversight over the guidance. The fact is that, just as we argued in our debates on the then Online Safety Bill, there is far too much power for the Secretary of State in this Bill. This example is the most egregious, but there are so many other aspects that one could argue with, and have argued with—the noble Viscount reminded us of his earlier amendments—such as the conditions for an undertaking to have an SMS designation; the turnover condition; the permitted types of conduct requirements; the period during which the DMU must decide which terms to include in the final transaction under the final offer mechanism; the amount of penalties imposed by the DMU on individual undertakings; and the DMU’s statement of policy on penalties. That is a heck of a lot of different powers for the Secretary of State and, as I say, power over guidance is the most egregious of them.
The way in which the noble Baroness, Lady Stowell, expressed this was exactly right. We will come on to parliamentary scrutiny in our debate on the next group, but the word “accountability” is crucial. Of course the regulator should be independent but, at the same time, it should be accountable. This is not just a licence to roam beyond the bounds; it is the right and duty of Parliament to have oversight of the regulator, which is exactly what this amendment would provide for. You have only to look at the draft that was put together of the Overview of the CMA’s Provisional Approach to Implement the New Digital Markets Competition Regime to see just how broad the Secretary of State’s powers over the way in which the CMA carries out its functions will be. That is why this is such an important amendment.
I very much hope that the Minister will hear our voices. This is a really important area of the Bill. As the Minister can see, it is something about which, having had the experience of the then Online Safety Bill, we feel very exercised.
Lord Bassam of Brighton (Lab)
My Lords, this is the beginning of an important couple of debates about accountability. The breadth and the import of what noble Lords have said so far underlines how much we value that. We on the Labour Benches are co-signatories to both amendments in this group—the first, Amendment 76 in the name of the noble Viscount, Lord Colville, and the second, led by the noble Baroness, Lady Stowell.
Put simply, if the CMA is to be a regulator genuinely independent of government and accountable to Parliament, these amendments should stand. As it is, the legislation seems to suggest that, before the CMA can take any initiative on guidance, it first has to receive the approval of the Secretary of State. This is surely not only a time-consuming process but a wholly inefficient way of conducting business. I can well understand and appreciate why the Government desire to understand how the CMA intends to implement its regulatory policy, but do they really require such a firm and strong hand in the process? As it is, the CMA will be in constant consultation, discussion and interaction with government Ministers, and I do not see why, in the final analysis, approval has to come from the Secretary of State.
Can the Minister tell us how the regulatory regime compares with others? Do regulators like the Charity Commission, Ofcom, Ofwat, the Electoral Commission et cetera all require approval from the Secretary of State before issuing guidance? How does this process contrast with these other regulators? Is there a standard practice, or does it vary across regulatory frameworks? We need something that will work for this particular part of our economy, and it has to be built on trust and understanding and not reliant on the heavy hand of the centre of government coming in and ruling things in or out of guidance which the experts, in the form of the CMA and the DMU, have reflected and consulted on.
We obviously support the amendment of the noble Baroness, Lady Stowell, which, as I said, we co-signed. Consulting the relevant parliamentary committees seems a wholly sensible solution and step. These committees are powerful entities, as we know, full of expertise and insight, and they provide a layer of accountability that Parliament rightly expects. After all, the CMA is a creature of Parliament and of legislation that we will put through this House.
I am sure there are plenty of examples of where legislation, particularly secondary legislation, has benefited from the input and oversight of Select Committees and other committees of both Houses. The points made about lobbying the Secretary of State were important and powerful. We need maximum transparency, and we need openness in this process; otherwise, suspicion will abound, and we will always have cynics who say that Secretaries of State are very much in the pockets of business and commercial interests. We do not want that in this legislation; we want something that works for the market, for the competitive interests in the digital world, and particularly for consumers.
Ministers would do well to listen carefully to what the noble Baroness, Lady Stowell, said. She is an experienced parliamentarian, but, more than that, she was the chair of a regulator, so she understands exactly the import of the pressure that can come from central government and how it can best be managed.
These amendments are important for us in order to secure accountability in this market and in the way in which the various institutions work and operate together. I happily lend my support to both of them.
Viscount Camrose (Con)
I start by thanking my noble friends Lord Black, Lady Harding and Lady Stowell, the noble Viscount, Lord Colville, the noble Baroness, Lady Kidron, and the noble Lords, Lord Clement-Jones and Lord Bassam, for their thoughtful and valuable contributions. I absolutely recognise the seriousness of this part of the debate and look forward to setting out the Government’s position on it. I will address each amendment in turn.
I thank the noble Viscount, Lord Colville, and my noble friend Lady Stowell of Beeston for highlighting the subject of accountability to government and Parliament. As I said, I am aware of the importance of the topic, and I welcome the chance to speak to it now. Amendment 76, from the noble Viscount, Lord Colville, would remove the requirement that the Secretary of State must approve guidance produced by the CMA in relation to the digital markets regime. Amendment 77, from my noble friend Lady Stowell of Beeston, would also have this effect. Additionally, Amendment 77 would add a requirement for the CMA to consult certain parliamentary committees about proposed guidance and publish responses to any committee recommendations.
Lord Clement-Jones (LD)
I am sorry to interrupt the Minister, but, if the logic were being followed for what he said, there would be—at the very least—some form of affirmative resolution for the guidance, as with all the other powers in the Bill.
Viscount Camrose (Con)
I am happy to look into that as a mechanism, but, as currently set out in the Bill, the logic is that the Secretary of State can approve the guidance.
The Government will continue to work closely with the CMA, as they have throughout the drafting of the Bill, to ensure that the timely publication of guidance is not disrupted by this measure. Published guidance is required for the regime to be active, and the Government are committed to ensuring that this happens as soon as possible. Guidance will be published in good time before the regime goes live, to allow affected stakeholders to prepare. The Government hope that, subject to parliamentary time and receipt of Royal Assent, the regime will be in force for the common commencement date in October this year.
In response to my noble friend Lord Black’s question about guidance and purdah, the essential business of government can continue during purdah. The CMA’s guidance relates to the CMA’s intentions towards the operation of the regime, rather than to a highly political matter. However, the position would need to be confirmed with the propriety and ethics team in the Cabinet Office at the appropriate time, should the situation arise that we were in a pre-election period.
I thank the noble Viscount, Lord Colville, and my noble friend Lady Stowell for their amendments, and I hope that this will go some way towards reassuring them that the Government’s role in the production of guidance is proportionate and appropriate. As I said, I recognise the grave seriousness of the powerful arguments being raised, and I look forward to continuing to speak with them.
Viscount Colville of Culross (CB)
I thank noble Lords for their contributions and ask the Minister to listen to the concerns Members have expressed today. The clause gives extraordinary power to the Secretary of State, and I ask the Minister to listen to his noble friends, the noble Baronesses, Lady Stowell and Lady Harding, who called the power dangerous. In particular, the noble Baroness, Lady Harding, said that it was so dangerous and such a big power that it must be a distraction.
The noble Lord, Lord Black, said that the concern about having this power is that it would create a delay, and that that would especially be a concern over the period of the election, both before and after. He called for draft guidance to be approved within 31 days, which is certainly something that could be considered; after all, no one wants ping-pong to go back and forth do they? They want the CMA’s guidance to be put into action and this process to start as soon as possible.
The noble Baroness, Lady Kidron, said that the asymmetric power between the regulators and the tech companies means that there will be a drum beat of what she called “participative arrangements”. That is quite a complex thought, but the idea behind it—that the CMA must not be stopped from using its power to deal with some of the most powerful companies in the world—is very important.
The noble Baroness, Lady Stowell, is a former regulator and called for Parliament to have a role in overseeing this. We were reminded by both the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Kidron, that we had a discussion on Secretary of State powers in the debate on the Online Safety Act, much of which was about whether a joint digital committee could oversee digital regulation. I suspect that that will be discussed in the next group. We have given enormous powers to Ofcom with the Online Safety Act, we are giving big powers to the CMA and I imagine that we are giving big powers to the ICO in the Data Protection Act, so Parliament should have a powerful standing role in dealing with that.
The Minister called for robust oversight of the CMA and said that it must be accountable before Parliament. Already, Parliament looks at its review and annual reporting. I come back to the concern that the Secretary of State still has powers that are far too great over the implementation of this guidance, and that the CMA’s independence will be impinged on. I repeat what I and other noble Lords said on the concern about Clause 114: it stands to reduce the CMA’s independence. I ask the Minister to consider very seriously what we have been saying.
The Minister’s suggestion that he will look at the affirmative resolution for Secretary of State approval of guidance is something that we should certainly push further—at least that is some step towards reducing Secretary of State powers. With that, I beg leave to withdraw my amendment.
Lord Offord of Garvel
“Restriction on disclosure orders(1) This section applies for the purposes of—(a) digital markets proceedings, or(b) competition proceedings.(2) A court or the Tribunal must not make a disclosure order requiring the CMA to disclose or produce information where the court or the Tribunal is satisfied that another person would be reasonably able to provide the information.(3) A court or the Tribunal must not make a disclosure order requiring the CMA to disclose or produce digital markets investigation information before the CMA gives notice of the closure or outcome of each investigation to which the information relates.(4) In this section—“competition proceedings” has the meaning given by paragraph 2(4) of Schedule 8A to the Competition Act 1998 (further provision about claims in respect of loss or damage before a court or the Tribunal);“digital markets investigation information” means information—(a) prepared by a person other than the CMA for the purpose of a digital markets investigation;(b) sent by the CMA in connection with such an investigation to a person that is the subject of the investigation;“digital markets proceedings” means proceedings under section 101 (rights to enforce requirements of Part 1 of that Act) or proceedings on appeal from such proceedings.(5) Paragraphs 7 and 27 of Schedule 8A to the Competition Act 1998 (other definitions; disclosure orders) apply for the purposes of this section as they apply for the purposes of Part 6 of that Schedule.(6) In Schedule 8A to the Competition Act 1998—(a) in paragraph 7 (other definitions), after sub-paragraph (2) insert—“(2A) “Digital markets proceedings” means proceedings under section 101 of the Digital Markets, Competition and Consumer Act 2024 (rights to enforce requirements of this Part).”;(b) in paragraph 28, after “competition proceedings” insert “or digital markets proceedings”;(c) in paragraph 29, after “competition proceedings” insert “or digital markets proceedings”;(d) in paragraph 30(1), after “competition proceedings” insert “or digital markets proceedings”.”Member’s explanatory statement
This amendment would prevent a court or the Tribunal from making a disclosure order in respect of certain material held by the CMA.
Lord Bassam of Brighton
“Digital Markets Unit and CMA: annual statement to Parliament (1) The Secretary of State must, at least once each year, lay before Parliament a statement containing the Secretary of State’s assessment of the conduct and operation of—(a) the Digital Markets Unit, and(b) the CMA as a whole.(2) The first statement must be laid before 31 October 2024.(3) Each further statement must be laid before 1 February of each subsequent year.”Member's explanatory statement
This new Clause would require the Secretary of State to lay before Parliament each year a written statement about the conduct and operation of the DMU and CMA.
Lord Bassam of Brighton (Lab)
My Lords, we now move on to the second debate about accountability. We have two amendments in this group—in moving this amendment, I will speak also to the other—relating to the accountability in various forms of the CMA, the Secretary of State and Parliament. With these amendments, we seek to strengthen parliamentary oversight over the CMA by obliging the Secretary of State to bring before Parliament an annual report on the work of the DMU and the CMA. We are grateful to the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Bennett, for their support for this amendment.
This is a common device exercised by parliamentarians to try to improve the quality of accountability to Parliament. I have almost lost count of the number of times I have seen similar amendments moved by Members on either side of the House—from a Labour Government and from a Conservative Government—but they are nevertheless important because they remind us all of the value of Parliament and why we are here. They also oblige the Secretary of State to make it clear in their annual reporting how the work of a particular regulator is progressing and the content of that work.
Additionally, we want Parliament to have an opportunity to debate and discuss the workings of the DMU. We also want to ensure that the DMU has sufficient financial support and staff to do that work—that is, the work that Parliament has ultimately asked it to do in protecting the public interest and promoting competition that is beneficial to consumers. There are already some concerns that both the CMA and the DMU might lack the resource and clout to undertake their work in tackling the giants that dominate the digital marketplace. That is why we have tabled Amendment 83: to focus attention on this concern.
The question of resources is important because, unlike many other regulators, the CMA is funded not by a levy on the firms it regulates but by a grant. We are not seeking to change this with our amendment, but does the Minister have any concerns that the CMA and the DMU may lack the certainty enjoyed by other bodies such as Ofcom? Does he have any worries that the CMA’s funding arrangements could have an impact on its ability to scale up certain operations and ensure that investigations take place as quickly and efficiently as possible?
We argue that this must be a primary concern from the outset. The history of regulators is littered with examples of underpowered institutions lacking the ability to tackle the big issues of the day. The water industry is a critical example of what can go badly wrong when an infrastructure regulator cannot cope. Digital infrastructure is key to the nation’s future economic success and prosperity, so this is every bit as important. For those reasons, I beg to move Amendment 79.
While I am on my feet, I would like to address Amendment 81 in the name of the noble Baroness, Lady Stowell. It goes to the heart of the issue in requiring the regulator or regulators to report to the relevant parliamentary committees; this is consistent with the noble Baroness’s Amendment 77 in the previous group. For the reasons argued in our debate on that group, we support Amendment 81.
Amendment 82 in the name of the noble Lord, Lord Fox, seeks to inquire whether the CMA will be able
“to play a proactive role in promoting international standards of digital market regulation”.
It would be most odd if it were prevented doing so. Although this amendment is of interest for good trade reasons, I would also be interested to hear from the Minister how the Government view the international regulatory field and the CMA’s role, part and place in it.
I look forward to the Minister answering some of those questions and points.
Baroness Stowell of Beeston (Con)
My Lords, I speak to my Amendment 81 in this group. I am very grateful to the noble Lords, Lord Tyrie and Lord Clement-Jones, and the noble Baroness, Lady Jones of Whitchurch, for adding their names. My amendment reflects the increasing power of some of our most important regulators in the context of digital markets and online activity; and the need for greater parliamentary oversight as a result.
Lord Fox (LD)
My Lords, I speak to Amendment 82 in my name. Through the medium of parliamentary reports, it seeks to probe the Government’s position on standards—as was previewed by the noble Lord, Lord Bassam. Why am I interested in standards? My experience of other sectors is that the UK’s approach to engagement in international standards is often—in my case, always—a technical approach. Technical people are sent to the relevant bodies to do the work. This flies in the face of what I have witnessed when other countries, on their own account and that of their national champions, used the process of negotiating new standards to further the strategic aims of their country and its national standards. I want to have this discussion so that I can hear how the Government view this and where the responsibility lies. Without a real handle on standards, competitivity and competition will be playing catch-up.
During the first day in Committee, when I was in the Chamber, your Lordships discussed the importance of interoperability. By my definition, interoperability has to enable both vertical interconnection between systems and horizontal interconnection with the web. The internet is a web of interconnected sites, so interoperability has to be both one to one, for example between servers and systems, and among servers and systems.
During that debate, the Minister, the noble Viscount, Lord Camrose, said that there was no need to define interoperability and that doing so might unhelpfully narrow the definition. That would be true if, when he was speaking, he had covered all types of interoperability, including web interoperability. Separately, he referred to interoperability and data access. This might be helpful if he meant interoperability generically, covering different subsets. Can the Minister clarify whether his department’s definition covers many-to-many, one-to-many and one-to-one interoperability?
To be more technically clear, this would cover interoperability among and between websites, using JavaScript and web data such as URLs, as well as one-to-many interoperability, such as browser interactions with websites, and one-to-one interoperability, such as covering apps and operating systems. At present, the language of Clause 20(3) is limited only to interoperability with a platform, so it would not address abuse by interfering with web interoperability.
This may sound too detailed, but it is deliberately detailed, because the detail of standards establishes who wins commercially. Somebody has to be inside all this to make sure that we can avoid businesses locking out their competitors, because what has happened over the past 20 years is increasing amounts of locking in.
Microsoft tried to use its operating system to lock in its media player app and its browser. Google is locking in online advertisers to its systems. Apple locks in apps through the payments and App Store terms and conditions. Amazon sought to lock people into its buy box. Facebook does not allow people to cross post, and each company runs messaging platforms that work better when plugged together than when plugged in with one of their rivals. Lock-in reinforces the network effect in communications and increases each platform’s separate monopoly. Standards define which software components work with other components, while definitions help to decide which software can work with which. Definitions of what is in the browser and what is elsewhere right across the internet are critical.
As the Committee knows, there are three principal players setting these definitions. What the browser does is overseen by the World Wide Web Consortium—W3C. Other internet standards are defined by the Internet Engineering Task Force—IETF. Telecoms standards are defined by the International Telecommunication Union—ITU, which is part of the UN in Geneva. All are relevant to interoperability and it is critical that the CMA has a role in policing interoperability, not least to ensure that standards are not rigged for the benefit of the bigger players, as I have just illustrated.
The ITU is a public body, but W3C and IETF are run by private entities for their own benefit. There is a serious risk and current concern that the definitions that are vital to avoid the intermediation of the future web are being rigged for the benefit of the big tech players. Promoting interoperability between browsers and websites means that browsers are not websites and do not operate in a way that prefers the website of the browser owners. They should render websites whoever owns the website. Different functions have to be standardised and policed for this to happen. To promote online competition, businesses need to be able to compete with the dominant browser owners. To be clear, Google and Apple own or control browser engines for all Apple, Google and Microsoft devices sold worldwide—essentially, almost everything apart from Chinese systems.
It is central to digital competition that the CMA promotes open and fair interoperability, thereby ensuring that browser owners do not give themselves discriminatory preferences or otherwise use their control over one part of the system to benefit themselves at the expense of their rivals. As we go forward and technology changes, we have an opportunity to nip this in the bud rather than trying to reclaim it in the opposite direction.
I am in danger of labouring this point, but I am going to: wallets offer storage for online payment cards. Someone running a wallet business would expect that the wallet’s operation would be discrete from the browsers. You would expect a browser to operate in a non-discriminatory way, enabling all types of wallets and cards to be used. Well, in 2022, W3C passed a standard that clearly benefits the two dominant browsers by allowing them to prefer their own wallets, casting a shadow across the whole online wallets and payments business world. This happened because Google and Apple play a considerable role in the development of standards for their own benefit. If we actually want an open market, this all needs to be actively policed; I suggest that the CMA has to be central to that policing process. Without this effort, much of the other work of the DMU will be closing empty stables’ doors while chasing bolting horses.
I note that the noble Lord, Lord Lansley, had some interesting things to say about interoperability and data in the previous debate, so I will be interested in his response and those of other noble Lords to this amendment. I of course will not be moving it, but I want a full reply from the Minister and possibly some further dialogue before Report, just to see the department’s view of how the engagement on this highly technical and important issue is to be done at international level. If it is not the CMA, who and how?
Baroness Harding of Winscombe (Con)
My Lords, I will be brief. It is an honour to follow the noble Lord, Lord Fox, and his passionate exposé about the importance of interoperability while reminding us that we should be thinking globally, not just nationally. I did not come expecting to support his amendment but, as a result of that passion, I do.
I rise to support my noble friend Lady Stowell. She set out extremely clearly why stronger parliamentary oversight of the digital regulators is so important. I speak having observed this from all possible angles. I have been the chief executive of a regulated company, I have chaired a regulator, in the form of NHS Improvement, I have been on the board of a regulator, in the form of the Bank of England and I am a member of my noble friend’s committee. I have genuinely seen this from all angles, and it is clear that we need to form a different approach in Parliament to recognise the enormous amounts of power we are passing to the different regulators. Almost all of us in Committee today talked about this when the Online Safety Bill was passing through our House, and it was clear then that we needed to look at this. We have given enormous power to Ofcom in the Online Safety Act; this Bill looks at the CMA and very soon, in this same Room, we will be looking at changing and increasing the powers of the ICO, and if we think that that is it, we have not even begun on what AI is going to do to touch a whole host of regulators. I add my voice to my noble friend’s and congratulate her on the process that she seems to be well advanced in in gathering support not just in this House but in the other place.
I also express some support for Amendment 83. I am concerned that if we are not careful, the easiest way to ensure that the CMA is not bold enough is to not resource it properly. Unlike the passage of the Online Safety Act, where we got to see how far advanced Ofcom was in bringing in genuine experts from the technology and digital sector, it has not yet been so obvious as this Bill has progressed. That may be just because of the stage we are at, but I suspect it is also because the resourcing is not yet done in the CMA. Therefore, I ask the Minister for not so much an annual update as a current update on where the CMA is in resourcing and what support the Government are giving it to ensure it is able to meet a timetable that still looks painfully slow for this Bill.
Baroness Kidron (CB)
My Lords, I rise mainly to correct the record that I called the amendment in the name of the noble Baroness modest and also to celebrate the fact that I am once again back on the side of the noble Baroness, Lady Harding; it was very uncomfortable there for a moment.
I was on both committees that the noble Baroness, Lady Stowell, referred to. We took evidence, and it was clear from all sorts of stakeholders that they would like to see more parliamentary engagement in the new powers we are giving to regulators. They are very broad and sometimes novel powers. However, the point I want to make at this moment is about the sheer volume of what is coming out of regulators. I spent a great deal of my Christmas holiday reading the 1,500 pages of consultation material on illegal harms for the Online Safety Act, and that was only one of three open consultations. We need to understand that we cannot have sufficient oversight unless someone is properly given that job. I challenge the department and Secretary of State to have that level of oversight and interest in things that are already passed. So, the points that the noble Baroness made about resource and capacity are essential.
My other, very particular, point is on the DRCF. I went to a meeting—it was a private meeting, so I do not want to say too much, but fundamentally people were getting together and those attending were very happy with their arrangements. They were going to publish all sorts of things to let the world know how they, in their combination, saw various matters. I asked, “Is there an inbox?” They looked a little quizzical and said, “What do you mean?” I said, “Well, are you taking information in, as a group, as well as giving it out?” The answer was no, of course, because it is not a described space or something that has rules but is a collection of very right-minded people. But here in Committee, we make the point that we need good processes, not good people. So I passionately support this group of amendments.
I briefly turn to the amendment tabled by the noble Lord, Lord Fox, in which there is an unexpected interest in that I work with the IEEE, America’s largest standards organisation, and with CEN-CENELEC, which does standards for the European Union. I also have a seat on the Broadband Commission, which is the ITU’s institute that looks after the SDGs. Creating standards is, as a representative of Google once said to me, soft power. It is truly global, and as we create and move towards standards, there are often people in their pyjamas on the other side of the world contributing because people literally work in all time zones to the same effect. It is a truly consensual, global and important way forward. Everyone who has used the wifi today has used an IEEE standard.
Lord Tyrie (Non-Afl)
Just a short while ago, I decided that there was so much to say that I would say very little indeed. I completely agree with everything that the noble Baroness, Lady Stowell, said. As politicians, we should all be worried about a serious and growing problem that we are handing over huge powers to regulators on a monthly basis, and they will appear to the public to be accountable to nobody. If there is one book that is worth a good read, it is Unelected Power by Paul Tucker, who addresses exactly this set of issues with respect to finance and central banking. Come to think about it, it is a rather fat book, so, although I have read a large part of it myself, I suggest that the introduction and the conclusion will give noble Lords a good feel.
I will briefly join up a number of the debates we have just heard. On the one hand, we have been saying to ourselves, “We’ve got to empower David because David’s up against Goliath”, and on the other hand, it was said a moment ago that we have these huge overmighty regulators that must be held to account. There is an answer to that apparent clash of thoughts which s that while regulators have the capacity to wield huge power, many of them retreat into a comfort zone in which they do not do all the things they should. Rather, they do what they feel they can do relatively straightforwardly. Specifically, they do not wield the huge soft power they often have available to them.
Since I am going to give a long speech, I will digress momentarily to illustrate that point. When Covid struck, I was the chairman of the CMA. The hand sanitiser market started to be cornered at great speed by a small number of players, who then jacked up the price so that Mrs Wiggins, who wanted to go down to the corner shop to buy some at the only moment she dared go out, found that, instead of paying the correct price, which was probably £1.80, she was going to pay £12, £9 or something like that. I argued vigorously that we should do something about this, using consumer protection powers. I was told, “We don’t have a chance. We’ll be ignored. In any case, we might well lose the case. It’s all very complicated in terms of whether we have the power to intervene in a case like this. We certainly can’t assemble the evidence in time”, and so on. After a fortnight of persistence—I am pleased to say that the current head of the CMA was on the right side of this argument—I persuaded the top of the CMA to send a warning letter out. The practice ended immediately; that is why that big issue for the public agenda, which was leading newspaper coverage for several days, was taken away and a major problem for the Government was removed. Soft power is available to regulators in many ways but they often fail to address it.
The case for better scrutiny of regulators, digital or otherwise, has something to do with the need to hold regulators to account for the way in which they wield—or fail to wield—their power. That case has been made extensively elsewhere. In fact, I have written it down in places and published it, so I will not rehearse any of those arguments now.
I want to touch on two further points. If we are to do this job meaningfully, we need to have in place a number of things that, for example, the banking commission—I chaired it some time ago—found essential when assembling a technically competent team at pace to deal with the Libor scandal. A new body must have significantly greater resources and expertise than we currently provide to Select Committees. That will cost money. It is worth pointing out that the total cost of the work of the top eight regulators, which are meant to scrutinise the businesses on which they keep an eye, is in excess of £2 billion at the moment; that is the bill just to pay for the regulators. A few million pounds spent by Parliament to improve its oversight of those who are meant to be doing that scrutiny work would be money well spent.
The second thing that we must develop in Parliament is institutional memory, which is largely missing at the moment. There is very little institutional memory in our scrutiny bodies. It requires a group of officials who will stay the course for a significant time and are certainly not dispersed every time there is an election, which is what happens to a large number of Select Committee teams in both the Lords and the Commons, including the clerks and deputy clerks.
The third thing that we must do, which may seem obvious but is not always done—indeed, it is often not done—is keep good records. The body must have high-quality record-keeping. It has been a major bugbear of mine that, on the whole, records are not kept by Select Committees across Parliaments—that is, after an election, they start again as if everything is fresh. Incidentally, one of the reasons why the Treasury Committee has done better than other Select Committees in scrutinising across Parliaments is that it has one specialist adviser—I will not embarrass him by naming him—who works on monetary policy and the Bank of England and has been there for about 15 years. He loves his job and does only that job. He used to work in the Bank of England and knows a huge amount about it. That tiny fragment of institutional memory has dramatically improved the performance of the Treasury Committee over the years and does so today.
Lord Kamall (Con)
My Lords, I will speak to Amendment 81 in this group. I also wanted to speak to Amendment 77 in the previous group; I apologise that I was not here earlier to speak to it then.
I will refer to three notions from political science that may be relevant here. The first is that of the principal-agent theory and principal-agent problem. That is when a Government—namely, the principal—delegates authority to an agency. There is a huge body of work about delegating power to regulators, including the notion of agency slack, where the regulator does not act as was originally intended for a number of different reasons, raising the question of how you hold it accountable for that. Alternatively, it may perform very badly; for example, in some government departments there are concerns about arm’s-length bodies. How do we make sure that a poorly performing regulator is acting as it should have done in the first place?
The second notion is public choice theory. When people call for government intervention, they usually assume that officials and politicians are benign and will act in the public interest. Public choice theory suggests, however, that we must remember that individuals are also motivated by their own incentives and may act in their own self-interest at certain times—not because they are bad people, but because they are human. There are many cases of that; for example, with the housing market, most people agree that we need to build more houses, but many people just do not want their homes anywhere near those new houses. It is therefore very difficult in parts of the country for a candidate to stand up and campaign for more development because, according to public choice theory, they are acting in their own interest about wanting to get elected, even though they know that there should be more homes in the country. One of the fathers of public choice theory, James Buchanan, called it politics without the romance. It is when officials, who are well intentioned when the organisation starts up, just like politicians, suddenly do not act as was intended in the first place, because there are certain interests that conflict with each other. Therefore, how do we address that problem when it happens?
The third notion is the idea of unintended consequences. Given that we do not have complete knowledge, we should ask ourselves sometimes what happens if we are wrong. Are we absolutely sure that the JR appeals will prove a better way to achieve faster and more accurate decisions? We all support them, because many of the small challenger companies are asking us to do that—I have spoken in favour of them, as have many other noble Lords—but what if we find down the line that the appeals are taking longer, or that large companies are winning their appeals and the CMA has to start all over again? What if we find that it in fact takes longer than if we had gone to a time-limited merits appeal?
I considered laying an amendment asking for a review after three or five years, but I was worried about that, in case it became another loophole that large companies would use to undermine the JR appeals process, so I stood back. Another reason I did not do that was because the noble Lord, Lord Clement-Jones—I thank him for this—said to me, “You may well be right, but surely this should be about the accountability of the CMA to Parliament, and Parliament can question it on the issue of why some of the cases it is bringing are being lost on appeal”.
The other question that many of us politicians across the spectrum are asking is: who regulates the regulators? This comes from people right across the board. How do we make them accountable? I suggest that my noble friend Lady Stowell’s Amendment 81 addresses those three concerns. I hope that I have laid out the reasons why I support her amendment, notwithstanding some of the concerns raised by the noble Lord, Lord Tyrie.
I speak briefly to Amendment 82 in the name of the noble Lord, Lord Fox; he has raised an important issue. When I was in the European Parliament, we looked at digital regulation as well as financial regulation. I was told by many national European regulators, including those in the European Commission, and other global regulators that they had a huge amount of respect for UK regulators. Quite often, they would use what we did previously. For example, early telecoms regulators basically took what we did in the 1980s and replicated it across many countries in Europe.
I teach students about intergovernmental organisations. We can see that even the more technical intergovernmental organisations, some of which are over 100 years old, have now become more political. Companies and Governments are starting to influence soft power, as another noble Lord said. The EU, for example, wants to be the technical standard for regulation; China also wants to get involved in international bodies and to set the standards in its own interests—look at the debate over CDMA a few years ago. This is not just in the tech sector; we see its officials active in many intergovernmental organisations. I am not sure that the amendment tabled by the noble Lord, Lord Fox, is the right way to address these concerns, but he is certainly on to something and it deserves further consideration.
Lord Clement-Jones (LD)
My Lords, I am going to be extremely brief as the hour marches on: yes to Amendments 79 and 83. Most of the debate has been around Amendment 81 but I want to mention my noble friend’s Amendment 82 because the concept of lock-in is absolutely crucial. I am a big fan, particularly in the AI field, of trying to get common standards, whether it is NIST, IEEE or a number of them. The CMA’s role could be extremely helpful.
Of course, many other regulators are involved. That brings us into the landscape about which the noble Baroness, Lady Stowell, has—quite rightly—been so persistent over the course of the then Online Safety Bill and this Bill. She is pursuing something that quite a number of Select Committees, particularly her one, have been involved in: espousing the cause of a Joint Committee, as our Joint Committee previously did. It is going to be very interesting. I am a member of the Industry and Regulators Committee, which has been looking at the regulatory landscape.
These accountability, independence, resourcing and skills issues in the digital space are crucial, particularly for those of us in this Committee. For instance, the role of the DRCF and its accountability, which were raised by the noble Baroness, Lady Kidron, are extremely important. I very much liked what the noble Baroness, Lady Harding, said about us having talked about Ofcom before but that we are now talking about the CMA and will talk about the ICO very shortly; for me, AI brings a lot of that together, as it does for her.
So what is not to like about what I think is a rather cunning amendment? The noble Baroness gets more cunning through every Bill we get on to. The amendment is shaped in a way that is more parliamentary and gets through more eyes of needles than previously. I strongly commend it.
Viscount Camrose (Con)
My Lords, I shall be as brief as I can possibly be, I promise.
I thank all noble Lords for their brilliant and stimulating contributions. Amendment 79 in the name of the noble Baroness, Lady Jones of Whitchurch, would require the Government to undertake an annual assessment of the operation of the CMA, to include the DMU specifically. The CMA is already required to present and lay its annual report in Parliament. This covers the operation and effectiveness of the CMA, including a review of its performance, governance and finances. The CMA recently published a road map setting out how it will report on the digital markets regime in its annual report. Although I of course appreciate the intent behind the noble Baroness’s amendment, adopting it would run the risk of being duplicative of the CMA’s assessment of its activities, which could lead to concerns regarding its operational independence. The Government set out their priorities for the CMA in their strategic steer and the CMA reports publicly on how it meets these priorities. The Government will also carry out a post-implementation review of the regime to assess how it is delivering on its aims.
Amendment 81 from my noble friend Lady Stowell of Beeston would require additional reporting by the CMA, the Financial Conduct Authority, the Information Commissioner’s Office and Ofcom. It would require these regulators to publish annual reports on the impact of the digital markets regime on their activity and its effectiveness in supporting them in regulating digital markets. The Government agree that it is vital that regulators are held to account for their activities. Each of these regulators already produces annual reports that are laid in Parliament covering their operations and effectiveness. An additional report by each of the sector regulators would again run the risk of being duplicative and creating an unnecessary additional administrative burden. Additionally, the Digital Regulation Cooperation Forum was established in 2020 to support the co-ordinated regulation of digital markets and includes the regulators named in this amendment; the DRCF also publishes an annual report on its activities and priorities.
In response to my noble friend Lady Stowell’s important point regarding a committee on digital regulation, I agree with her that parliamentary accountability is crucial and thank her for engaging so clearly with me and my noble friend Lord Offord earlier on this topic. I absolutely recognise the problem. Perhaps I can offer to continue to engage with her on how to drive this forward. At the risk of disappointing the noble Lord, Lord Tyrie, we have a concern that the formation of parliamentary committees is a matter for Parliament, not the Government, but I welcome ongoing work to determine how best to ensure that committee structures can scrutinise the important issue of digital regulation.
Lord Bassam of Brighton (Lab)
Noble Lords will be pleased to know that I, too, intend to be brief. I am grateful to the Minister for his response: there was more detail than I thought we would get. I am also grateful to the other Members of the Committee who supported the two amendments in the name of my noble friend Lady Jones. We should congratulate the noble Baroness, Lady Stowell, for her sterling efforts in arguing her case for better regulation through specific committees of both Houses.
I assume we will return to the issue of accountability. There has been sufficient concern expressed this afternoon about the shortcomings of where we currently are. I heard what the Minister said about annual reporting to Parliament, and we all need to think more about how we can make that much more effective.
A number of noble Lords made the killer point that there is a lot coming down the line, including the CMA, online safety and data protection. All those topics demand further scrutiny to make sure that we get the very best from regulation and legislation.
Collectively, our amendments address two issues: the accountability of the Secretary of State to Parliament, and the accountability of the regulator to Parliament. They are two very important things with important principles behind them.
I was interested and impressed by what the Minister said about the staffing details; it is something we should regularly debate in your Lordships’ House. Have we got it right? Have we got the balance right? Where are the staff coming from? Have they got the right skill set?
It was a very useful debate, and I beg leave to withdraw the amendment.
House of Lords
Cancer Research: Funding Gap
(10 months, 3 weeks ago)
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Lord Hunt of Kings Heath
To ask His Majesty’s Government what assessment they have made of the analysis by Cancer Research UK projecting a £1 billion funding gap for cancer research.
The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)
The Government remain fully committed to tackling cancer by investing in cutting-edge cancer research. We invested almost £122 million into cancer research in 2022-23 via the National Institute for Health and Care Research, while UK Research and Innovation invests around £200 million annually. We work closely with research funders, industry, the NHS and charities to drive earlier diagnosis and improved therapies. We are confident that the Government’s unwavering commitment will lead to continued improvements for cancer patients.
Lord Hunt of Kings Heath (Lab)
My Lords, I am grateful to the Minister, particularly in relation to his final comment about long-term investment. He will be aware that around 62% of all publicly funded research on cancer comes from the charitable sector. The last few years have been incredibly tough for the sector in raising money. As an example, over the past five years Cancer Research UK has seen a 19% drop in real terms in the amount it can invest in cancer research. It argues that we are in danger of losing about £1 billion of investment into cancer research over the next ten years, and has called for a commission on sustainable biomedical research task force to look at how government, the charitable sector and other funders can collectively fill that gap. Are the Government sympathetic to that?
Viscount Camrose (Con)
Yes, entirely, and I thank the noble Lord for raising this very important issue. I pay tribute to the very important and good work done by Cancer Research UK. If its analysis—I am familiar with its basic thrust—has a flaw, it is that it makes an assumption about an ongoing linear link between the number of cancer sufferers over the year and direct government and charity sector support. This assumption neglects to bring in, first, the close work done between the Government, businesses—through business co-funding—and others, and, secondly, the growing, extensive, important research that is relevant to cancer but not specifically associated with it. In particular, many of us are familiar with the work done on radiology in AI. It is not cancer-specific but is certainly likely to help the cause of improving cancer outcomes.
Lord Carter of Haslemere (CB)
My Lords, according to Cancer Research UK, the US Government spend five times as much per citizen on cancer research as the UK Government. Why do the Government spend so much less?
Viscount Camrose (Con)
I am not familiar with this analysis, but it is very difficult to understand exactly how much is spent on cancer research, for the reason I gave earlier: so much cancer research is in areas adjacent or relevant to cancer without being specifically tagged as “cancer research”. For instance, in October 2023 the Prime Minister announced a new £100 million fund for the AI life sciences accelerator mission, which will have beneficial outcomes on cancer but is not tagged directly to cancer.
Lord Allan of Hallam (LD)
My Lords, I am sure the Minister receives regular representations from potential investors in medical research in the UK about what they need from the Department of Health and Social Care. Will he share with the House, and with his neighbour on the Front Bench, their key asks from the UK medical system and how he ensures a cross-government approach to entice in the maximum amount of investment?
Viscount Camrose (Con)
Indeed: it is so important to have not only a cross-government approach but a cross-sectoral approach. The Government work closely with academic, industry, charitable and other stakeholders. The crux of this is the healthcare missions of the Office for Life Sciences. The OLS cancer mission aims to show leadership in oncology innovation by developing further the approach first successfully used in the Vaccine Taskforce. Among other things, it has implemented the UK cancer research strategy forum, which brings together bodies of all kinds that are active in cancer research to ensure that they are effectively co-ordinated in today’s research and in future directions.
Lord Drayson (Lab)
My Lords, UK citizens willingly volunteer to allow excellent initiatives such as UK Biobank, Genomics England and Our Future Health to generate databases of health data that are excellent for cancer research. These databases are a sovereign UK asset funded by taxpayers, yet we allow the IP to leak abroad without any meaningful contribution to Treasury coffers. When will the Government implement an effective commercialisation policy to ensure that this leakage of wealth is stopped and directed to help fund cancer research?
Viscount Camrose (Con)
I cannot comment directly on leakage of either information or wealth. I noted with great interest the latest report of the Tony Blair Institute that was publicised over the weekend, which argued that we should put our healthcare data on a commercial setting for this purpose. I am not familiar with any individual allegation of leakage or undue movement of data out of the country, but I am willing to look into it and take it up with ministerial colleagues.
Lord Stevens of Birmingham (CB)
I declare my interest as chair of Cancer Research UK. One of the most important international research partnerships in cancer science is the Cancer Grand Challenges, which bring together CRUK, the US Government, the French Government, the Dutch and the Spanish, but not yet the British Government. I invite the Minister to consider joining the club and using the March Budget as an opportunity to stump up the membership fees.
Viscount Camrose (Con)
I once again pay tribute to Cancer Research UK. It is a tremendous organisation doing great work. I will look into the scheme the noble Lord brings up and take it up with ministerial colleagues.
The Lord Bishop of London
My Lords, as the noble Lord, Lord Stevens, will know, Cancer Research reported in its 2023 researcher survey that while 98% of respondents said that collaboration with EU-based scientists is important, 79% said that since Brexit it had been harder to begin new collaborations with EU-based researchers and scientists. What steps are the Government taking to prioritise collaboration between the EU and the UK in this area, especially with compatibility with the EU clinical trials regulatory framework?
Viscount Camrose (Con)
As we have just rejoined the Horizon programme as an associate, I am pleased to say that our collaboration with friends and colleagues in the EU will pick up considerably. I very much look forward to answering a Question in this House tomorrow on that exact subject.
Baroness Jones of Whitchurch (Lab)
My Lords, the Lord O’Shaughnessy review concluded that the UK is falling behind its peers in the internationally competitive marketplace for commercial clinical trials. Many in the research and entrepreneurial community are concerned that our most innovative researchers are going abroad. What is being done to persuade them to stay in this country?
Viscount Camrose (Con)
The Government and academic institutions countrywide are very focused on making sure that the country remains an attractive place to conduct research. We have four of the world’s top 10 universities in this country—a significant research base. We believe and hope that we are an outstanding place to come to live and work as a researcher. There is no doubt that we will need a significant influx of researchers if we are to meet our scientific ambitions as a nation. We continue to monitor our generous points-based immigration scheme to make sure that we can continue to attract the brightest and best.
Lord Patel (CB)
My Lords, much of the research, including cancer research, is carried out by universities. For that, the university has to spend money to build up infrastructure. That money mainly comes from the quality-related research or QR funding and the CRSF funding, the charity research support fund, both of which have declined, particularly as charity research funding increases and the government support does not. Is it the Government’s intention to increase QR funding in line with inflation and the CRSF?
Viscount Camrose (Con)
It is certainly the Government’s intention to maximise the results of conducting cancer research in universities and elsewhere. I think particularly that we do not give enough emphasis to our collaborations with business; in that respect I point to our work with BioNTech, which aims to provide 10,000 patients with immunotherapies by 2030, or the NHS-Galleri trial. As to the specific instance of the QR increase, I will happily write to the noble Lord.
Care of Critically Ill Children
(10 months, 3 weeks ago)
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Lord Balfe
To ask His Majesty’s Government what steps they have taken, or propose to take, following the publication in September 2023 of the review they commissioned from the Nuffield Council on Bioethics, Disagreements in the care of critically ill children.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
The department is working closely with other organisations to ensure that recommendations are taken forward and oversight is maintained. Together, we have taken steps on several recommendations aimed at improving the experience families and healthcare professionals have of navigating disagreements. NHS England has introduced regional conflict champions and launched resources and conflict management training on e-learning for health. The Ministry of Justice will hold a round table on how less adversarial court models could be used.
Lord Balfe (Con)
I thank the Minister for his reply. This review arose from an amendment to the Health and Care Act 2022, moved by my good friend, the noble Baroness, Lady Finlay, that I helped to draft. What steps have the department taken to establish a task force, as was recommended in the report? Secondly, there are a lot of recommendations in the report—far too many for an Oral Question. Will the Minister meet the noble Baroness, Lady Finlay, and me to review where we have got to with this most necessary look at administrative procedures?
Lord Markham (Con)
First, I thank my noble friend and the noble Baroness, Lady Finlay, for their work in this field. Of course I will very happily meet to talk about progress. Minister Caulfield has agreed to chair the task force itself, and we have agreed the constituent parties; we are including the Ministry of Justice, the Royal College of Paediatrics and Child Health, the Royal College of Nursing and health qualification providers, which will all take part in the task force.
Baroness Finlay of Llandaff (CB)
My Lords, I am grateful for the compliment paid; it was a privilege to be involved. I declare my interests in palliative care. Given that the number of children with life-limiting and life-threatening conditions has more than doubled in the last 20 years, particularly in the nought-to-19 age group and especially in the under-ones, do the Government recognise the importance of early involvement of multiprofessional specialist palliative care teams, which can support families to come to terms with what they have to come to terms with, help other clinicians to understand the families’ perspectives and avoid some of these disputes happening in the first place? Can the Minister tell us how many of the integrated care boards have commissioned specialist palliative care services that work between hospitals, ICUs and wards, out into the community and into hospices?
Lord Markham (Con)
The noble Baroness is correct: the number of young people with life-limiting conditions has gone up, from about 33,000 around 2001-02 to about 87,000 more recently. A lot of that is, conversely, good news in that we have more and more treatments that can keep these children alive for longer. Clearly, that requires the wraparound-type service that the noble Baroness is talking about. It is the responsibility of the ICBs to provide that; I will provide details of the progress of individual ones when we meet.
Baroness Wheeler (Lab)
My Lords, I emphasise that the task force recommended by Nuffield to oversee its key recommendations needs to get to work urgently. The family-focused research work with parents, including parent carers, about their experiences of shared decision-making with healthcare professionals on care and treatment, is vital, as is the comprehensive information and guidance for parents and staff that is called for across the 16 Nuffield recommendations. What timescales are the Government envisaging for this crucial work to commence and become operational, including guidance to clinical and ethical committees?
Lord Markham (Con)
My understanding, now that the task force composition has been set up, is that this will be arranged shortly. I completely agree with the noble Baroness that these are important, as well as often heart-wrenching, matters, so urgency is required. As I have said, good progress has been made in a number of areas. Already, the MoJ is setting up a round table on this. The regional conflict managers have been established. We have training courses online so that communication can improve. A lot is being done, and the task force will push that forward further.
Lord Jackson of Peterborough (Con)
My Lords, the Minister will know that there is currently an imbalance between the resources available to the parents and guardians of children involved in end-of-life care—particularly time, money and legal advice—and that of public bodies such as NHS trusts. Compounding that issue is the routine use of secret transparency orders, which prevent scrutiny and oversight of court proceedings, particularly in the family court. Does the Minister agree with me in that respect: that secret justice is no justice at all?
Lord Markham (Con)
Clearly, the processes on these terrible cases have got to be as transparent as possible. As noble Lords probably know, legal aid is automatically available in all these types of cases to make sure that there is a level playing field. I also think we all believe that there is a case for seeing whether we can use mediation more as, obviously, courts should only ever be a last resort.
Lord Allan of Hallam (LD)
My Lords, the Minister has already flagged communication as one of the key areas that comes through in the report, around both palliative care and care more generally. Can the Minister assure us that the task force will have the skills it needs to ensure that that communication can take place with parents from a variety of different backgrounds—educational, with different levels of medical knowledge and in different linguistic and cultural contexts?
Lord Markham (Con)
Yes, the noble Lord is quite correct. We know that, in many walks of life, so to speak, there are certain sectors of society that do not get the same level of provision and sometimes miss out. We had the debate last week on maternity provision and saw instances in relation to ethnic minorities as well as people with learning difficulties. We need to make sure that all the communications are there and that everyone is armed to provide the right levels of interface and communication in what are some really difficult cases.
Lord Watts (Lab)
My Lords, many families with critically ill children find it very difficult to access treatment because often specialist treatment is only available hundreds of miles away from where they live. That puts tremendous pressure on the family financially. Do the Government intend to do any more to help those families?
Lord Markham (Con)
Clearly, we would all agree that the families need to be the priority in these terrible cases. What we have tried to do—and I have also done my own research into this—is make available what I call independent funding requests for when there is a new course of treatment which might not be allowed generally by NICE to give opportunities in those instances as well. I will come back to the noble Lord on things such as travel support and other expenses.
Baroness Altmann (Con)
My Lords, I declare my interest in and my work with the Teenage Cancer Trust. In connection with the task force, will my noble friend let the House know what input charities that specialise in this kind of work with children and teenagers who, sadly, are in this position and their families will have into the task force? Will he join with me in commending the tremendous work done by this charity and the other charities which specialise in helping children and families going through this traumatic time?
Lord Markham (Con)
Yes, I am very happy to add my thanks for everything they do in this. It is clear in these circumstances that the more support we can give families, the better. I will speak to Minister Caulfield to make sure that input is properly there because my noble friend is correct that it should be there.
Emergency Services Network: Critical Communications System
(10 months, 3 weeks ago)
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Lord Harris of Haringey
To ask His Majesty’s Government when they expect the new Emergency Services Network critical communications system to be fully operational; and what is the latest estimate of the cost.
Lord Harris of Haringey (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I draw attention to my interests in the register.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the Home Office is procuring a new supplier for mobile radio and data services following Motorola’s withdrawal from ESN. This means the expected transition to ESN in 2024 and Airwave shutdown in 2026 cannot now be achieved. A revised business case will be published this year. This will reflect the impact of procurement activity and the charge control imposed by the Competition and Markets Authority on Motorola in 2023.
Lord Harris of Haringey (Lab)
My Lords, this is pretty poor, is it not? The programme was originally announced a decade ago. The switchover was supposed to start in 2017 and be completed by 2019. The original cost was a mere £6.2 billion; the last estimate—and that is two years out of date, before Motorola withdrew—was £11.3 billion. Only one network provider was prepared to bid. The National Audit Office warned that this is a technology
“not yet proven in real-world conditions”.
It is a system based on a mobile phone network, creating a single point of failure. Can the Minister tell us—given that the cost has at least doubled, implementation is at least 14 or 15 years late, and there is no guarantee that the existing Airwave system can continue beyond the year after next—if this debacle is not the fault of his department then whose fault it is and who is taking responsibility?
Lord Sharpe of Epsom (Con)
My Lords, the noble Lord has asked me a large number of questions. To reassure all noble Lords, there is no reason at all why Airwave cannot be extended beyond 2030. As for how we got to where we got, it is worth reminding the House that it was the Home Office that referred Motorola to the Competition and Markets Authority in April 2021; that resulted in Motorola leaving the Emergency Services Mobile Communications Programme in December 2022. My noble friend the Chief Whip answered a Question back in 2022 which mentioned the £11.3 billion figure referred to by the noble Lord. That was for a programme that was supposed to run between 2015-16 and 2036-37. Unfortunately, any estimates that I give now would not be comparable in duration or end date; the end date is now expected to be 2044. However, the CMA charge control imposed on Motorola will involve a saving to the taxpayer. The numbers are very much up in the air.
Lord Addington (LD)
My Lords, can the Minister assure us that the Government will look at the original tendering process to find out exactly why this went wrong, since it clearly has? As an aside, can the Government give us an assurance that no one from Fujitsu or its Horizon programme is let anywhere near it?
Lord Sharpe of Epsom (Con)
My Lords, I suppose this could have been spotted earlier, but the fact is that Motorola’s dual role in it arose as a result of the company acquiring Airwave at the same time as it was awarded the contract for ESN, so the Home Office’s options at that point were limited. We sought to agree measures to protect the delivery of ESN and, when it became clear that those measures were insufficient, the Home Office raised its concerns with the Competition and Markets Authority. As for future suppliers, the contracts will be awarded later this year, and I shall make sure that the noble Lord’s concerns are reflected.
Lord Coaker (Lab)
My Lords, the Government are supposed to be introducing a new emergency services network, but, as my noble friend pointed out, what the Minister has said leaves us all still bewildered about the actual implementation date. Perhaps he can tell us. The original date was 2017, but the implementation date is what everyone wants to know. When is it going to be working? When are we going to know that we have a new emergency services network? From what I could see, the Home Office stated that it would be 2029. Is that still correct? In other words, when can we actually have the new emergency services network promised by the Government?
Lord Sharpe of Epsom (Con)
I obviously cannot answer that question as precisely as the noble Lord would like. Yes, 2029 is an aspiration, partly because of the functionality of Airwave, to which I have already referred. However, some aspects of ESN are already live. Three ESN products have gone live in the past two years: 4G data connectivity for vehicles, which is called Connect; push-to-talk and messaging capability on smartphones, Direct 1 and Direct 2; and a device that can monitor and assess coverage on the move. Significant work has gone into the EAS, which is blanket coverage across the country, while much of the hardware has already been put in place. The noble Lord draws far too bleak a picture.
Lord Hogan-Howe (CB)
My Lords, I declare an interest, including having carried out a review for the Home Office, part of which the Minister has referred to, which is the recommendation to refer to the monopolies commission. As he explained, Motorola purchased the legacy system and was paid around £250 million, while for the new system that it was about to deliver it would be paid £50 million. There was no financial incentive to deliver anything, and, perhaps consequently, it has not.
The only thing that reassures me at the moment is that the Government are going to look smartly at whether to discriminate between the radio system and data production. The big problem is that, nowhere in the world, at pace and at scale, has anyone shifted a radio system on to a telecommunication system. That is the fundamental problem. The transmission of data is not the issue—we do that on our phones all the time—but we probably need to carry on delivering the radio as it was and separate the data off. If we continue to try to combine them, I worry that it will become even more undeliverable than it has been to date.
Lord Sharpe of Epsom (Con)
The noble Lord makes a good point and I thank him for his perspective. He is right that the radio supply over the networks remains critical. As I understand it—and this answers one of the earlier questions from the noble Lord, Lord Harris—the technology is more proven than it was when the PAC last commented on it. It is being rolled out in other parts of the world; from memory, Korea is one of the countries where it is being tested. So some of those aspects at least have been dealt with.
Lord Harris of Haringey (Lab)
My Lords, I apologise for coming back again, but the Minister is essentially implying that this just happened—that Motorola came in and bought Airwave, and these things just happened like that. But is not the reality that the negotiations were conducted between highly sophisticated multinational companies that are used to doing negotiations and a bunch of ingénues on the Home Office side? It is not surprising that the country has been ripped off in this way. Does the Minister agree?
Lord Sharpe of Epsom (Con)
No, that is a very unfair characterisation. As I said earlier, Motorola bought Airwave, which could not have been foreseen, and, therefore, as the noble Lord, Lord Hogan-Howe, has just pointed out, it became in effect a monopoly supplier. That is why the Competition and Markets Authority was involved at the behest of the Home Office, which did the right thing.
RAF Aerobatic Team: Historical Allegations
(10 months, 3 weeks ago)
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Baroness Anderson of Stoke-on-Trent
To ask His Majesty’s Government what assessment they have made of (1) the Royal Air Force Aerobatic Team Non-Statutory Inquiry Report, and (2) the Royal Air Force Aerobatic Team Command, Leadership and Management Report, published on 1 November 2023, relating to historical allegations of unacceptable behaviour within the RAF Aerobatic Team.
The Minister of State, Ministry of Defence (The Earl of Minto) (Con)
My Lords, the recommendations in both reports, the Royal Air Force aerobatic team non-statutory inquiry report and the command, leadership and management report, have all been accepted and implemented by the RAF. The findings of the investigations led to action being taken against personnel, up to and including dismissal from the service. Behaviours described by the witnesses in the reports are unacceptable and have no place in the RAF—or anywhere else for that matter.
Baroness Anderson of Stoke-on-Trent (Lab)
The culture outlined in the reports about the Red Arrows is not limited to the RAF. Last month, 60 women in the MoD Main Building complained about the hostile and toxic working environment they face. The amount paid in compensation by the MoD for bullying and harassment has doubled in the last four years. These facts will inevitably impact recruitment and retention across our Armed Forces. Can the noble Earl tell your Lordships’ House how it has come to this and what he is going to do about this seemingly pervasive toxic culture?
The Earl of Minto (Con)
The noble Baroness makes a very serious point. I have addressed it on a number of occasions from this Dispatch Box and continue to give the commitment that all the forces are absolutely determined to drive out any unacceptable sexual behaviour. There is nothing that goes on in the MoD now that does not address it. The question of zero tolerance has been brought back into focus and no fewer than four measures have been taken to address this.
Lord Soames of Fletching (Con)
My Lords, does my noble friend the Minister agree that this shows serious failure of command and leadership at both operational and command level? Is he satisfied that this matter was dealt with at a fast enough pace? It seems that the first complaints were made a very long time before anything happened. I would be grateful if my noble friend could look into that.
The Earl of Minto (Con)
My noble friend makes a couple of very good points. On the timelines, because one inquiry led into the next, it was very important that the thoroughness was followed the whole way through. The casework that fell out of the NSI, which then flowed into the chain of command investigation, and the casework and investigations required to follow that, made it appear a relatively slow process. In fact, it was not; it was going at quite a pace. There is an acceptance that there was poor leadership. Obviously, I cannot comment on individual cases, but all those responsible have been subject to appropriate action.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, the noble Baroness, Lady Brinton, is participating remotely.
Baroness Brinton (LD) [V]
My Lords, when the inquiry reports were published in November, the air chief marshal said that it was vital to challenge unacceptable and inappropriate behaviour and to
“stop, challenge, educate, and if necessary, report situations”.
What training is there for all military and MoD personnel to understand how to intervene and, in the words of the report, to stop this “bystander culture”?
The Earl of Minto (Con)
Those were some extremely good points from the noble Baroness. There is now training regarding endemic and unacceptable behaviour, which also addresses active bystanding. In this case, there is training regarding alcohol as well. A number of administrative sanctions are being put in place. Specifically in the RAF, another 55 positions on the personal support and HR side have been created to ensure that this is stopped.
Lord West of Spithead (Lab)
My Lords, 45 years ago, I did the study into whether women should serve at sea in the Royal Navy. I said that they should, and I think it has worked very well, although a lot of people were against it at the time. When I did the study, we had 55 destroyers and frigates. We now have 16. Does the Minister feel that that is too few?
The Earl of Minto (Con)
I thank the noble Lord for his question. Yes, I think it is too few; I think everybody knows that. But however many frigates and destroyers we have, the unacceptable behaviour must finish.
Representation of the People (Postal and Proxy Voting etc.) (Amendment) Regulations 2024
(10 months, 3 weeks ago)
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Baroness Penn
That the draft Regulations laid before the House on 11 December 2023 be approved. Considered in Grand Committee on 23 January.
Financial Services Act 2021 (Overseas Funds Regime and Recognition of Parts of Schemes) (Amendment and Modification) Regulations 2024
The Earl of Courtown
That the draft Regulations laid before the House on 4 and 11 December 2023 be approved. Considered in Grand Committee on 23 January.
The Earl of Courtown (Con)
My Lords, I beg to move the two Motions standing in the name of my noble friend Lady Vere of Norbiton.
Safety of Rwanda (Asylum and Immigration) Bill
Monday 29th January 2024
(10 months, 3 weeks ago)
Lords ChamberRead Full debate Safety of Rwanda (Asylum and Immigration) Act 2024 View all Safety of Rwanda (Asylum and Immigration) Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 17 January 2024 - (17 Jan 2024)
21:33 - Division on Lord German’s amendment to the Motion - Ayes: 84 / Noes: 206 - Lord German’s amendment to the Motion disagreed.
Lord Stewart of Dirleton
That the Bill be now read a second time.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, I begin by craving the indulgence of the Lord Speaker in your Lordships’ House. I had temporarily stepped outside to collect another piece of paper. With your Lordships’ indulgence I shall now begin to open, and beg that this Bill be now read a second time.
I am speaking to the House today as a member of the Government for the Bill, not in my formal law officer capacity, and my contributions and responses will reflect this.
The United Kingdom has a proud history of providing protection to those who are most in need, through our provision of safe and legal routes. Since 2015, we have offered over half a million people safe and legal routes into the United Kingdom through our Afghanistan, Ukraine and Hong Kong routes. This includes over 28,700 refugees, including over 14,000 children, via our formal refugee resettlement schemes. These established resettlement schemes play a key role in the global response to—
Lord Harris of Haringey (Lab)
I apologise for interrupting the noble and learned Lord when he has just got going, but I just wanted him to clarify his opening remarks. Is he saying that he is speaking to this House as a general government Minister and not in his capacity as a law officer—or did I mishear him?
Lord Stewart of Dirleton (Con)
The noble Lord heard me correctly. I remind the House of the convention that relates to law officers, whereby we do not divulge whether our opinion has been sought or the content of that opinion. It was in order to clarify my position—that I was not trespassing on that convention—that I spoke. I hope that that satisfies the noble Lord.
I was discussing the refugee resettlement schemes that this country has in place. These established resettlement schemes play a key role in the global response to humanitarian crises, saving lives and offering stability to those most in need of protection. However, our willingness to help those fleeing war and persecution must be tied to our capacity to do so, and critical to this is tackling illegal migration. There is nothing generous about allowing the status quo to continue; that would serve only the deplorable people smugglers who facilitate these dangerous crossings. It would only put more lives at risk and continue to strain our communities and public services.
As the Prime Minister has made clear, it is this Government’s priority to stop the boats, and I welcome the fact that this is a shared objective across your Lordships’ House. The Government are making good progress in stopping the boats. Last year, in 2023, small boat arrivals to the United Kingdom fell by around one-third, with Albanian arrivals down by over 90%, while we saw illegal entry rise elsewhere in Europe.
We have ramped up efforts to prevent crossings and disrupt the smugglers, with particular success stemming from increased collaboration with the French authorities. Our joint work with France prevented over 26,000 individual crossings by small boat to the United Kingdom. Since July 2020, the joint intelligence cell and French law enforcement partners have dismantled 82 criminal gangs responsible for people smuggling of migrants via small boat crossings. As of September 2023, immigration enforcement visits were up 68% compared with the same period in 2022. Last year, the Home Office arrested 92 individuals identified as small boat pilots and 253 people smugglers. In addition, during financial year 2022-23, the National Crime Agency conducted what is believed to be the biggest ever international operation targeting criminal networks suspected of using small boats to smuggle thousands to the United Kingdom. The operation saw the seizure of 135 boats and 45 outboard engines.
However, the increase in crossings in recent years means that around 51,000 otherwise destitute migrants are currently being accommodated in hotels, costing the taxpayer in excess of £8 million per day. The small boats problem is part of a global migration crisis. It is a challenge that most of us accept has no single solution, but this Government remain resolute in our commitment to preventing the misuse and evasion of our systems by illegal migrants, stopping these dangerous crossings and addressing the concerns of the British people. Operationalising the Rwanda scheme is a key part of the Government’s efforts to deliver this mission—a partnership which has always been part of the wider programme of work to deal with one of the most significant challenges of our time. It is only by fully implementing the migration and economic development partnership that we will create the strong deterrent necessary to stop these dangerous crossings and break the business model of the criminal gangs. Doing nothing is not an option.
The Supreme Court’s judgment on 15 November 2023 concluded that deficiencies in the Government of Rwanda’s arrangements for determining asylum claims could lead to risks of refoulement. But their Lordships also recognised, explicitly and in terms, that those deficiencies could be addressed in future. In response, the Home Secretary signed a new internationally binding treaty between the United Kingdom and the Government of the Republic of Rwanda which responds to the concerns raised and resolves those issues.
The Government also introduced this Safety of Rwanda (Asylum and Immigration) Bill, which buttresses the treaty, confirming that the Government of the Republic of Rwanda will fulfil their obligations under the treaty and supporting the relocation of a person to Rwanda under the Immigration Acts. The Bill is limited solely to the issue of the safety of Rwanda and relocations to that country and makes it clear that, with the new treaty, Rwanda is a safe country.
The Bill also makes it clear that Parliament is sovereign and that its Acts are valid notwithstanding any interpretation of international law. Let me make clear that the Bill does not “legislate away” our international obligations, nor does it seek to overrule or contradict the view of the Supreme Court. Its purpose is to say that, on the basis of the treaty and the evidence before it, Parliament believes those obligations to have been met and the concerns raised by the court dealt with, not that the Government do not care whether they have been or not.
The Bill creates a conclusive presumption that the Secretary of State, immigration officers and courts and tribunals must make decisions about relocation to Rwanda and review any such decisions on the basis that Rwanda is safe for the purposes of asylum and, in particular, will not send someone on to another country—the practice of refoulement, to which I referred earlier—in breach of the refugee convention.
The Supreme Court’s conclusions were based on the evidence submitted prior to the High Court hearing in September 2022 and did not—indeed, could not—consider subsequent work and efforts by and with the Government of Rwanda to strengthen the readiness of Rwanda to receive and support individuals relocated under the partnership.
Crucially, this has included work to bolster Rwanda’s asylum system in terms of both decision-making and processing by: delivering new operational training to asylum decision-makers; establishing clear standard operating procedures which capture new processes, and guidance in the asylum system on reception and accommodation arrangements, the safeguarding of vulnerable persons and access to healthcare; strengthening the Republic of Rwanda’s asylum system and appeals body; and strengthening procedural oversight of the migration and economic development partnership. When considered together with the legally binding provisions in the treaty, alongside the evidence of changes in Rwanda since summer 2022, this means that Parliament can conclude with confidence that Rwanda is a safe country.
Clause 2 also contains a clear notwithstanding clause, requiring courts to honour the previous clauses notwithstanding all relevant domestic law, the Human Rights Act to the extent disapplied by the Bill, and any interpretation of international law reached by the court or tribunal.
The Government remain committed to ensuring that rights and liberties are protected domestically, and to fulfilling our international obligations. We will always ensure that our laws continue to be fit for purpose and work for the people of the United Kingdom.
We recognise that some of the provisions in the Bill are novel. However, the Government are satisfied that the Bill can be implemented in line with both our domestic law and international obligations.
Lord Carlile of Berriew (CB)
My Lords, before the Minister sits down, will he tell us his Government’s reflections on the debate on the International Agreements Committee report in your Lordships’ House last week? Will also tell us, clearly, whether the Government intend to send anyone to Rwanda under the Bill before all those concerns are met?
Lord Stewart of Dirleton (Con)
I am obliged to the noble Lord for that intervention. On whether I deal with it in this part of the speech or it is left to the end, I will consult with colleagues.
As I was saying, the provisions in the Bill will ultimately allow us to deter people from taking unsafe and illegal routes into the country.
It is also clear to us all that people will seek to frustrate their removal through any means and, to prevent people from making claims to prevent their removal, the Bill disapplies elements of the Human Rights Act 1998. It disapplies Section 2 in relation to any systemic challenges to Parliament’s settled view that Rwanda is safe, Section 3 in relation to the whole Bill, and Sections 6 to 9 where the courts and others are considering whether Rwanda is safe and where the test that must be met before removal is whether it will result in serious and irreversible harm. In the context of the Bill, which deems Rwanda a safe country, this will ensure that people cannot frustrate removal by bringing systemic challenges in our domestic courts and, when considering any question relating to the safety of Republic of Rwanda, domestic courts and tribunals are not required to have regard to Strasbourg jurisprudence. It makes it clear that the courts and tribunals should defer to Parliament’s sovereign view that Rwanda is a safe country, as defined.
The Bill allows individuals to bring challenges against removal to Rwanda in exceptionally narrow circumstances, where there is compelling evidence relating specifically to their particular individual circumstances. The basis on which an individual may bring such a challenge is if they can demonstrate that there is a real and imminent risk that they would face serious or irreversible harm related to their particular individual circumstances if they were relocated. If people try to abuse this route by making claims without clear or compelling evidence, or in regard to general claims that they would be unsafe in Rwanda, their claim will be dismissed by the Home Office and they will be relocated from the UK before they can challenge that removal.
It is possible, but not necessarily likely, that those subject to removal may be subject to injunctions from the European Court of Human Rights. The Bill is clear that it is only for a Minister of the Crown to determine whether to comply with an interim measure of the Strasbourg court. It also makes it clear that domestic courts may not have regard to the existence of any interim measure when considering any domestic application flowing from a decision to relocate a person to Rwanda in accordance with the treaty.
The terms of the treaty that we have negotiated with Rwanda address the findings of the United Kingdom domestic courts and make specific provision for the treatment of relocated individuals, guaranteeing their safety and protection. The rule of law partnership that we have signed with Rwanda is a partnership to which both we and Rwanda are completely committed. The Bill, along with the treaty, puts beyond legal doubt the safety of Rwanda. We want to make sure that this legislation works. It is essential that we act now and do whatever it takes to stop people being manipulated into making dangerous crossings of the channel. Illegal migration is one of the most significant challenges of our time and the Government are acting in the national interest. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this is the third time in as many years that the Government have asked this House to consider legislation to stop boat journeys and to reform the asylum system—our third year of being presented with increasingly rushed, unworkable and inhumane solutions to the problem of small boats and asylum. There is a very real problem that needs fixing, but this Bill, like its predecessors, will not do so. The Opposition do not support the Bill or the schemes that underpin it. The record of votes cast at Second Reading in this place and Third Reading in the other place will attest to this.
However, the Bill completed all its stages in the House of Commons. Our role is not to undermine the will of the elected House, but nor is it to rush through legislation without due consideration. We must treat this Bill in the usual manner. We must scrutinise the details of these proposals and advise changes where we think the Government have got it wrong. We should not deny ourselves the opportunity to do so or our neighbours the chance to consider our work. In this spirit, we will not support the amendment from the noble Lord, Lord German.
The Bill, as it stands, threatens the UK’s compliance with international law. I know that this point will be spoken on at length in further stages, so I will not dwell on it for too long here, and nor will I speak for very long on what the Bill demands of our domestic courts. When introducing the Bill, the Secretary of State claimed that
“the UK is a country that demonstrates to the whole world the importance of international law”.—[Official Report, Commons, 12/12/23; col. 748.]
Is this the message that the Bill sends to the world about the UK’s respect for international law? How will the decisions we make now be cited in future when other countries are asked to follow international law or to respect human rights? Is this the contribution we want to make?
What does the Bill say about our respect for our own courts? If the treaty fails, if refoulement happens, if there is a coup or if asylum seekers are shot at or killed, the Government say that British courts cannot consider those facts.
It is a large price to pay for what is ultimately a hugely limited scheme. The Government have stated that the Rwanda Government have made an initial provision to receive a few hundred people. To put this figure in context I say that, over the first nine months of 2023, 63,000 people claimed asylum. Therefore, this Bill and this plan, even if they somehow worked out in exactly the way the Government hope, would relocate only a small proportion of asylum cases. Can the Government confirm whether Rwanda can still receive only a “few hundred people”? Can they outline what is to happen to everyone else?
Given that the Illegal Migration Act—a majority of which has not yet been brought into force—rests on the use of third countries rather than returns to countries of origin, are we right to question what will happen to the 99% of people who will not be sent to Rwanda?
We still do not know the full cost of this scheme. The Government have been reluctant at every stage to divulge the cost of this flagship policy. In December, the Secretary of State appeared to indicate that around £400 million will have been sent to the Rwandan Government by 2027. Can the Minister confirm this figure? It is an extraordinary sum of money, but not the whole picture. According to the treaty, there are additional per-person costs of the scheme.
The economic impact assessment for the Illegal Migration Act was published only after considerable pressure from noble Lords from across this House. In this document, the Home Office was prepared to tell us that the average imagined cost of sending an asylum seeker to a third country would be £169,000. However, the details of the treaty suggest that these costs may be higher for sending someone to Rwanda. Before we begin to fully debate the details of this legislation and its role in the implementation of the Rwanda plan, will the Minister be clear about how much this plan is actually going to cost?
This Bill, whatever its impact, will not address the state that our asylum system is currently in. The UK deserves a managed asylum system that upholds strong border security and that can process claims fairly, accurately and quickly—a system that can return those with no claim to stay and help those who rightfully seek sanctuary. That is not our current asylum system. We have a backlog of 100,000 asylum claims waiting for a decision, 40,000 people who have yet to be removed from the UK, and up to 17,000 people whom the Government cannot account for.
The pace of decision-making is improving, but the backlog that has been permitted to develop will take time to fully clear and more work is needed. Nor will the Bill help us to negotiate returns agreements. Threats to our compliance with international law undermine our ability to establish returns agreements with other countries. Far from helping us, the Bill may greatly harm our ability to reform our asylum system.
The Government have repeatedly said that they are motivated by a desire to see the end of criminal smuggler gangs and to prevent boat crossings in the first place, yet this is now the third Bill that seeks to end small boat crossings without any measures to directly target the gang activity behind them. In fact, the latest police workforce statistics show a fall in the number of National Crime Agency officers, the law enforcement body responsible for fighting back against smuggling gangs. Between March and September 2023, their numbers fell by 343 personnel. Four hundred million pounds is just under half of the total budget this year for the NCA. Would the Government’s money not be better spent increasing the size of operations fighting against human traffickers, working with our European counterparts and going after the supply chains?
This Bill, and the deal behind it, will do nothing to stop boats coming to our shores. The Government’s plan hinges on the idea that the Rwanda scheme presents a deterrent effect, without presenting any evidence that this will be the case.
It is certainly difficult to imagine what deterrent effect a 1% or 2% chance of being sent to Rwanda would have. It is even more difficult to imagine why this would stop criminal traffickers; nor would the Bill present those fleeing conflict and persecution with safe alternatives to channel crossings. Last summer, the Government committed to publishing a report detailing existing and proposed additional safe and legal routes. A report has arrived, but it contains no proposals for creating safe routes for those seeking asylum. Can we assume, then, that the Government’s additional pledge to implement any proposed new routes by the end of this year is to be broken too? This was an issue raised repeatedly in both Houses during the passage of the then Illegal Migration Bill, and it is disappointing that the Government have not taken the request seriously.
If we are to truly address the challenge of migration, we must accept that we cannot do so alone. The Government are acting as though the challenges here are not related to those in other countries, particularly those of our European friends. The UK lacks the leadership needed to succeed in a world now marked by increasing conflict, the climate emergency, and the erosion of law and order, all of which fuel migration. We need an approach that restores the aid budgets, puts a renewed focus on conflict mitigation and resolution, and seeks international agreements and co-operation—an approach that is workable, strategic, humane and rooted in the conventions that we have signed.
I will conclude shortly, but I want to mention that one colleague—my noble friend Lord Dubs—is unable to join us today. He is in Berlin taking part in events to mark the anniversary of the Kindertransport, which began in late 1938. In June, it will be 85 years since he arrived in Britain, having been put on a train by his mother in Prague. Although we miss his contribution today, we can be reminded of what and whom we gain when we play our part in helping those who flee conflict and persecution, and we look forward to his return.
I hope the House will not be deterred from changing the Bill where it sees fit: it certainly needs our help. I hope too that the Government, rather than trying to communicate through press conference, engage with this House in good faith and through more conventional channels. We are faced with a deeply broken system and layers of bad legislation, which have only made things worse. I hope that the Government rethink this Bill, this plan and this approach to migration, but I fear we will be left without the change we need until we change the Government.
Lord German
Leave out from “that” to the end and insert “this House declines to give the bill a second reading because it
(1) places the United Kingdom at risk of breaching its international law commitments;
(2) undermines the rule of law by ousting the jurisdiction of the courts;
(3) will lead to substantial costs to the taxpayer;
(4) fails to provide safe and legal routes for refugees; and
(5) fails to include measures to tackle people smuggling gangs.”
Lord German (LD)
My Lords, I direct the House’s attention to my interests as laid out in the register.
The treatment of asylum seekers and refugees, which this Bill is seeking to affect, is completely contrary to how we should act as a country with a reputation for protecting individuals’ rights and freedoms, where the rule of law is upheld. I do not need to repeat the key points of last week’s debate on the Rwanda treaty, but the decision of this House is significant in respect of the Bill. This House resolved that it could not ratify the treaty that the Government are using to declare that Rwanda is safe. The House determined that the safeguards and protections outlined in the treaty must be fully implemented. Moreover, the House agreed that future assurances of changes in the processing of asylum seekers in Rwanda were not sufficient: the changes needed to be fully operational and effective.
Significantly, the treaty is the instrument by which the Government declare that they can state in this Bill that Rwanda is safe. Clause 1(2)(b) is clear:
“this Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country”.
However, this House of Parliament has not determined that this is the case. The treaty is the platform on which the Bill sits. If this platform is not in place, the Bill sinks. The legs have come off the table, or, to put it another way, the Bill’s foundations have been removed. It was the settled will of this House last week that the treaty cannot yet be ratified. How, therefore, can this House consent to a Bill that relies on that treaty having the approval of this House?
This is critical, because the decision of the Supreme Court was based on its analysis of the facts. The contrary case put forward by the Government in the Bill has not been supported by this House. The Bill before us requires Parliament—which of course includes this House—to agree that, in our judgment, as a House, Rwanda is safe. This House, in this respect, needs to be consistent with itself, and with the decision it took last week.
The Bill places the UK at risk of breaching our commitments under international law. We as a country have signed up to comply with the obligations of international treaties and conventions. Having done that, we need to demonstrate that, as a country, we can be relied upon to uphold international treaties, and that we promote a rules-based international order—because if we do not then we cannot expect others to comply, and are in no position to call out other countries when they fail to comply with international law.
The West is often accused of double standards, and under this legislation this accusation will only increase. Our global leadership and our ability to have a serious voice on the world stage will be severely damaged. We will no longer be a country whose voice is respected and listened to. We simply cannot rely on our historical traditions when our current actions are going in the opposite direction. Global responsibility-sharing is the foundation of the 1951 refugee convention; it relies on us all doing our part. The Government say that this plan is a “partnership” and “burden-sharing”, but, frankly, it is offloading—offloading the most vulnerable people on our planet and offloading our responsibilities under international agreements we are signed up to.
If the Bill is enacted, we will be legislating contrary to our international legal obligations. Our domestic law would be out of step with these obligations. Some might say that is acceptable but I do not believe that is the case; I think this House will stand up for the object and the purpose of these international instruments to which we are signed up. Our courts would have their hands tied by this legislation. There is a strong possibility, particularly without pre-existing safeguards being proved operational and effective in Rwanda, that this would lead to refoulement and breaches of Article 2 and Article 3 rights. That is why it is critical for the steps set out in the treaty to be seen to be working before the Bill can have any effect.
The Bill introduces the option for Ministers to refuse to comply with a Rule 39 injunction from the European Court of Human Rights. Ignoring an injunction would be a clear breach of international law, as the president of the court declared last week, and this view is strengthened by the Rule 39 reforms which the court itself has introduced.
Domestically, the Bill undermines the rule of law and, further, ousts the jurisdiction of our courts. The rule of law is a central tenet of our society, expressed by AV Dicey, well-known to all lawyers, who wrote,
“we speak of the ‘rule of law’ as a characteristic of our country, not only that with us no man is above the law, but that here, every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”.
My noble friend Lord Thomas of Gresford will elaborate on this in his contribution.
The Bill seeks to exclude a group of people from accessing the legal protections we grant to everyone else in our society. It is critical in a democratic society that the law is applied equally and that human rights apply to everyone, not just some in our society. The Government’s Bill prevents the right to access redress, which is afforded to the rest of us.
Further, the Bill is an abuse of Parliament’s role in reversing the Supreme Court’s factual assessment of risk of harm in Rwanda. If the Government believe they have new evidence to show that Rwanda is safe, surely the correct procedure to follow is to let the courts decide it and consider the evidence and come to a judgment. That is the proper way to go. If Rwanda was indeed safe, there would be no need to have the option to ignore interim injunctions from the ECHR or disapply elements of the Human Rights Act. This Bill represents an overreach of Parliament, and it is critical that we retain the balance in our democracy achieved by the separation of powers.
Despite all this, the Bill will not actually achieve its stated aim, and it certainly does not represent good value to the taxpayer—£368 million at the last count, added to which at least £169,000 for each person removed to Rwanda. These are staggering, eyewatering costs, which could pay for 100 million free school meals or nearly 6 million more GP appointments.
Far from being a deterrent, the Bill will promote smuggling—a point which my noble friend Lady Northover will develop in her remarks. It does not address real solutions to prevent people using criminal gangs to take dangerous journeys to the UK. The focus on deterrence is misplaced. Two-thirds of all those who have crossed the channel since the Illegal Migration Act was passed came from six high-grant countries. The push factor for these people is far stronger than any deterrent the UK may dream up. We need safe alternatives to dangerous journeys, and this must be part of the strategy to reduce dangerous crossings. Swift, efficient, accurate and just determination of asylum claims and humane removal of those who do not qualify will be a deterrent in itself to people without a protection claim.
We also need constructive engagement with European neighbours on co-operation on asylum. Addressing the root causes of displacement and onward movement is critical, and a strong international aid and development budget is key to that. Instead, we are presented with a political totem of the Tory right—a device to satisfy its internal party politics and a Bill from which there is no going back. If Rwanda is found to be unsafe then this Bill will act as a block to putting matters right. This legislation was not in the Government’s manifesto; the Addison/Salisbury convention does not apply. I maintain that this is one of the rare occasions—which have been used by both Conservative and Labour parties in this House, and which was foreseen by a report of the Constitution Committee—when this House should vote against a Bill at Second Reading. It is within our powers as described in the Companion.
Lord Grocott (Lab)
I am grateful to the noble Lord, Lord German, for giving way. Does he agree that the function of this House, the second Chamber, is as a revising Chamber? It is not a vetoing Chamber; it is a revising Chamber. Can he explain to me the Liberal Democrat’s novel constitutional thinking that, by throwing out this Bill on Second Reading, we should prevent the revising Chamber revising?
Lord German (LD)
The noble Lord is wrong. I think in 2011 he voted against the Health and Social Care Bill at Second Reading, as had happened before, in earlier versions, by Members of the Conservative Party. If our laws and the rules of this House say we can do it then we can do it, and it has been done by both sides here.
I maintain that this Chamber should listen to the real power in what people will be saying this afternoon about the nature of this Bill. It asks us to believe that black is white—that facts are not facts. It breaches conventions and treaties to which we are signed up. It damages our credibility on the world stage and the agreements that we have with other countries. It seeks to damage our relationships with things that we have already signed up to, including the European convention on trafficking, the CTA with the European Union, the United Nations, the ECHR and many more. It damages the separation of powers in this country, which is a fundamental tenet of our democracy. It offends against the rule of law. Fundamentally, it treats some of the most vulnerable people in the world—people who are facing persecution and torture and fleeing for their lives—as undesirables. For us on these Benches, that is unconscionable. I beg to move.
The Earl of Kinnoull (CB)
My Lords, the United Kingdom is a three-legged stool. Each of the legs—the judiciary, the Government and Parliament—waxes and wanes a bit in its thickness as power shifts in small ways, a subject of much work and comment by my noble and learned predecessor, Lord Judge. However, each leg is required to operate independently to ensure that balance at the core of our democracy. It would not do for one of the legs to instruct another on how to operate or how to look at a particular issue. By way of example, it would be quite wrong if the House of Lords sought to instruct the judiciary on whether to hear a particular case.
I hope that the Prime Minister, sitting atop, as he does, the government leg of the stool, will reflect on those simple thoughts as he thinks back to his words of 18 January at the Downing Street press conference, concerning our role and this Bill. The duties of this House are inextricably linked with a series of conventions by which we, an unelected Chamber, cohabit with our elected neighbour. Among these conventions, the Salisbury/Addison convention is especially pertinent today and to the Bill in general. It has a number of parts but, simplifying matters for reasons of time, one is that a government Bill with manifesto characteristics will be given a Second Reading in this House. One can see that the convention has a number of people concerned about it and, as your Lordships know, I am currently preparing a series of papers on this convention. For my part, I feel that the convention is engaged here. Accordingly, I will not be supporting the amendment to the Second Reading Motion moved by the noble Lord, Lord German.
The convention also has elements concerning the speed with which this House will consider things. The House is already assisting the speed of consideration of this Bill. We have changed our business around and freed up today for Second Reading. Three days have been set aside for Committee, which, given the likely number of amendments that will be tabled, will work only if the House sits late—to at least midnight on probably two of those three days. However, I am sure that on those days, and nights, the Benches will be full and the quality of the debate will remain high, with our natural respectful tone. I expect that this House will send back various matters to the other place for its consideration—for it to think again—as is our role. I imagine that we will then enter a ping-pong phase.
Conventions will apply if agreement cannot be reached, but the elected House, at the end of the full due process, has the right to pass law, whether that be good law or bad law. In the meantime, this House will engage in our full processes, uncowed by any creaks and groans in the other legs of the stool.
The Archbishop of Canterbury
My Lords, in almost every tradition of global faith and humanism around the world, the dignity of the individual is at the heart of what is believed. In the Christian tradition, we are told to welcome the stranger. Jesus said:
“I was a stranger and you invited me in”.
In numerous places in the Old Testament and the New, the commands of God are to care for the alien and stranger. It has already been said, and I agree, that the way that this Bill and its cousin, which we debated in the summer, work is by obscuring the truth that all people, asylum seekers included, are of great value. We can, as a nation, do better than this Bill.
With the Bill, the Government are continuing to seek good objectives in the wrong way, leading the nation down a damaging path. It is damaging for asylum seekers in need of protection and safe and legal routes to be heard. It is damaging for this country’s reputation, which the Government contradicted even as late as last week, when the Prime Minister himself spoke eloquently on the value and importance of international law for this country. It is damaging in respect of constitutional principles and the rule of law.
Most of all, it is damaging for our nation’s unity in a time when the greatest issues of war, peace, defence and security need us to be united. We are united on, I think, almost all Benches, in agreeing that the boats must be stopped. The Government are to be congratulated that the number has come down. We also agree that the people smugglers who trade in human misery must be brought to justice, and it is good news that so many of those groups have been broken up. We need to be united on effective controls on agreed limits to immigration. The right way forward, though, is to enable the unity on ends to be translated into a unity on means. That is not happening in the way that these Bills are successively brought to the House and before the country.
The challenge of migration is, as has been said, long-term and global. So must our response be. We need a wider strategy for refugee policy—I spoke on this at boring length in the summer and will not repeat it—that involves international co-operation and equips us for the far greater migration flows, perhaps 10 times greater, in the coming decades, as a result of conflict, climate change and poverty. Instead, the Bill offers only ad hoc, one-off approaches.
Rwanda is a country that I know well. It is a wonderful country, and my complaint is not with it, nor its people. It has overcome challenges that this House cannot begin to imagine. But, wherever it does it to, the Bill continues to outsource our legal and moral responsibilities to refugees and asylum seekers—when other, far poorer, countries are already supporting multitudes more than we are now—and to cut back on our aid. At the end of 2022, 76% of refugees globally were being hosted in low- and middle-income countries—countries far poorer than our own. The UK should lead internationally, as it has in the past, not stand apart.
Others on these Benches will say more about international and domestic law, human rights and the constitutional impact. I say simply that a pick-and-choose approach to international law undermines our global standing and offends against the principle of universality that is their increasingly threatened foundation.
Finally, my colleagues and I on these Benches take our revising role seriously. When we vote, we seek to improve something. I will—sadly—not be voting with those who want to vote the Bill down today, although I found the speech by the noble Lord, Lord German, convincing and powerful. We must wait until Third Reading and we have done our revising work. We on these Benches have been criticised many times over many decades by those thinking that defence of the Government of the day should be our highest virtue and aspiration. We were accused last week of voting against the Government’s Whip. I am sorry to say we do not take the Government’s Whip. It may be worse news for this House to recognise that on the Labour Benches it is not 95% of times that there has been a vote against the Government’s Whip—that is a false statistic—but 100%. Maybe they should be criticised for that obnoxious behaviour.
We serve on these Benches as independent Members. As recently as last Thursday, we were discussing what had happened in a particular vote and saw that we had cancelled each other out—bishops often cancel each other out in every possible way. We vote because we value deeply the traditions of this country and this House, and the truth we derive from the Bible and our service to Jesus Christ—our first priority. To misquote Luther, slightly: on that we stand. We can do no other.
Baroness Goldie (Con)
My Lords, this Chamber has had to consider many complex and challenging Bills, as has already been observed. This Bill is in that category. Legal experts and experienced hands in the realm of international affairs in your Lordships’ House will have their views—we have already heard some of them—but I look at this issue through a different prism: one based on pragmatism, not party-political tribalism and certainly not ideology.
The exploitation of vulnerable, frightened people by repugnant criminal gangs and extortionists is unacceptable and must be stopped. Watching and listening to the harrowing accounts of overturned boats and drownings in the channel demands that action be taken. There is little dignity in any of that for these poor souls.
What I have gleaned is that, across the gamut of opinions about these perilous channel crossings, one inescapable conclusion is drawn: something must be done. The most reverend Primate referred to that. Paradoxically, with the exception of the Government’s proposals, I have seen no other credible, deliverable solution advanced—and I am afraid to say that, so far in this debate, that lacuna remains. So I have been prompted to speak in this debate in support of the Government not because I consider this measure excellent but because I think it is the only thing to do. I therefore do not support the amendment from the noble Lord, Lord German.
Why are the criminal gangs able to extort money from these vulnerable victims? Regrettably and tragically, it is because their victims, desperate to reach the UK, feel that any risk—even the risk of drowning in the channel—is worth taking, and the gangs ruthlessly exploit that desperation. The gangs could not care less about the safety of the migrants; all they care about is money. So we have to cut off that money supply, which will happen only if migrants seeking to come here illegally realise that they will not be able to stay here. I say to the noble Lord opposite that the examples of Australia and Albania indicate that that approach works.
Recent measures to reduce the flow, which have been referred to, can only ever be a mitigation. The Government are obliged to find a solution, and I believe that this Bill and the accompanying treaty provide it. This solution is not perfect, but I do not believe that a perfect solution exists. Those who believe it does have yet to produce it. I am clear that pragmatism has to usurp perfection. We have to act.
I am in no doubt that the Bill and the treaty place onerous obligations on the Government. I do not agree that the treaty should be delayed for reports to Parliament on how the arrangements are unfolding. We shall know how the treaty and the Bill are working only once the arrangements are being delivered in practice. There is no other way to make a meaningful assessment.
There are explicit safeguards in the treaty and in the Bill, but these require the UK Government to know in detail who has been sent to Rwanda, where they are, what is happening to them, the outcome of the individual’s application, and of course continuing engagement with the Rwandan Government. Without that information, the United Kingdom Government will not be in a position to assess whether these safeguards are being met. Can my noble friend the Minister reassure me on these points?
I am clear that parliamentary sovereignty is a uniquely precious attribute. It is fundamental to a nation’s democratic freedoms that, when a grave and extraordinary situation confronts that nation, the Government must be able to act, and act untrammelled. I am sure that it was never intended that the laudable arrangements entered into long ago by different nations would, as clamant challenges emerged, render those nations powerless to deal with them. That would be perverse. Mainland European countries are now wrestling with such challenges. That is why I believe that Clause 2 and the other provisions in the Bill are justified and necessary.
I will make two final points to my noble friend the Minister. In Scotland, we have a worrying skills deficit, incapable of supplement from the indigenous population. Are we clear that, where such deficits exist, we are realistic about the need to meet them, including from immigrant applicants?
In relation to asylum seekers, in my own community many volunteers have supported asylum seekers with language education, provision of clothes and including them in social activity, such as attending my own local church and church events. There now seems to be a Home Office instruction to disperse asylum seekers, separating them from that human contact and support. Is that a sensible approach? Can my noble friend the Minister offer me any reassurance on that point?
Lord Blunkett (Lab)
My Lords, I am pleased to follow the noble Baroness, for whom I have great respect, but telling asylum seekers to “suck it and see”—to find themselves in Rwanda and, if we have made a mistake, we might be able to do something about it—is frankly ridiculous.
The Minister clearly has a terrific job in reading out something he did not agree with. When he mentioned resettlement routes, which used to exist, the resettlement was from other dangerous parts of the world to the UK, not from the UK to other countries. This afternoon, in the brief time available, I will address that issue, because others have addressed and will address the questions of convention rights, morality, the reputation of this country and the clash between the different parts of our constitution. I happen to take a Jonathan Sumption view of the balance between Parliament and the courts.
One thing is absolutely clear in the Nationality and Borders Act, in the Illegal Migration Act, and now in this so-called Safety of Rwanda (Asylum and Immigration) Bill—this is nothing to do with finding solutions. It is everything to do with virtue signalling, with “virtue” in quotes, to a particular part of the electorate and finding scapegoats for government failure. The scapegoats are, of course, the Opposition, the courts themselves and this House.
This House cannot fall into elephant traps by allowing the Government to say that, if only they had been able to process this Bill, they would have shown the British people that this worked, but because this House declined to give a Second Reading, they were not able to. It is a very silly and old elephant trap, and anyone who falls into it needs to take a degree in politics.
I will say this about the issues before us today. It seems that Tory Members of the House of Commons did not understand the issue of the one-way ticket to Rwanda. You can understand the electorate not understanding something that we have never done before. In fact, we have said the opposite—time and again, the Government have said that asylum seekers should have chosen to claim asylum in the last country they were in. This is the last country they will have been in when they are sent to Rwanda and refused by the Illegal Migration Bill the right to claim—only to claim in Rwanda. In his wind-up, will the Minister say what they will be claiming—will they be claiming asylum in Rwanda? What happens if they choose not to claim asylum in Rwanda, having chosen to claim asylum in the United Kingdom under their convention rights? If they do not claim asylum, will they be at risk?
The UK judiciary are in massively short supply, by the way. I met a barrister this weekend who is defending an individual four years on from the alleged crime. Our judiciary, courts and criminal justice system are in meltdown, and we are going to send people over there to try to ensure that this is safe. When someone has their asylum claim processed and is duly accorded refugee status, why are they not allowed to come back to the United Kingdom?
If Giorgia Meloni, who is addressing African leaders today, can say that her offshoring proposals would allow return to Italy, Lord help us: the Brothers of Italy can do it, but our Tory Government in 2024 cannot. What sort of country are we? If they cannot return, then all the risks being debated on this Bill kick in, including what happens to the most vulnerable when they do not get proper treatment and support after their claim has been approved.
When their claim is approved and they are allowed to settle in Rwanda, what would stop them, in time, being able to come to the United Kingdom? Surely, they would have travel rights, or are they imprisoned in Rwanda? These are questions that I hope will be addressed at the end of this debate; but let us make no mistake, we are not dealing here with practical issues.
Yes, the Albanian agreement was a success, quite rightly; it is entirely responsible for the drop in numbers. However, there is no doubt in my mind that the threat to asylum seekers—it is not a threat to traffickers—is not the reason that we have had the drop so far. What will achieve that drop is Britain getting its act together: securing the borders, ensuring the processing and, yes, reaching further agreements with the French. What will not do it is the safety of Rwanda Bill, which is shoddy and less than this country deserves.
Lord Kerr of Kinlochard (CB)
I greatly admire the noble Lord, Lord German, but I cannot support his amendment. I dislike the Bill as much as he does. I explained at length in last week’s debate why I dislike it. In the time available today, I just want to add two points.
First, on sequencing, I was struck as a member of the International Agreements Committee by Rwanda’s rejection rate for asylum seekers from Afghanistan and Syria. It is 100%. Rwanda has always rejected them all, out of hand. That was one of the reasons why the IAC recommended, and the House last week resolved, that the new treaty should not be ratified until the reforms prescribed in the treaty have been implemented.
The Government clearly accepted the Supreme Court’s ruling that, without those reforms, their Rwanda scheme would be unsafe. The House agreed, adding that fine words would not be enough; what mattered would be implementation. Until the new systems are up and running, and none of them yet are, Rwanda cannot be deemed safe for those the Government want to send there. Yet that is precisely what Clause 2 of the Bill does. We are asked to deem Rwanda already safe now, today; and we are asked to require everyone—individuals and courts—from the moment the Bill becomes law, to treat Rwanda as safe.
This is Lewis Carroll country. In Alice, the Queen believes six impossible things before breakfast. To make sense of the nonsense, we have to get the sequencing right. It has to be: first, implementation, when Rwanda reforms; secondly, ratification, when Parliament is satisfied that Rwanda has reformed; and third, legislation—a Bill, maybe this Bill, when all are clear that Clause 2, on the determination of safety, is based on real facts and not Trumpian “alternative facts”. If the Government insist on reversing the right sequence, they must surely consider amending Clause 9 to introduce appropriate commencement conditionality, so that our Looking Glass world aligns with reality.
My other point concerns deterrence. Clause 1 of the Bill says that its purpose is to
“prevent and deter unlawful migration”,
and the Government make much play with the deterrent effect. I cannot see it. The Home Office Permanent Secretary could not see it either, or at least he could not quantify it and so justify the Rwanda scheme as providing value for money, just as the lawyers will not let the Home Secretary claim that it is compatible with convention rights.
Those seeking asylum here are fleeing from war, torture, famine and persecution. In the year to last September, 93,000 applied, with 46,000 having arrived on small boats. Much the largest groups came from Afghanistan, Iran, Eritrea, Sudan and Syria. Of those in these groups whose cases were considered—there is still a backlog of 165,000, 75% of whom wait for more than six months—the large majority were granted refugee status, over 99% in the case of Afghans and Syrians.
Our rejection rate verges on zero, while the Rwanda rate is 100%. It is hardly surprising that it verges on zero, as we knew all about the Taliban and the ayatollahs, the atrocities and the bombing. It is absurd to suggest that those people would not have tried to come here, risking the Channel passage, if they had heard about our Rwanda scheme. If you are an Afghan, now in Pakistan and at risk of being sent back, you have already faced far greater dangers than the Channel. Crossing the Mediterranean kills many more than the Channel. If you have made it to Calais, and 9,000 Afghans did last year, would you turn round and go home if we passed this Bill? Of course, you would not.
Let us suppose the Government had been able to send 200 people to Rwanda last year, as they hoped. That is 200 out of 46,000 people who arrived on small boats, so it is less than a 0.5% risk of Rwanda. If you had heard about it in Calais, it certainly would not have deterred you. Of course, there would be some deterrent effect if the Rwanda system stays unreformed, maintaining its 100% rejection rate, but the reforms, if they are implemented, will eliminate that. Any vestigial deterrence disappears as Rwanda reforms; the policy eats the policy. It is a Goya; Saturn is devouring his children.
I profoundly believe that the deterrence argument just does not stack up. The Rwanda scheme will not break the smugglers’ business model. What would put them out of business, as the noble Lord, Lord German, said, is new, safe and legal routes, but there are none in the Government’s Section 61 report, despite what we were led to expect. Like the Italians in Albania, we could try offshore processing but instead of offshoring, we are offloading, with a treaty that offloads responsibility in defiance of convention commitments and a Bill to create “alternative facts” in Africa. Next step, shall we legislate the sky green and the grass blue?
Lord Dobbs (Con)
My Lords, with Rwanda, rather like that venerated old Irishman, I would not have started from this point either. But we do, and so many countries are struggling: Germany, France, Greece, little Malta and even the muscular Turks, who have 3.5 million refugees massed on their southern border. The challenge is felt around the world, not just here.
I wish that we could have realised some years ago the world’s new direction of travel and accepted that the international conventions on human rights and refugees were created for a very different era before jumbo jets, before the criminal gangs and modern slavers, and before the scourge of mutant lawyers whose objective is not to uphold the law but to evade it. I wish we had reached out to others and tried to create new conventions and a new understanding of the challenges of mass migration, but we have not. While that must surely eventually happen, many countries are struggling with the short-term consequences.
This Bill is not our final destination. It is a means to a specific end and the end is clear: to break that sickening trade of the people smugglers, to protect the weak, the children and the vulnerable young women, and to smash the criminal gangs whose trade is human flesh.
I believe that we in Britain have come closer to living out Martin Luther King’s dream of racial togetherness than perhaps any other country in the world. I have spoken before in this House about that. It is work in progress, of course, but this dream, his dream, has taken root here. We are a good and a decent people, yet that is under significant threat. Look elsewhere: “Wir schaffen das”, Angela Merkel said. Oh no, she did not, and look at what is happening today in Germany as a result, and France and elsewhere: extremism and intolerance are on the rise.
No one is pretending that there are easy solutions but the problem is real, growing and a pressing and present danger to us all. Even here, we might find that we so easily fall back into those dark days when race was a dividing line that cut so deeply through our community. Yes, these are all connected issues, and no amount of hand-wringing is going to make them go away. There is no dignity of the individual to be found in a small boat in the hands of people smugglers.
To all those who have their doubts, who say that they do not like this direction and who claim the moral high ground, I simply ask: what is your alternative? How will you smash the evil trade? How long will you wait, watching the suffering and refusing to offer any hint of an alternative solution, content to sleep comfortably in your beds wrapped up in your consciences?
The Opposition, so silent about what they would do, say that we are rushing things through—words from the noble Lord, Lord Ponsonby, on the Opposition Front Bench. Delay, delay, they insist—or do nothing. It is the silence of the lambs. Ordinary, decent British people want us to do things more rapidly and believe that we have not moved fast enough.
Lord Dobbs (Con)
If I have it wrong, I very much look forward to hearing the specifics of what the Opposition would do instead. We will wait and we will wait.
Weigh a doubt against a certainty—the doubts about the destination to which we are asked to travel against the certainty that if we stand still and do nothing, the consequences for this country are likely to be catastrophic.
Lord Hennessy of Nympsfield (CB)
My Lords, to understand a nation and its people, you need a feel for the inner bundle of practices, characteristics and states of mind that create the image that a country carries of itself, which in turn shapes the way that others see it. For those of us fortunate enough to have been nurtured within the bounds of our cherished archipelago in the cold northern seas, the rule of law has a fair claim to be the most lustrous of our values, almost talismanic in its properties, so anything that threatens, weakens or tarnishes our crucial defining value, the inspirational principle for governing and living well together, is a first-order matter. I regret to say that the Bill before us falls into that category.
This is a moment of immense significance for Parliament, the judiciary, our people and the very quality of our democracy. In no way do I diminish the electric charge of the question that uncontrolled immigration generates, but I fear that the Government have become fixated on their talisman, the Rwanda policy, which Ministers claim will break the economic model of the cruel, evil, heartless people who put the boats and their desperate passengers to sea off the beaches of northern France. For what it is worth, my own view is that it cannot be beyond the capability of Whitehall to work up a scheme for the swift dispatch of asylum claims, with safe and humane shelter provided in the UK for claimants while they await the results of their applications.
By rushing this emergency legislation through Parliament with the intention of getting the deportation flights to Kigali under way by late spring, the Government have already secured for themselves a special place in British political history. The day may not be far off when the Rwanda Bill, having cleared all its parliamentary stages, will be forwarded from the Cabinet Office to Buckingham Palace to receive Royal Assent. In the few minutes that it takes to pass down The Mall and across the tip of St James’s Park on its return journey to Whitehall, our country will change, for the Government will have removed us from the list of rule-of-law nations. We shall be living in a different land, breathing different air in a significantly diminished kingdom. Is that what any of us really wants?
Lord Hannan of Kingsclere (Con)
My Lords, it is easy to list the defects in the Rwanda proposal; it is expensive and cumbersome and, as we were told at the beginning of the debate, has taken up an inordinate amount of parliamentary time without any guarantee that it will not yet be challenged in the courts. Let us admit that there is something slightly distasteful; there is an aesthetic objection to shifting the problem half way around the world. I get all that. I have heard all the arguments, including from many of the people in the Chamber now. As the noble Lord, Lord Ponsonby, reminded us, we have spent a great deal of time debating this—three times in as many years. I have heard those arguments very eloquently articulated, but I have not heard a plausible and credible alternative.
Politics is often a choice between imperfect outcomes. These days it is almost always such a choice. In an ideal world, there would be no need for a Rwanda scheme. We would have a Rolls-Royce Home Office bureaucracy where all claims were processed swiftly and immediately. In an ideal world, we would have no judges who push the limits in an attempt to overturn deportation orders. We would have a judiciary that rules solely on the basis of what the law says, rather than what it feels the law ought to say. We would have neighbouring countries that played by the rules of the game and took back people who had entered our territory improperly from theirs. In an ideal world, international conventions would have kept up with changing circumstances.
But the world we live in is not ideal; it is gross and sublunary, and we have to make choices that are less than perfect. We are deluding ourselves when we repeat pieties about smashing gangs, as though somehow, if you took away the people offering the supply, the demand would dry up. The demand comes not from gangs but from the fact that people understand what the figures say—that once you have entered this country, it is highly unlikely that you will ever be removed from it.
I also think there is a certain wishful thinking in what seems to be the main argument of the Opposition—I am willing to be corrected—which is that all this can be solved with better collaboration across the channel, as if that is something that nobody has thought of or tried before. I looked up the figures from when we were last subject to EU jurisdiction and covered by the returns agreement. In 2020 we attempted to return to other EU countries 8,502 people who should not have been here—people who had arrived here improperly—and succeeded in removing 105 of them. The rest of the EU tried to remove 2,331 people to the United Kingdom and we accepted 882, which is a significantly higher proportion. It seems very difficult to argue that a returns agreement with the EU would mean anything other than taking more people from the EU than we send there.
I will not argue that the Rwanda scheme alone will be enough to solve the problem; it will not even be the biggest component of it. There is more to be done on individual return agreements. I think there was agreement on all sides about the efficacy of the Albania scheme, as the noble Lord, Lord Blunkett, said. There is more to be done in speeding up claims and, yes, there is probably more to be done on collaboration. But it is part of a package to have some element of deterrence. The facts of geography mean that people have to pass through several safe countries on their way here. If they think there is a prospect that they will end up in Rwanda, even if it is a percentage chance and not a certainty, that is bound to have some impact on whether they make their final claim here or in another safe country en route.
It is in that spirit, and not in any great mood of joy or enthusiasm—rather in a spirit of grim realism—that I oppose the amendment in the name of the noble Lord, Lord German, and support the legislation.
Baroness Brinton (LD) [V]
My Lords, the noble Lord, Lord Hannan, speaks with his usual eloquence. One of the problems from our Benches is that he seems to think that it is an acceptable risk to breach the rule of law. It is that fundamental issue that my noble friend Lord German set out in his Motion, and that is why, unusually, this is something that we should vote against at Second Reading.
This weekend, the i newspaper reported:
“Four Rwandans have reportedly been granted refugee status in Britain over ‘well-founded’ fears of persecution … the cases are in addition to the six people who Home Office figures suggest had UK asylum claims approved between April 2022 and September 2023, according to the Observer”.
So how can the Prime Minister say that Kigali is “unequivocally” safe?
I want to raise a couple of issues in the short time that I have available on the details of how this will work. First, the noble and learned Lord, Lord Stewart, referred to access to healthcare, but the British Medical Association raised the important point that:
“The use of offshoring has previously led to asylum seekers being removed to countries where they are unable to access medical care they may need … Medical reviews of 36 people under threat of removal to Rwanda revealed that 26 displayed medical indicators of having been tortured”.
Is it right that people like that should be going elsewhere?
The government website on the agreement with Rwanda talks about age assessment for both accompanied and unaccompanied child asylum seekers. Article 3(4) says that the United Kingdom
“confirms that it shall not seek to relocate unaccompanied individuals who are deemed to be under the age of 18. Any unaccompanied individual who, subsequent to relocation, is deemed by a court or tribunal in the United Kingdom to either be under the age of 18 or to be treated temporarily as being under the age of 18, shall be returned to the United Kingdom”.
How is that going to work if they are assessed in Rwanda? How is the decision made on who are deemed to be under age, given the provisions of the Nationality and Borders Act 2022 and the Illegal Migration Act 2023, and the arrangements set out in the Rwanda treaty? Will an unaccompanied child or young person have been entitled to appeal prior to removal to Rwanda—or will, as the latter part of the paragraph implies, they be sent to Rwanda and assessed with all other asylum seekers, and only then returned to the UK? That is against the United Nations rights of the child declaration. Will Rwanda use age assessment, as we debated during the passage of the Nationality and Borders Bill and the Illegal Migration Bill?
I particularly want to ask about those who are accompanied and remain with their families—and it is good that families are kept together. But Rwanda does not have a secondary school system, so does the arrangement that is being made with Rwanda ensure that these children will have access to education, if they are of secondary age?
Open Democracy reported that:
“LGBTQ+ asylum seekers in Rwanda have previously been given immediate verbal rejections by officials responsible for registering applications, who said it ‘is not the place for them, or Rwanda does not deal with such issues’, according to evidence by the UNHCR submitted to the Home Office”.
So is it appropriate for these vulnerable people to be sent to Rwanda?
Finally, the Illegal Migration Act stipulates that, if someone arrives in the UK irregularly, there will be a duty on the Home Secretary to detain and remove them—even those arriving who are known to be victims of modern slavery. In the passage of that Bill in the Commons, Theresa May, former Prime Minister and Home Secretary, said sending people to Rwanda would
“consign more people to slavery”.—[Official Report, Commons, 11/7/23; col. 219.]
The noble Lord, Lord Dobbs, asked what opposition parties would do. We would ensure swift and effective assessment of cases. What we will not do is to send people to a country where we do not yet understand how the treaty will work, because what is said in the treaty is that there are arrangements proposed, but they have not yet been sorted. For vulnerable asylum seekers, that is not good enough. It is certainly not good enough for what any British Government and British Parliament should do.
Above all, for vulnerable people, Rwanda is not a safe place. As the treaty says specifically, there is much still to be sorted out. I believe that this House should not agree to the Bill at Second Reading.
Lord Paddick (Non-Afl)
My Lords, the movement of large numbers of people seeking asylum is in danger of overwhelming the international asylum system, as the Government’s policy statement on this Bill suggests, and this requires a different response. There appear to me to be two alternatives: work collaboratively with all countries affected, with a global response to a global problem; or take this Government’s approach, working in the United Kingdom’s sole interests, or, arguably, in the interests of party politics. As the most reverend Primate the Archbishop of Canterbury said in this House on 12 July last year,
“this is a massive, international issue on a generational basis and that tackling it needs profound thinking on a long-term basis ... It is essential that the solutions, as we go forward, bring together the whole of politics, all sides of both Houses, and unite our country instead of using this as a wedge issue to divide things”.—[Official Report, 12/7/23; col. 1872.]
The most reverend Primate reiterated that this afternoon.
The Government quote figures from last year, when boat arrivals into mainland Europe apparently increased by 80% while boat arrivals into the UK fell by about one-third, according to the Minister in his opening remarks, as if this were some kind of victory. I am sure that for domestic party-political purposes it might look that way, but I doubt our European neighbours see it in the same light: “I’m all right, Jack” does not translate well in continental Europe.
The Government insist that the Rwanda scheme is only one part of their plan to “Stop the boats”, co-operation with our European neighbours arguably being a far more important part of the plan. What will our European neighbours think if, as the Prime Minster seems intent on doing, the United Kingdom ignores so-called pyjama injunctions issued by a so-called foreign court? Of course, what the Government are referring to are Rule 39 indications issued by the European Court of Human Rights, an international court of which the UK is a member. As the noble Lord, Lord German, said, last Thursday the President of the ECHR said:
“Where states have in the past failed to comply with rule 39 indications, judges have found that the states have violated their obligations under Article 34 of the convention”.
If the Government decide that, like Russia, they no longer wish to be bound by international law, because, like Russia, they do not agree with the decisions of judges of the ECHR, then they should ask Parliament to remove the United Kingdom from the European Court of Human Rights. Two days on from Holocaust Memorial Day, perhaps we should remember why the UK was instrumental in establishing such a court and consider the impact such a withdrawal would have on the willingness of our European neighbours to co-operate with us on this issue.
What other steps might ease the flow of asylum seekers? A representative of the International Organization for Migration told the Radio 4 “Today” programme this morning that what drives people to migrate is that they feel they have no options in their home country, with climate change overtaking conflict as the biggest driver. If the Government were serious about doing whatever it takes to stop the boats, why have they pushed back the deadlines for selling new petrol and diesel cars and the phasing out of gas boilers? Why have they announced plans to issue hundreds of new oil and gas licences, and given the go-ahead for a new coal mine that will produce an estimated 400,000 tonnes of greenhouse gas emissions a year? Why have they reduced overseas aid from 0.7% to 0.5% of gross national income, while spending almost 30% of that budget in 2022 on housing asylum seekers in the UK, rather than spending it overseas? I am not saying that these are not legitimate political decisions, but they are not consistent with the claim that the Government are doing everything they can to stop the boats.
Doing everything the Government can to stop the boats should include doing whatever they can to encourage co-operation with our European neighbours and to improve conditions in asylum seekers’ home countries. They should not ignore or withdraw from the European Court of Human Rights; they should reinstate their previous commitments to combat climate change and their commitment to 0.7% on overseas aid—what one might call a strategic approach. As the noble Lord, Lord Ponsonby, and the most reverend Primate have said, this Bill is not the answer.
Lord Howarth of Newport (Lab) [V]
My Lords, the Bill exhibits several characteristics of this Government. Exhibit A is their contempt for the courts, the rule of law and the constitution. They are smarting at the judgment of the Supreme Court, which found conclusive factual evidence that Rwanda was not a safe place to send asylum seekers. The court found “serious and systematic defects” in Rwanda’s procedures for processing asylum claims. The Rwandan authorities practice refoulement and have breached an agreement with another country, Israel, on that issue.
Rwanda’s President, Paul Kagame, has ruled by dint of rigged elections and contempt for civil rights. He despatches his agents to murder political opponents. He targets journalists who report killings, disappearances and torture. Even as the Government have been insisting that Rwanda is safe, Home Office officials have been giving asylum to Rwandan dissidents, accepting that they have a well-founded risk of persecution. The Government’s policy is morally and practically chaotic. It is a monstrous fantasy to assert that, by hastily negotiating a treaty with the regime and by legislating to declare that it is safe, Rwanda thereby becomes safe.
The Bill is unconstitutional. It usurps the function of our domestic courts. It ousts their jurisdiction in regard to its main provisions. It requires tribunals and courts to treat Rwanda as a safe country, whatever the reality may be and notwithstanding any existing provision of statute, common law or international law. By giving Ministers the power to refuse to comply with the interim rulings of the European Court of Human Rights and preventing a UK court having regard for them, the Government show particular contempt for a court that we were once proud to have been instrumental in establishing.
The Government are also suborning the Civil Service. By obliging civil servants to act on a basis they know to be false, the Bill would legitimise and institutionalise dishonesty in Whitehall and its agencies.
Exhibit B is therefore the Government’s denial of reality. The persecuted of the world will not be deterred from seeking asylum in Britain by this policy—they will not understand the law. The traffickers will not break their own business model by informing their clients that there is no point in them travelling to Britain. The traffickers, who get paid before they launch the small boats, will have no incentive to desist. The former Immigration Minister, Mr Robert Jenrick, who is the biggest enthusiast for deporting asylum seekers to Rwanda and deeply informed, says the Bill will not work. Clause 4, which provides limited scope for individual cases to be heard in our courts, intended to provide a veneer of conformity with international law, creates a major loophole.
Exhibit C is the cruelty of the policy the Bill seeks to implement. Desperate people, fleeing from persecution and danger to their lives, instead of being greeted with compassion, respect and help, are to be deported out of hand. To despatch people who may well be suffering the physical after-effects of torture, and whose mental health is highly likely to have been damaged by their experience as asylum seekers, to a country with an underdeveloped health system is horrible.
Exhibit D is political misjudgment. This would-be populist appeal to the worst in human nature is to misread the British people. The great majority of the British people do not want to see their Government acting cruelly; they want to see fair play, competent administration and the rule of law upheld.
Exhibit E is obsession. What the Government would have us believe is a great crisis—an invasion by foreigners in small boats—is a confected crisis, blown out of all proportion. In the peak year of 2022, 46,000 people crossed the channel in small boats, whereas 1.2 million migrated legally into the UK. According to the Migration Observatory, 86% of asylum seekers arriving in small boats whose cases were determined between 2018 and 2023 were granted refugee status or permission to stay. By closing off safe and legal routes, while disingenuously pretending their purpose is to save lives, the Government have forced these people into acting illegally and then scapegoated them.
Instead of cynically buying ourselves out of our obligation, the Government should deal humanely and competently with these arrivals. Instead of the literal displacement activity that the Bill exhibits, the Prime Minister should focus on the real ills and challenges of the country.
Lord Etherton (CB)
My Lords, there are so many impermissible aspects to this Bill that it is difficult to know where to start. There is the overarching point that the Rwanda treaty—which underpins the central theme of the Bill that Rwanda is a safe country—has not yet been ratified, and then there are all those aspects of the Bill which contravene our constitutional norms or breach our international obligations.
The Bill seeks to pre-empt any future consideration by the courts on the factual question of whether Rwanda is a safe country. This is a blatant usurpation of the judiciary’s function. Contrary to Article 13 of the European Convention on Human Rights, the Bill contains no domestic remedy should the courts conclude at any time that the Bill is incompatible with Articles 2 or 3 of the ECHR. The courts could make a declaration of incompatibility under Section 4 of the Human Rights Act, but that would not be an effective remedy in the present case, as it is plain that the Government have no intention of complying with their obligations in so far as they conflict with the Bill.
Clause 4, which provides for a decision not to remove based on compelling evidence relating specifically to a person’s particular individual circumstances, is inconsistent with established jurisprudence that, for members of a particular social group within Article 1A(2) of the refugee convention who have a well-founded fear of persecution, it is sufficient merely to establish membership of such a social group. This is of particular importance to LGBT+ people. I was given assurances from the Dispatch Box during the passage of the Illegal Migration Bill by both the Minister and the noble Lord, Lord Murray of Blidworth, that the principles found in the 2010 Supreme Court case HJ (Iran) would continue to apply. They expressly confirmed that, if the open expression of a person’s sexual orientation would prevent them living in a third country without facing persecution, that would constitute a risk of serious and irreversible harm. Rwanda is such a country, as the Government accept and as the current travel advice of the FCDO describes.
Clause 5, which gives Ministers a discretion to ignore interim measures of the ECHR, plainly breaches the convention. It would deny a refugee an effective right to apply to the European court and be in direct conflict with the obligation to comply with decisions of the court. In its latest analysis, the UNHCR has repeated that the Bill represents impermissible burden-shifting in contravention of the refugee convention.
Finally, the proposed Rwanda treaty does not remedy the human rights deficiencies in Rwanda—other than refoulement—mentioned in the Supreme Court judgment. I have already described the hazardous situation there of LGBT+ individuals seeking to live openly, consistent with their sexual orientation.
What conclusion can we draw from all this? The Bill is a travesty of our constitutional and legal norms and our historical moral standards.
Baroness Whitaker (Lab)
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Etherton, who is among those noble Lords who have shown authoritatively and powerfully the moral, constitutional, legal, financial and practical difficulties of this Bill. In the time available, I shall focus on three narrower points: how safe Rwanda is; where public opinion lies; and how alien to us are the laws this Bill proposes to breach.
First, the measures in Clause 3 of the Bill and set out in detail in the treaty, intended to meet the arguments of the Supreme Court that Rwanda is not safe, are not in place. It is therefore just not possible to accept that Parliament can decide, by passing this Bill as it stands, that Rwanda is safe, as was extensively discussed and agreed in the debate on the report of the International Agreements Committee.
At present, Rwandans flee to Britain. Will the Minister tell the House what was the well-founded fear of persecution of each refugee from Rwanda granted asylum here since 2022? How many Rwandans have our police warned to beware of assassination by Rwandan government agents? Is it the case that Rwanda will not take LGBT refugees and that blasphemy is a crime there?
Secondly, the Prime Minister has warned parliamentarians not to defy the will of the people by finding fault with the Bill. In fact, YouGov—widely respected—polled on 17 January that a majority did not support getting the policy through and thought that the proposals were not effective or not very effective. Only 19% thought they were value for money. Members in the other place cited Savanta’s findings that 72% of Britons were dissatisfied with the policy—hardly a ringing endorsement. As the noble Lord, Lord Kerr, has noted, the Permanent Secretary of the Home Office told the Select Committee that he could not supply value-for-money figures. I ask the Minister: can we see them now?
Thirdly, as regards the so-called foreign laws—that is, international law, which members of the government party have decried as alien to the processes in the Bill—the clue is in the name: international, or, literally, between nations. These treaties and conventions were hammered out with full, often leading, British participation. They are our laws too. Usually, when a new Government are elected, they undertake to honour the international agreements made by previous Governments. I ask the Minister: did his Government do so?
In conclusion, this Bill would allow contravention of laws we are party to. It abrogates the rule of law to achieve unknown and possibly dangerous results at vast expense to the taxpayer, in order to get rid of a very small proportion—probably less than 1%—of the asylum seekers who arrive in boats. As currently drafted, it looks like a desperate and absurd answer to a real and tragic problem, but I await the Minister’s answers.
Lord Anderson of Ipswich (CB)
My Lords, the policy of offshoring asylum seekers for assessment and resettlement abroad will indeed be costly, to judge from the down payment already made. Its likely deterrent effect is at best uncertain. However, as a lawyer, I start by acknowledging three things. The policy was given statutory force in the Illegal Migration Act, which we passed last year. It is consistent in principle with the refugee convention, which does not oblige us to settle asylum seekers here, but only to avoid sending them to places where their lives or freedoms are threatened. The principle was not called into question by the Supreme Court’s recent ruling.
The only issue that remains is safety. This Bill, said the Minister in the Commons,
“puts beyond … doubt the safety of Rwanda”.—[Official Report, Commons, 12/12/23; col. 751.]
How could it? The Supreme Court has already found that Rwanda operates a profoundly dysfunctional asylum system. We know from our own International Agreements Committee, whose conclusions we supported last Monday, that work still needs to be done to build institutions, change attitudes and monitor compliance. A solution may be within our grasp, but it is not a legal fiction, still less a legal fantasy. A way must be found of determining whether Rwanda is and will remain safe in reality.
When we are concerned about the safety of a country, we often consult the Foreign Office travel advice. Expertly informed and responsive to events, it is a valuable resource. However, in expecting Parliament to come to a judgment, in the words of the Bill,
“that the Republic of Rwanda is a safe country”,
the Bill makes no provision for expert scrutiny, second thoughts or revision of that judgment. Flattering as it may be for some of us to be treated as infallible, to cast Parliament as decision-maker in this changeable and fact-specific context is fraught with constitutional danger. If we are persuaded to take on that role, we will surely need, at least—as the noble Lord, Lord Kerr, has hinted—an independent body on the ground to tell us when the deficiencies already identified have been remedied, and a mechanism for ensuring that, when conditions change, the verdict can change.
Ouster clauses—even partial ousters such as those in Clause 4—are among the most fundamental attacks on the rule of law because they challenge, as the noble Lord, Lord German, said, Dicey’s first principle. Indeed, more impressively still in my book, they challenge the first principle of my noble friend Lord Hennessey that nobody—not even the Government—is above the law. However, the very seriousness of these issues means that we owe the Commons the courtesy of our careful consideration of them. For that reason, I will not support the amendment in the name of the noble Lord, Lord German, tonight.
Finally, I turn to Clause 5, with its proposed exclusion of the right to seek interim measures from the Strasbourg court. I view with dismay the proposal to defy successive rulings of the court, whose opinion on the matter is decisive under Article 32 of the ECHR, to the effect that these measures are binding on the states party to the convention. As we acknowledge in our own legal systems, and have previously acknowledged in this context too, the effective adjudication of any case can depend on a workable system of interim measures. Perhaps the Minister will tell us whether interim measures will be a feature of the new Rwandan asylum law, which, as far as I am aware, no one has yet seen.
We did, it is true, in the end accept Section 55 of the Illegal Migration Act, but that was presented as a negotiating ploy—perhaps a productive one, since the court is now in the course of improving its procedures for interim measures. This clause, however, is different. No such conditions are mentioned in it. The crocodile, having devoured the bun offered by the international court, now proposes to kick it into the water with a casual swipe of its tail. Some will say that this pass is sold, but I hope that, if only out of self-respect, your Lordships will push back hard at this casual dismantling of international protections that are as necessary now as they ever were.
The Lord Bishop of Durham
My Lords, I declare my interests as laid out in the register. I stand in agreement with the arguments already made regarding the domestic constitutional, international standing and human rights concerns surrounding this Bill. I echo the belief that we should not outsource our moral and legal responsibilities to refugees and asylum seekers. However, today I hope to bring some insight to this debate through my own experience of Rwanda.
Rwanda is a country that I love. It is a country that I have travelled to on 20 occasions since 1997. I have observed the amazing transformation of Kigali and some aspects of the whole nation. My visits take me to rural villages, small towns and cities, not simply the glamour of a great international city. I have had the privilege of becoming friends with many local people whom I have met and stayed with there. The conversations I had there last August further led me to conclude that this policy will simply not work.
Under the new UK-Rwanda treaty, Rwanda is required not to remove any person relocated under this partnership. Instead, those sent to Rwanda will remain in the country and live there for the foreseeable future. However, is Rwanda truly capable of delivering the support and opportunities required for each of these refugees and asylum seekers to rebuild their lives? Can Rwanda offer enough employment opportunities for them to provide for themselves, when many of its young people are leaving because there are no jobs? In Rwanda you need Kinyarwanda and English. Will adequate language training be available to enable those sent there to successfully integrate? Locally, also, Kigali residents know where a few hundred might be initially housed—they offered to take me to see it—but seriously wonder how thousands would, or even could, be received with dignity.
From what I have observed during my time spent in Rwanda, there will not be enough in all of these areas. Low incomes in the country require people to rely on their own land to provide crops. However, those removed there from the UK will not have ownership of, or access to, such land. In a country without high levels of social security, who will ensure that these people do not face destitution?
Each time I have travelled to Rwanda, I have been met with great kindness and hospitality. I am aware, though, that this is not the case for every individual who steps foot on Rwandan soil. I note, for example, the arrest of pastors who criticised the Government in 2018, following the closure of churches due to legislation, some of which made sense. How can we ensure that Rwanda is safe for people of all faiths to practise their religion? Courts and decision-makers should not be compelled to treat Rwanda as safe without a commitment to ongoing scrutiny. Simply put, the Bill is not workable either in the UK or in Rwanda.
My right reverend friend the Bishop of Bristol regrets that she cannot be in her place today, but I express her concerns that the Bill might also create a greater risk to victims of modern slavery. There is reason to be sceptical that survivors will be as safe in Rwanda as they would be in the UK. According to the 2023 Global Slavery Index, prevalence of modern slavery in Rwanda is more than twice as high as in the UK, and Rwanda is not a signatory to ECAT.
I further worry that this legislation will apply to people who have been receiving support through the UK’s national referral mechanism for some time. Could this support be replicated to the same quality in Rwanda, and what would be the impact of removal of any such people on their physical and mental health? My right reverend friend the Bishop of Bristol will seek to pursue this issue in Committee.
We are speaking of some of the most vulnerable people, many of whom have experienced the devastation of war and conflict, leaving behind their homes and livelihoods. They are human beings, each with value and deserving of dignity. We need solutions where people are provided with adequate support and opportunities to rebuild their lives. I and many others in this House have made many proposals as to how this can be done better. I am afraid that the Bill will not achieve it.
Lord Clarke of Nottingham (Con)
My Lords, last year I listened to quite a lot of the debate during the passage of the Illegal Migration Act and contributed to it once or twice. I had difficulty making up my mind as to whether I was going to support that Act. Eventually, although I expressed my reservations about whether Rwanda was a suitable place, I was persuaded that it was a good thing to support and I gave it my backing. Unfortunately, in the light of subsequent events we now have this Bill. At the moment, having considered it carefully, I must say that the details of the Bill, or its main point as in Clause 2, are a step too far for me, so I do not think I could possibly support it unless it is substantially amended as it goes through this House; we should urge the Commons to revise it.
My motive was that, first, it is necessary to have a credible and effective policy on illegal migration. It is a big problem and it is growing. It is small in relation to our total migration but its symbolic effect on public opinion is very important. The public need to be reassured that we have control of immigration into this country; if they think we have lost control, that threatens a very nasty change in public attitudes caused by doubts. We should all be proud of the relatively strong, multicultural and multi-ethnic society we have created in this country, much more successfully than most other European countries. That will be threatened by reactions to illegal immigration if it obviously starts to grow again and gets out of control.
The only policy I have heard in the debates so far, either here or anywhere else, that really resembled a possible working policy was that of using a safe third-party country to consider the refugee status of applicants. I listened to the debates here, most of which were legalisms and arguments about international law—which I last studied for my postgraduate degree and which I have never practised. I thought that the safe third country proposal—if you could find a safe third country—was worth a try, and I continue to back it in principle.
That policy hit a brick wall when it got to the Supreme Court. It failed there not because of any finding of international law that a policy of using a safe third country was in any way contrary to any convention, such as the refugee convention or the European Convention on Human Rights. The Government were defeated on an issue of fact. Five Supreme Court judges considered the evidence submitted to the High Court, and all five of them were persuaded that on that evidence, which they had heard arguments testing, Rwanda was not a safe country for this purpose, particularly because of the risk of refoulement. That brought the Rwanda aspect of the policy completely to a stop.
The Government’s reaction, which we are asked to approve, is quite startling to me. They have decided to bring an Act of Parliament to overturn a finding of fact made by the Supreme Court of this country. If we pass this Bill, we are asserting as a matter of law that Rwanda is a safe country for this purpose, that it will always be a safe country for this purpose until the law is changed, and that the courts may not even consider any evidence brought before them to try to demonstrate that it is not a safe country.
That is a very dangerous constitutional provision. I hope it will be challenged properly in the courts, because we have an unwritten constitution, but it gets more and more important that we make sure that the powers in this country are controlled by some constitutional limits and are subject to the rule of law. Somebody has already said in this debate that Parliament, claiming the sovereignty of Parliament, could claim that the colour black is the same as the colour white, that all dogs are cats or, more seriously, that someone who has been acquitted of a criminal charge is guilty of that criminal charge and should be returned to the courts for sentence. Where are the limits?
As time goes by in my career, I always fear echoes of the warnings that Quintin Hailsham used to give us all about the risks of moving towards an elected dictatorship in this country. The sovereignty of Parliament has its limits, which are the limits of the rule of law, the separation of powers and what ought to be the constitutional limits on any branch of government in a liberal democratic society such as ours.
The way this should be resolved is for the Government to say that the facts have changed. We are not hearing or testing arguments. I am meant to cast a vote as to whether Rwanda is safe, and I have received an email, the text of the Government’s treaty and the Explanatory Notes. I do not have the expertise on Rwanda that the right reverend Prelate the Bishop of Durham has just demonstrated. I have never been there. I know that it has been a one-man dictatorship for more than 20 years, that we sometimes give refugee status here to people fleeing persecution in Rwanda and, indeed, that it has a rather dodgy record—not as bad as some African countries—on human rights in various respects. I am not surprised by the judgment.
The Government say that things have changed, but I have no means of testing that, and I agree with all those who have said that change is subject to the Rwandans actually complying with the treaty, to the training being effective, to change on the ground reaching the required standard and to periodic checks being made of that. That is not what Clause 2, which we are asked to approve, sets out.
I hope we consider this Bill with very particular care. I will probably be attracted to support some pretty startling amendments that go to some of the main purposes in the Bill. If the Government wish to demonstrate that the facts have changed, some means should be found of going back to the court, facing another challenge, having a proper hearing of up-to-date evidence in the light of demonstrated improvement in the situation of Rwanda and getting a fresh judgment, if necessary, from the Supreme Court.
Meanwhile, search for other safe countries. Do not vote for the Liberal amendment today because, as the noble Lord, Lord Blunkett, said, although I would love to see the Conservative Party got out of this particular mess, the main effect of the amendment would be to get the Government out of the hole that they have dug for themselves. They have based far too much on this Rwanda policy, putting it at the heart of their political ambitions for the election. To be able to turn around and say that they would have stopped the boats but the unelected House of Lords, the Liberal Democrats and the metropolitan elite stopped them would save this Government from what I think are their follies in crashing on with this policy in this way, and I hope we will not fall into that trap, at least, in our proceedings.
Lord Thomas of Gresford (LD)
My Lords, it is a great pleasure to follow the noble Lord, Lord Clarke, since he sets the foundations of what I am about to say. I agreed with everything that he said except his conclusion.
This Bill does two things. It creates a legal fiction that Rwanda is a safe country for asylum seekers and it purports to exclude the courts of this country from examining that fiction. Let us first consider the morality of creating a legal fiction that a country is a safe haven for an asylum seeker when in fact, as the Supreme Court has found and this House has agreed, it is not. Is it in accordance with the ethical standards which the British people were once proud to carry across the world to deal with refugees from oppression, or indeed, any person within this jurisdiction, on the basis of a lie—a lie which may put their very lives in danger, not least for the reasons given by the right reverend Prelate the Bishop of Durham?
How is that legal fiction, this lie, to be created? By the “judgement of Parliament”. This is a new constitutional concept. It is certainly not a judgment in the legal sense, which requires an impartial tribunal, weighing the evidence and arguments on both sides of an issue and coming to a considered conclusion. How then is the “judgement of Parliament” to be ascertained? By a majority vote? In which case, the upper House of Parliament has determined that, for the moment, Rwanda is not safe. It seems that the Government construe the “judgement of Parliament” as a majority vote in the House of Commons only.
Your Lordships will quickly appreciate that the so-called “judgement of Parliament” is a very different animal from a legal judgment of the Supreme Court. “Judgement” is even spelled differently in the Bill from the conventional spelling of a court judgment. It cannot subsume or supplant the legal judgment of the Supreme Court. In our constitution, under the doctrine of the separation of powers, it cannot usurp the Supreme Court’s function.
Sir Winston Churchill championed the ultimate sovereignty of law in his History of the English-Speaking Peoples, where he wrote, in volume 2, page 169:
“The underlying idea of the sovereignty of law, long in existence in feudal custom, was raised into a doctrine for the national state. When in subsequent ages the state, swollen with its own authority, has attempted to ride roughshod over the rights or liberties of the subject, it is to this doctrine that appeal has again and again been made, and never, as yet, without success”.
Finally on this point, this legal fiction could exist only in domestic law. It has no effect on international law, international courts and United Nations institutions, not least the European Court of Human Rights. “International law? Poof!” say the uber Tories. I remind them that we are currently relying on the doctrine of self-defence in international law in bombing the Houthis.
Turning to the second issue, the denial of access to our courts:
“To none will we sell, to none will we deny, to none will we delay justice and right”.
That is just Magna Carta, chapter 40.
In 1769, James Somerset, born in Benin, was brought to England by a customs officer who had purchased him in a Virginian slave market. Two years later he escaped his master, who pursued him and imprisoned him on a ship bound for Jamaica. He was to be sold there to labour in a plantation. He was not denied access to the court of King’s Bench in habeas corpus proceedings. Lord Mansfield ordered his release. Slavery was odious, not recognised in the pure air of England. That was a judicial decision; it was another 60 years before Parliament abolished slavery in the British colonies.
The “judgement of Parliament” is a novel concept, introduced into the Bill, I suggest, to avoid judicial review. After all, how would you judicially review Parliament as a body? Whose clever, tricksy idea was that? Habeas corpus disappears as the major protector of the liberties of all within the jurisdiction of this country, whether foreign-born slave like Mr Somerset, or an asylum seeker. Trashing our legal obligations in international law, the Bill is odious and an affront to the 800 years of the common law of these islands, its values and traditions. The Bill must go no further.
Lord Marlesford (Con)
My Lords, the flow of migration, unless obstructed, is rather like the flow of water—it finds its own level. The Bill is, of course, intended as an obstruction to that level. To take my water analogy, the Thames Barrier is a necessary obstruction to prevent the flooding of the City of London. We read in many assessments that the number of people who will potentially come to this country is now over 100 million. The number who can come is obviously limited by the capacity of the country to absorb them, either temporarily or permanently. The natural level at which migration will find itself, if not impeded to a level that meets the capacity of a country, is when the standard of living that a country can provide has been diluted to a level so close to the country from which people want to come that the journey is no longer worth the risks, hazards and costs of undertaking it.
That being said, what is absolutely clear is that the Government have made a huge mistake in choosing Rwanda. Why Rwanda? We have heard from the right reverend Prelate what a good place it is, and I absolutely accept that. But Rwanda is a small, landlocked country in Africa which is a tenth of the size of the United Kingdom and has a population density that is double ours. The United Kingdom has 278 people per square kilometre and Rwanda has 569. Can the Minister reveal to us the process of thought by which the Government came to the conclusion that they would even suggest Rwanda as a suitable obstacle to try to get to the right number of people whom we can absorb.
Some of your Lordships may remember that, in 2015 and 2016, I put forward an alternative plan, again to address the obstacle of finding another country. I said that we needed a very big country that had a desert and was very underpopulated. I suggested that the migration problem was a global problem that must be dealt with by the United Nations. I suggested that—and bear in mind this was several years ago—perhaps Libya might meet that aim. I thought that an area of desert could be negotiated by the UN to which everyone would go and there it would be determined whether they went where they wanted to, or went back where they came from, or whatever. The population of Libya is four people per square kilometre. I do not say that Libya is suitable now, but I cannot understand why the Government are persisting with Rwanda, since it is obviously wholly impractical. I hope the Minister will address that point.
Baroness Chakrabarti (Lab)
My Lords, it is a privilege for this daughter of migrants to share your Lordships’ House, but today in particular it is a huge responsibility.
People were once imprisoned for being in debt and transported across oceans as punishment for the smallest crimes of hunger and desperation. I believe that future generations will come to look at this Government’s flagship policy with an incredulity similar to our feelings about those past inhumanities. But that is just my opinion.
It is also just my opinion that this Bill is repugnant to each tradition represented in your Lordships’ House. It is discriminatory, undermining the dignity of our fellow human beings, which is what asylum seekers and refugees are. It is illiberal and unconservative in its attack on a hard-won international rules-based order, the creation of which a previous generation of British statesmen was so proud. It is unchristian—indeed, contrary to the better instincts of all the great world faiths in its cruelty and dehumanisation. People are not sacks of carrots or widgets to be shunted around the globe for “processing”. To offshore one’s humanitarian responsibilities is as immoral as it is to offshore personal wealth as a means of evading public duty. But, as I say, that is just my view.
However, that the Republic of Rwanda is not currently or yet a safe place for those seeking asylum is not mere opinion; it is, as we have heard, fact. Furthermore, these are the facts found by the Supreme Court of the United Kingdom: not an international or “foreign” court, as the Prime Minister—another child of migrants—likes to caricature referees whenever he concedes a penalty or misses a goal, but the highest court in a land that has contributed so much to the development of the rule of law across the world. Your Lordships’ International Agreements Committee has ably reported on the factual conditions that must be met before the Rwanda treaty—the trigger for the commencement of this proposed Bill—can even begin to assuage the concerns of the Supreme Court.
Wisdom counsels changing our minds when the facts change, not doctoring the facts when our minds are made up. In attempting to change facts with a draftsman’s pen while simultaneously ousting the jurisdiction of our courts, the Bill is repugnant to the rule of law in general and the separation of powers in particular. In purporting to take ministerial powers to ignore interim rulings of the European Court of Human Rights, a permanent member of the Security Council will lose any moral authority to lecture other states on their international rule of law obligations in dangerous times.
It is hard to justify unelected legislators in a democracy. Noble Lords no doubt have their own arguments to offer their children and grandchildren, such as the expertise, experience and wisdom of a scrutinising and revising Chamber. For me, the most important argument, in an unwritten constitution that lacks entrenched protections even for the independent courts themselves, is that independent parliamentarians will stand with judges against executive abuse, because before democracy—before even our modem notion of rights and freedoms—the bedrock of any civilised society is the rule of law.
Lord McDonald of Salford (CB)
My Lords, the international system for dealing with refugees is breaking. That is hardly a surprise given that in 1951, when the refugee convention was approved, there were about 2 million refugees, whereas now the UN estimates there are 110 million forcibly displaced persons. We need a new system, but that would take years of painstaking multilateral negotiation.
His Majesty’s Government have reached instead for unilateral solutions. To be fair, so have other countries which normally welcome refugees, including Denmark and Sweden. But unilateral approaches to complex international problems generally fail. This policy has little chance of success.
When considering any new policy, civil servants always ask the key question: “Does it represent value for money for taxpayers?” On 13 April 2022, in the early days of the Rwanda scheme, the Permanent Secretary at the Home Office sought a ministerial instruction on value for money grounds. Two years and at least £260 million later, without a single refugee sent to Rwanda, evidently Sir Matthew was right. The Government persist in wanting to dump our problem on a fragile central African country, which is only now beginning to put in place systems to cope with traumatised refugees.
Other noble Lords have pointed out the constitutional, legal and moral problems of the Bill. I add my voice to those questioning the Bill’s most basic contention—that Rwanda is safe. Rwanda is safe, but only for people on the right side of the regime. It is not safe for others—not at all safe for its political opponents. It is not safe for the LGBT+ community.
Rwanda is a well-run country in its neighbourhood, but it is a dictatorship; no one can safely challenge President Kagame. No one doubts the outcome of the next presidential election on 15 July; after 24 years in office, he will be elected to a fourth term, this time for five years. Rwandan institutions depend on Paul Kagame; what happens when he goes is uncertain. A country whose institutions are only 30 years old and one man deep cannot be said to be safe for vulnerable refugees simply because it signs a treaty promising to treat those asylum seekers well. But such a country can provide reassurance by proven good performance over time. That is the position taken by the International Agreements Committee of your Lordships’ House.
Listening to today’s debate, we can all foresee that many amendments will be proposed in Committee. We can be sure that the Government will reject them, so Report will be fractious. Whatever we then send to the Commons will no doubt also be rejected. As the Prime Minister points out, we are merely an appointed House; he expects us to accept the Commons draft in toto.
After the Commons rejects Lords amendments, we will face a choice—either to cave, or to insist on, say, one essential change. That single change might relate to when the Bill’s provisions can be implemented. The International Agreements Committee set out 10 changes or tests related to structures, recruitment and training needed before the UK can safely proceed. We could insist that the Commons pays attention to that single, deep concern.
In the end, what is the point of a revising Chamber if it does not do all it can to improve fundamentally flawed legislation? I hope we do just that.
Lord Baker of Dorking (Con)
My Lords, I will support the Bill tonight, not because my Whips are suggesting I should do it but because I was the Home Secretary in 1990, the first to have to deal with a huge surge of illegal asylum seekers. In the previous 40 years from the refugee convention, there had been only a modest number of applications from people genuinely suffering persecution, and many were allowed in.
However, in 1990, the number surged to 45,000 in Britain and 90,000 in Germany. We soon moved on to 70,000 and then 90,000. What had happened was that the world’s human traffickers had realised that there was a wonderful loophole in the convention: it gave every citizen in any country of the world the right to go to another country if they were facing persecution—so redefine persecution. A lot of people who were not suffering persecution but suffering destitution, poverty and hunger in their own countries were sold the chance to go to another country. Who could blame them for paying out money if it would improve their lives? No one could possibly do so. The traffickers said, “When you go there, try to persuade them that persecution covers destitution—if the Government refuse to employ you or something; whatever it may be. If you don’t succeed, appeal, stay on. You will never be deported”.
That is the position that now exists. Where are the safe countries to which people can be deported? The only country we are deporting people to is, in the case of Albanian refugees, Albania. Albania will not take refugees from Syria, Iraq, Turkey, Egypt, or any of the sub-Saharan African countries.
What the then Foreign Secretary Douglas Hurd and I tried to do in 1990 was not to stop immigration—we all need immigration; every country needs it; last year, Britain approved 745,000 people to come to this country. We welcomed them in a friendly way, which was much better than what most European countries do. Immigration is a fact of life—controlled state immigration.
Regarding illegal immigration, from 1990, human traffickers could say, “Once you get in, you will be there for good”. My noble friend Lord Clarke said that we must search for safe countries, but can anybody mention a safe country that would take refugees from Afghanistan, Iraq, Syria, Egypt, Tunisia, Libya or any of the sub-Saharan African countries? Can anyone name a safe country? Is there a cry of even one country? Your Lordships ought to know; you are highly intelligent and informed people. Where are these safe countries? There are none left; those human traffickers know that, once they can get a refugee into any country, they will stay there.
This presents huge political problems. I do not know whether any of your Lordships heard the speech by the President of Germany at the weekend about the AfD. The AfD is now the official opposition in west Germany. It is a right-wing, vicious party which supports violence and huge repatriation. The President said that it is likely to win three states in west Germany in elections this year. That is a problem for Germany because they have had 400,000 applications for asylum this year. In the case of Holland, its very popular and successful Prime Minister of 10 years was thrust out because Holland was going to abandon its policy of open borders. It is now following closed borders.
Many European countries are already transgressing international law. Hungary does not care a fig for it. It has created fences all around. If anybody gets over them, it provides the refugees with coaches to take them to the borders of Slovenia and Austria. In France, Macron has just appointed a right-wing Prime Minister to try to hold off the growth of the right-wing party in France, which is now ahead in the opinion polls.
This is happening right across Europe. We have a problem. As I have said, once a refugee gets into any country now, they are likely to stay there. I believe the Prime Minister’s policy of trying to stop them entering the march to migration is the right one. It is an immensely difficult policy to achieve. It will inevitably involve applications, from the individual countries themselves, by individual migrants. Some will be approved and some will not. We have that pattern now; 745,000 came in on that basis.
America is close to doing that, but the whole policy will be turned upside down by Trump. He has decided that he can win the next election this year by focusing on migration. The governors in the southern states have now loaded busload after busload of immigrants and sent them off to Chicago, New York and Los Angeles. The most liberal part of America is Brooklyn. Brooklyn has been invaded by immigrants, and even it is now saying, “Go home, go home”. I am quite sure that, if Trump does win, which I think is likely, he will not give a fig for international law or the views of other countries. He has a slight problem with inflatable boats, which are now taking refugees across from Mexico. He will deal with inflatable boats in rather differently than we are.
One has to realise that there has to be international agreement. We cannot do this policy by ourselves. I hope that our leaders will co-operate with Europe to find a way to tame mass migration. Human nature being what it is, if it becomes a conflict between humanitarian zeal and national politics, national politics will win over; and that has very ugly prospects.
Baroness Bennett of Manor Castle (GP)
My Lords, I begin by urging noble Lords interested in the circumstances in Rwanda to pay close attention to the speech of the noble Lord, Lord McDonald of Salford. Members of the Rwandan Green Party have been at the forefront of opposition to President Kagame. They have paid dearly for it, including with their lives. I want to acknowledge that today.
My noble friend Lady Jones of Moulsecoomb will later concentrate on the contents of this Bill: its hideous human impacts and the indefensible politics behind its existence. I will focus chiefly on the amendment from the noble Lord, Lord German, which he so powerfully and effectively introduced to us. I will set out why the Green Party believes we should vote down this Bill today.
In that, I disagree with the noble Lord, Lord Ponsonby, who, making arguments with which we are all too familiar, suggested that “We’re the unelected House; we cannot overrule the elected House”. Can we really claim to have a functioning government majority in the House of Commons, a fast-shrinking majority, put in place with the backing—four years ago and three Prime Ministers back—of little more than a third of registered voters, the majority of voters choosing opposition parties?
It is not working, our constitution accreted over centuries of historical accident. As the noble Baroness, Lady Chakrabarti, set out powerfully, the Government are seeking to overrule on a matter of fact a judgment of the Supreme Court. I ask those who have been in this House for decades to mull on that reality and consider how shocking, how unbelievable, how banana republic you would a decade or two ago have considered even a suggestion that that might happen.
So what do we do? We often hear praise for the independence of your Lordships’ House and the relative weakness of the party Whip in those old-fashioned parties that do still whip. How about we apply independent judgment, independent thought, to this Bill, as your Lordships’ House did last week in scrutinising the Rwanda treaty—scrutiny that the Government have said they are going to dismiss without any consideration?
If the House cannot stop this Bill that the UNHCR tell us is in breach of the basic principles of international law, what is this House for? What defence is there for its existence and for its very curious composition? Sure, we can scrutinise, tidy up the Government’s mistakes in legislation, straighten out some of the worst elements and loosen things a little, and that is a job worth doing, but what use is that if we are within a deeply broken system, to which the noble Lord, Lord Ponsonby, referred. I think the noble Lord meant the asylum system, but it fits perfectly too as a description of our constitutional system, which is unable, it would seem, to defend the basics of the rule of law.
There is one point on which I somewhat disagree with the noble Lord, Lord German. He said that the West is often accused of double standards. I say that the West is often guilty of double standards—something that has all too often been hidden in the past behind gunboat diplomacy and economic might. The balance of the world is changing and we are no longer in a position to suggest that other nations should follow the rules while we do not. We desperately need the norms that have been established—very often by British campaigners, civil society and lawyers over decades—to be upheld, and that means that we need to uphold them ourselves. As the noble Lord, Lord German, said, to pass this Bill would be to undermine our global standing and the principle of universality, however often in the past the West has ignored it in its own interests.
The noble Earl, Lord Kinnoull, for whom I have the highest respect, said that the Commons has the right to pass bad law. The question I am going to leave noble Lords with is this. How far would your Lordships go in accepting that precept? How bad does the law have to be? I have asked this question before, when we passed the policing Bill which explicitly targeted Gypsy, Roma and Traveller people. I asked it during the passage of the Nationality and Borders Bill, when we declared millions of Britons to be second-class citizens, capable of having their citizenship taken away by the stroke of the Home Secretary’s pen. The noble Lord, Lord Clarke, asked where the limits are. That is the question I put to your Lordships’ House today.
Lord Bach (Lab)
My Lords, along with many other noble Lords, I am, frankly, distressed and shocked to see this proposed legislation in front of the British Parliament. To me, it is hardly credible that a British Government should ask Parliament to pass a Bill that insists on denying established facts, almost certainly breaks international agreements, lowers our reputation in the world sharply, takes away judicial powers and hands them to the Executive, and treats other human beings—including genuine refugees—in an outrageous, cavalier and reckless manner. And all this in some desperate and false attempt to fool the electorate that the Government are serious about immigration.
Yet the Bill is in front of us, and we have been warned—if not threatened by the Prime Minister, at perhaps the most ludicrous press conference ever heard at No. 10—to pass it speedily and without amendment, or else. This was surely the wrong approach and only encourages those of us who believe the Bill to be unconstitutional and not worthy of this country to be more determined.
I want to concentrate briefly on Clause 1(2)(b). I agree exactly with what the noble Lord, Lord Clarke of Nottingham, told the House a few minutes ago. That clause is a bold statement of fact, not of opinion—although there is an attempt at Clause 1(5) to give a ridiculously inadequate definition of a “safe country”. As a statement of fact, it is false. All the best regarded opinion is that Rwanda is, alas, not a safe country. That is what the Supreme Court unanimously found, and anyone who saw yesterday’s Observer newspaper, for example, will know that there is striking evidence that any opposition to the Government there is just not tolerated.
Again by way of example, how does the Minister begin to explain how four Rwandan citizens, all supporting the opposition party, have in the last four months all been given refugee status in this country—one of them, ironically, at the time the Supreme Court was considering the case? Does that not perfectly describe how absurd it is, in the face of so much evidence, to say that our courts and our judges have to assume that Rwanda is a safe country?
Like many others in this House, I was privileged to be at the memorial service last week for our late and much missed colleague Lord Judge. The reading was from Deuteronomy and concerned the obligations on those asked to do justice. One phrase struck me as being really relevant to this Bill. It is the direction given in the Bible—and this is the modern translation—that:
“You must not distort justice”.
If this Bill becomes law, with a plainly false proposition at its heart, how will it be possible not to distort justice? I agree with those who say that this Bill is not worthy of our country, neither its traditions nor its present, and certainly not its future.
Lord Butler of Brockwell (CB)
My Lords, I do not want to add to what has been said about the content of the Bill but want to make one or two observations on the role of your Lordships’ House in dealing with it.
As has been said, this is not a manifesto Bill, so it is not covered by the Salisbury/Addison convention and there is no constitutional bar to the House’s refusing to give it a Second Reading. On the other hand, when the elected House, having heard the arguments, has passed the Bill, even under the duress of the majority, and without amendment, I agree respectfully with the convenor that that gives it some of the aspects of a Bill covered by the Salisbury/Addison convention. I think the House would be wrong to refuse to give the Bill a Second Reading and wrong, therefore, to vote for the amendment from the noble Lord, Lord German.
The role left for this House to exercise is as a revising Chamber—to amend the Bill and send it back for further consideration. However, we need to be realistic about what, in these circumstances, is meant by a revising Chamber. I do not believe that amendments are possible which would make the Bill unobjectionable and yet meet the Government’s objectives. Amendments passed by this House are likely to be regarded by the Government as wrecking amendments, and I have no doubt that, as the noble Lord, Lord McDonald, said, the Government will use their majority to reverse them in the House of Commons.
Will we be wasting our time in debating and amending this Bill? In one sense, we will. Debates will take place and amendments will be passed, and in the end we will surrender after ping-pong and the Bill will go through. However, in another sense I believe that we will not be wasting our time. In our democracy, political parties and Members in this House have a right and a duty to assert their positions, as the noble Baroness, Lady Chakrabarti, said. If we did not do so, we would be adding to the damage that will be done to our democracy by the Bill itself.
In my view, the No. 10 spokesman was profoundly wrong in saying that this unelected House has no right to pass amendments removing what we regard as objectionable and dangerous features of the Bill. This House has a right and a duty to do so, even though we must recognise that such amendments will in practice be no more than a kamikaze operation.
The Lord Bishop of London
My Lords, I share many concerns about the Bill that have been expressed by many other noble Lords, but I will focus on human rights. What underpins my contribution to the House is a fundamental belief that all people are made in the image of God. It is a belief that is the foundation not just of the Christian faith but of many other faiths and religions. People have an inherent immeasurable value and deserve dignity and respect. In the Bill, unfortunately, the value of people is consistently maligned. For example, the Bill decides who is and is not entitled to human rights. Has history not taught us the risk of that?
It is an odd situation that we find ourselves in when it feels necessary to state in your Lordships’ House that the Government should obey the law, yet the Minister has stated on the face of the Bill that he is unable to say that the measures within it are compatible with the European Convention on Human Rights. Clause 3 disapplies sections of our Human Rights Act and Clause 1(6) lists great swathes of international law that will be contravened to pass the Bill. As many noble Lords have said, it is illogical that the Government are disregarding international law while relying on Rwanda’s compliance with it to assure us it is safe. That is not a mark of global leadership.
Clause 5(2) states that compliance with interim measures made by the European Court of Human Rights will be decided by a Minister of the Crown. Disregarding these orders will cause legal uncertainty, with a profound impact on how we expect others to abide by international law. We have a respected place on the world stage, with very few injunctions in comparison to other European countries, because human rights legislation is so well embedded in our law. As a number of noble Lords have said, the Bill marks a change. We cannot afford to forfeit our place in the international community in the face of the significant global challenges that must urgently be navigated. Global conflict remains a serious issue, and we must not lose our focus or our leadership on it.
Passing the Bill will mean that other countries will be tentative in reaching forward to us on other international agreements. In addition, it is troubling that the vulnerable are not being protected in the Bill, with no exceptions made for victims of trafficking or children who either are in families or are suspected to be adults. The right reverend Prelates the Bishop of Chelmsford and the Bishop of Bristol are not able to be in their places today but hope to explore amendments to further protect these vulnerable groups, to which I hope the Government will give due consideration.
The Bill disapplies parts of the Human Rights Act with respect to asylum seekers, and the Government are doing the same in respect of certain prisoners in other legislation before this House. This is a slippery slope. Making a minority group unprotected from the actions of the Government undermines everyone’s collective access to justice.
If our courts find that this legislation is indeed incompatible with rights under the ECHR and issue a declaration pursuant to Section 4 of the Human Rights Act, will the Minister confirm that the Government will make a Statement to Parliament and bring forward regulations to remedy the incompatibility?
I underline that my overriding concern is that in this legislation we are deciding to whom human rights apply and to whom they do not. Again I say: has history not taught us the risk of that? I hope the Government will consider that question before proceeding any further. As the House has heard, we on these Benches will continue to engage with the Bill to develop better legislation that will recognise the value of each human being.
The House may not be surprised to hear that I also support the most reverend Primate in his call for a long-term strategy for immigration that is cross-government and worked out with our international partners.
Lord Murray of Blidworth (Con)
My Lords, in the absence of an immediate returns agreement with France, for which there seems little appetite, it is only by delivering the Rwanda scheme that the Government can achieve the deterrent effect necessary to prevent migrants from attempting to enter the United Kingdom by dangerous and illegal means.
In the brief time available to me, I shall focus on two matters that have been the subject of much misperception in your Lordships’ House. The first is the effect of the Section 19(1)(b) statement on the face of the Bill. As a person who has previously signed such a statement, I have carefully considered its significance. Contrary to a common misunderstanding among opponents of the Bill in your Lordships’ House and the other place, and as we have just heard from the right reverend Prelate the Bishop of London, the statement does not mean that the Minister is certifying that the measures in the Bill are incompatible with the human rights convention. Following a practice introduced under the last Labour Administration, a Minister will not make a Section 19(1)(a) statement of compatibility unless they are satisfied that, if there was a legal challenge to the new law or a decision taken under it, there is a greater than 50% probability that the court will find the measure to be compliant with the convention commitments of the United Kingdom. In all other circumstances, the Minister will issue a Section 19(l)(b) statement. That is what has happened here.
Therefore, the placing of a declaration of this kind on the front of the Bill cannot, and must not, be characterised as a statement that the Government believe that the measures in the Bill are incompatible with the UK’s convention commitments. The point is that in making such a declaration the Government do not concede any breach of the convention, and indeed there is every prospect that the Government will prevail in any litigation, as occurred in the 2013 Animal Defenders case, which upheld the compatibility of a provision in the Communications Act 2003 that had, when before Parliament, been accompanied by a Section 19(1)(b) statement.
In any case, it is for Parliament to decide whether it thinks the Bill is compatible with convention rights, and it should not be misled by the way in which Section 19(1)(b) statements are phrased, because that would be to misunderstand the substance. Given the treaty and the commitments underpinning the Bill, it is evident that the Bill does not expose anyone to a real risk of removal to conditions under which they would be tortured or exposed to any other convention violation.
The second misperception was exemplified in the speech of the noble Lord, Lord German, today, and the speeches of the noble Lord, Lord Kerr, today and in last week’s debate on the ratification of the Rwanda treaty. It is that the outsourcing of asylum claims made in the UK to a third country is unlawful or, in the words of the noble Lord, Lord Kerr, “dishonours our convention commitments”. This is not so. In the recent Rwanda litigation, this was rejected by the Divisional Court, which held that third-country processing was not unlawful or contrary to the refugee convention. The claimants unsuccessfully sought to appeal that finding. The Court of Appeal, unanimously on this point, agreed with the Divisional Court. The Supreme Court did not even grant permission for any further appeal on that and therefore the law is clear. Third-country processing of asylum claims is lawful.
Having clarified these two matters, I make one final point. This Bill will save lives and protect our borders. It warrants the support of this House.
Lord Carlile of Berriew (CB)
My Lords, although it is a pleasure to follow the noble Lord, Lord Murray, I would urge him to stop his tango on the head of a pin.
It is a remarkable but welcome thing that an issue, the outcome of which will apparently affect fewer than 200 people, should be debated twice within one week in your Lordships’ House. I agree with the comments made by noble friends and other noble Lords on the rule of law, including the noble Lords, Lord Thomas of Gresford, Lord Clarke of Nottingham, my noble friend Lord Anderson and my noble and learned friend Lord Etherton.
This Bill and the treaty said to underpin it have attracted both headline and detailed criticism. The headline part has included the unusual press conference at which the Prime Minister, who in the past has been generally accepting of the role of your Lordships’ House, took time out of his busy schedule to wag his finger at us. I suggest that those who look after the Prime Minister, when he is on his much-publicised exercise bike tomorrow morning, should place before him the magnificent speech of the noble Lord, Lord Hennessy. It was three and a half minutes of sheer eloquent wisdom from this House. The Prime Minister was just wrong, and this House will not be influenced by finger-wagging.
That episode reminded me of a brief remark by one of the heroes of my generation, Desmond Tutu. He said of such debates:
“Don’t raise your voice, improve your argument”.
I have been waiting for the Government to improve their arguments against those presented by most Peers who spoke in last week’s debate. So far, at least in this debate, the improvement has not occurred.
I agree with those noble Lords who have said that the fundamental question is if Rwanda is a safe country. At best, the Government’s position on Rwanda’s safety is ambiguous. For example, as one noble friend said privately to me earlier, Clauses 5(2) and (4) of this Bill are plainly in breach of the Constitutional Reform and Governance Act 2005, but the Government seem to have overlooked that completely. There is plenty of evidence that Rwanda is not a safe country. The Government have said, in or out of court in a number of cases, that individuals applying for asylum in this country could stay here because Rwanda is not a safe country.
Last Saturday, an article in the Guardian referred to an investigation, which has not been refuted by the Government, by the Observer and the colourfully named campaign group Led by Donkeys. They found that, in the last four months, six Rwandans have been given asylum on the grounds that they would not be safe if they were sent back to Rwanda. Those decisions were on various grounds. In one case, the person was connected to an opposition party. In another case, the Home Office simply said:
“We accept that you have a well-founded fear of persecution and therefore cannot return to your country Rwanda”.
How can a country, in which opposition to the President makes it unsafe for a refugee to return—simply by expressing his or her political views—be safe? We have the spectacle in the teeth of the evidence of His Majesty’s Government telling us that Rwanda is safe. They are asking us to legislate a lie. I hope that we will not legislate that lie.
An admired teacher of mine had the habit of quoting Plato at bemused 15 year-olds. I stuck it out with him to the end of my schooling, and I remember him later reminding us of Plato’s advice. “To present arguments at a time when one is in doubt and seeking … is a thing both frightening and slippery”. This debate is about a proposal both frightening and slippery and, indeed, duplicitous.
If this Bill is to be passed, it must only be brought into force once the misgivings contained within paragraph 45 of the International Agreements Committee’s report are resolved and certified by this Parliament as properly resolved. Only then will I support this Bill.
Lord Cashman (Lab)
My Lords, it is a privilege to follow the noble Lord, Lord Carlile, whom I worked with on the Illegal Migration Act. It seems as though we will be working together on this. I do not, as some have suggested on these Benches, come to this issue with party-political motives.
I approach this from a personal perspective. How would I want to be treated? How would I want my family to be treated? Therefore, I must stand in the shoes of others and imagine, as Shakespeare asked us to imagine in a brilliant speech in “Sir Thomas More”. The strangers have made their way from Calais to Dover. The threat of them is whipped up and the strangers are politicised. To paraphrase, to a voice among the crowd that says, “Remove them!”, Sir Thomas More replies: “You bid that they be removed, the stranger with their children upon their back, their families at their side, their belongings at their feet. You bid that they be removed. Imagine you are the stranger, with your children upon your back, your family at your side, your belongings at your feet. Bid that they be removed and show your mountanish inhumanity”. Four hundred years later, I beg the same question.
This Bill is outsourcing legal and moral obligations, and I consider it not only unacceptable but repugnant. It will have long-term profound consequences for the United Kingdom and in Rwanda, as outlined by the right reverend Prelate the Bishop of Durham. The Bill is unacceptable, as we have heard, for many reasons—on legal, constitutional and moral grounds. In essence, I believe it is entirely unacceptable in any country that considers itself civilised or allied to the rule of law.
The Government have continually stressed that relocation to Rwanda, coupled with detention and the removal of rights within the Illegal Migration Act, are the deterrents that will end small boats crossing the channel and so-called illegal migration. It is one thing for the Government to try to fool their critics, but when they fool themselves, we are all the losers and democracy is the greater loser. Not in my name and not with my silence will this Bill pass.
It puts at risk the most vulnerable minorities and individuals. I agree with the noble and learned Lord, Lord Etherton, that LGBT+ people will not be safe in Rwanda. Like him, I was given the same assurances during the passage of the Illegal Migration Act. I seek the assurances of HJ (Iran) again.
In conclusion, this is the heart of my concern: this drawback mentality offered by the Government will achieve nothing except diversion, division and greater degrees of inhumane treatment against those who are among the most vulnerable and in need. I hang my head in shame when I see what my country has fallen to, when all we can offer is a legislative lie.
Baroness Northover (LD)
My Lords, I am honoured, as ever, to follow the noble Lord, Lord Cashman, who has made a very passionate case. Many speakers today have focused on the legality and morality, or otherwise, of the Rwanda scheme, and the astonishing claim that this Parliament has the overriding ability to decide whether Rwanda is safe. I will focus on another astonishing aspect: the simple unsuitability of this scheme.
Last July, I was in Rwanda for a major conference on women’s rights. While I was there, I visited, with the UNFPA, the Mahama refugee camp in eastern Rwanda. Overseen by the UNHCR, this houses 60,000 refugees, largely from Burundi, but also from other countries in the region which have been suffering conflict. There are strong cultural similarities between the refugees and their hosts. Full provision is made for housing, schools, and training. There are villages led by local leaders, markets for stallholders, and a bus service to enable travel to work. We visited impressive health clinics, which covered a range of care, including minor operations, vaccinations, malnutrition care and mental health services. What is more, the local population can access these facilities, so they can see a benefit from having refugees among them.
Let us contrast this with what the UK plans to do for those seeking assistance at our borders. None of these elements is in place. It is no surprise that the Government do not want parliamentarians to visit the site, as we found. It is beyond amateur. It is in Kigali, in an unused housing development, surrounded by other housing developments for the local population. Its capacity is extremely limited, for merely a few hundred, and these will supposedly be men from diverse countries, backgrounds, languages, religions and experience—people who will have been uprooted from their countries, communities and families. How is that supposed to work? Of course, the site is not big enough to provide specialised healthcare, training, or language or cultural support—any of the facilities that such asylum seekers potentially need. It is right in the middle of the local population, with the strong possibility of mutual fear—a potential recipe for conflict and exploitation.
My noble friend Lady Hamwee refrained from speaking today because of the number of speakers, but she has mentioned to me points made by various organisations. Removing asylum seekers to a country where they do not want to be, with little prospect of work, not understanding the language, with inadequate support, increases the likelihood that they will seek to leave, or be open to offers to help them do so. Israel had an agreement with Rwanda, but no one knows what happened to that cohort. They are not there now; it is very likely that they were smuggled onwards or trafficked and exploited. The Minister says that he seeks to reduce trafficking, yet this policy opens up a new market for traffickers. The Bingham Centre for the Rule of Law has advised that the Bill will put the UK in breach of the convention on trafficking in human beings.
As the right reverend Prelate the Bishop of Durham and the most reverend Primate the Archbishop of Canterbury have rightly said, Rwanda has made great strides since the terrible years of its genocide. Nevertheless, the UK Supreme Court has deemed it still an unsafe country—and we have heard a number of reasons why that is the case, not least from the noble Lord, Lord McDonald. We have recently granted asylum to Rwandan refugees, as my noble friend Lady Brinton pointed out. Of course, it appears to be part of the Government’s narrative for the right-wing press that Rwanda is a desperate place in which to end up—acting as an apparent disincentive to those who may seek asylum in the UK. It is ironic that they then deem the country safe.
Conflict and climate change will doubtless increase migration. Working on global strategies to tackle this, as the most reverend Primate Archbishop of Canterbury pointed out, is clearly vital. Right now in central America, they are facing a massive traffic in migration. Costa Rica, with a population of 5 million, is housing a further 1 million from Nicaragua. One of the first things must be to invest in conflict prevention and development. The assistance that has been channelled to Rwanda since its terrible conflict has clearly improved the lives of many of its citizens, so there is less migration from Rwanda itself, despite the clear limits to freedom there. Yet we cut our aid budget—how short-sighted.
Others have argued with overwhelming force that the Bill offends against both morality and legality. From what I have seen of the UK’s plan on the ground in Rwanda, compared with more effective ways of supporting refugees in that very country, it seems to me that we are pouring huge amounts of money into what is almost an amateur scheme. That hardly reflects well on the United Kingdom.
Lord Horam (Con)
My Lords, many moons ago I was a staff writer on the Financial Times and occasionally involved in writing leaders. Those of us who wrote leaders for national newspapers were well aware that they were not exactly the first point of interest. I do not know how noble Lords read their newspapers, but I start with the back pages, which were particularly pleasant today, with the reports of the win in India in the first test match. Then I went to the news on the front pages, then to the features and then finally the leaders. However, as a leader writer, I was aware that the opinion expressed in the leaders is the collective view of at least the senior people on the newspaper in question. Therefore, I was very interested to read the views of the Times on 15 January, where it said, under the headline, “Return of Rwanda”:
“The legislation would prevent a general claim that Rwanda is an unsafe destination but not rule out a specific case of an individual being at risk for some reason. That is in principle a sensible balance, respecting the will of parliament and the rights of the individual”.
That is precisely the view taken by our colleagues in the other place, without any further amendment.
Of course, we are here because the Supreme Court concluded that the Government’s policy was unlawful. I therefore took the trouble to read the Supreme Court evidence—57 pages of it. I understand from its procedures that it has to take a view on the hard evidence; that point has been made. The hard evidence that it took was from the UNHCR before September 2022.
However, as the noble and learned Lord, Lord Stewart, pointed out in his opening remarks, the problem with this approach is that it does not look at the evidence today or as it may be in the future. It did not go to Rwanda and took no evidence of that kind. The fact is, as has been pointed out many times, that Rwanda is a rapidly developing situation. It is helping the UK with its illegal immigration and, in return, getting a significant chunk of development aid. It hopes this will be a model for other European countries—and other European countries are following this closely—which will work for the future. Therefore, Rwanda has every incentive to make this policy work.
This raises the question, incidentally, of whether this sort of decision—as to whether Rwanda can be trusted—is one that should be made by Governments or by courts. The Supreme Court raised this question, but it did not, in the end, give a view.
We are where we are. I believe the Government have made a big effort to meet the Supreme Court’s points. In particular, they have put a lot of work into capacity building, which is what the Australians did when they faced a similar problem over outsourcing to Nauru, near the Solomon Islands. The Australians provided training, support and expertise, and had a permanent presence on the ground, and the UNHCR was kept in touch. This trilateral approach has worked and now has all-party support. That is the opportunity we may face here. I think it should be put to the test.
Lord Inglewood (Non-Afl)
My Lords, I think we can all agree that the Bill is contentious. I think we can also agree about what it is actually about: controlling permitted migration and ending illegal entry. That is a good thing, but I suspect that is where the agreement ends.
This evening, we are discussing something that is part of a much greater problem facing the western world. History, it seems to me, tells us that there is only one way to respond to existential threats to western Europe and tsunamis of migration, and that is by coming together and standing shoulder to shoulder. For example, when Jan Sobieski led a European army to defeat the Turks at the Battle of Vienna, it was a composite army. When Wellington was victorious at Waterloo, the majority of the troops he was commanding were not British, and the day was saved by the Prussians, under Blücher. In the Second World War, when we played a crucial part, eventual victory is in fact owed to Russia and the United States. We are approaching this as though we can try to do it by ourselves, and I believe that that must be doomed to fail. We are all in it together.
We were told earlier in the debate that collective action has failed in the past, but we have to remember what financial advisers tell us: that the past is no guide to the future. We have simply got to make it work in some way or other, even if we end up with a collection of disjointed unilateral actions that have only some degree of coherence across them.
As long as there are boats and migrants on the other side of the English Channel, and as long as the view from there is that there is a better life in this country, there will be those trying to break into this country, thinking it is a Shangri-La—it is certainly an improvement on life in the camps at Calais. That is the reality. Sometimes, we seem to be using the same political advisers as King Canute did on that beach at Hunstanton, over 1,000 years ago. On that occasion, the king appreciated that they were talking nonsense.
I am not a good lawyer, and in the presence of so many distinguished lawyers I shall keep my opinions private. I simply say that the Bill as it stands is an attack on the rule of law. If Parliament, led by the Executive, excludes the proper and constitutional role of the judiciary and the system of checks and balances in the system, quis custodiet ipsos custodes? We are being asked to go into a world of Lewis Carroll’s Wonderland, as was explained earlier, where Humpty Dumpty expounds the doctrine that a word means
“just what I choose it to mean—neither more nor less”.
Much of this is fuelled by what is a fashionable, at least in some circles, antipathy to the European Convention on Human Rights. It may commend the convention to some at least in this Chamber that, let us not forget, it was devised by British Conservative lawyers. We should also recall that the reason it came into being—I think this was mentioned earlier in the debate—was to deal with exactly the Humpty Dumpty school of legal interpretation which, once adopted, spread widely in the 20th century to become the basis of horrifying totalitarianism and all that that led to. I believe we should not and must not allow this approach to the law to enter our system.
Let us have some leadership from our leaders in the great British tradition of freedom, democracy and the rule of law, and not put our long-established traditions up for sale for the supposed benefit of a mess of short-term political pottage.
Lord Griffiths of Burry Port (Lab)
My Lords, this time last week, I was in Strasbourg for meetings of the Parliamentary Assembly of the Council of Europe—a body dedicated to the rule of law, democracy and human rights. On its first day, as is usual, there were two meetings of its various committees. I sit on its migration committee. We were pretty much preoccupied with the plight of abducted Ukrainian children being forcibly taken into Russia to be Russified and eventually turned back to fight against their own people—a horrendous situation indeed.
However, in the informal times between our business items, I was besieged by people from Parliaments across Europe who wanted to ask me about what was happening here last Monday. I explained the nature of that debate, and wished I had been here myself. There was a short gap in the proceedings that allowed me, with such technical ability as I have, to get the debate on my telephone screen. I was able to follow a small part of the debate that took place here last week, pretty much on the subject we are debating right now. I got only a snippet of the debate, but enough to make me think a great deal.
I saw an exchange, some might call it a spat, between the noble Lord, Lord Wolfson, who is in his place—an honourable man of Tredegar, which is what confers the honourableness on him—and my noble friend, if I may be allowed to award him that accolade for the purpose of this debate, the noble Lord, Lord Purvis of Tweed. The discussion was about the rule of law and the role of the UNHCR in the treatment of refugees and asylum seekers. Sitting next to me was Andreas Wissner, the UNHCR official in Strasbourg.
The point at issue was the decision of the Supreme Court that the UNHCR is entrusted
“with the supervision of the interpretation and application of the Refugee Convention”.
I am getting my bearings from the noble Lord, Lord Wolfson, because it is he who was quoting. Later, it was said that the UNHCR’s guidance
“should be accorded considerable weight”.
The two words that the noble Lord singled out in his speech were “supervision”—that is, of the interpretation allowed to each member state to apply the laws and conventions according to the light of their own experience—and “guidance”. Both of these, he argued, offered a clear indication that the UNHCR was not entrusted with final or binding decisions but merely with the giving of critical advice and counsel.
The noble Lord, Lord Purvis, was clear that the noble Lords, Lord Wolfson and Lord Murray—who is not in his place; I could have been complimentary about him but I am glad not to be given the opportunity—were both wrong in their suggestion that the UNHCR is not charged with the interpretation of the refugee convention. It is so charged, said the noble Lord, Lord Purvis, and the Supreme Court agreed with him. When lawyers, even distinguished lawyers, disagree—I am a minnow here, swimming for his life in a deep bowl—it is sometimes a good thing to turn to the way the point at issue has been applied in previous cases.
Indeed, Section 2 of the Human Rights Act requires courts to take into account the case law of the European Court of Human Rights in making their decisions. This is good advice, not only for courts but for distinguished lawyers speaking in your Lordships’ House. The UNHCR has given detailed attention to all three major pieces of legislation that have been before this House in the last short period. Its reports make most interesting reading and have been very carefully drawn up. We have to bear in mind the role of the UNHCR and, in looking to resolve the dispute that was on air last week, case law—the way the laws have been applied—needs to play its proper part. The advice was clear: the way we are going will involve a serious breach of international law and seriously damage the UK’s standing in the world.
As I did some thinking on these matters in Strasbourg last week, the battery on my phone ran out. The screen darkened, and so did my spirits lower, as I thought, “Next week I’ll be here trying to make some kind of contribution to what I believe is a fundamental aspect of what it means to belong to this country”. Nobody could have said it better than the noble Lord, Lord Hennessy, in his welcome return to this House earlier—in three minutes, and, gosh, look at me. Well, to return to my meeting in Strasbourg—guess what? We were discussing migration and the rule of law.
Baroness Fairhead (CB)
My Lords, we do need to stop the abhorrent practices of the criminal gangs and save people dying at sea, and we do need to control our borders. I therefore commend the actions that the Government have implemented, as described by the Minister in his opening remarks. However, as other noble Lords have said, the Bill is not part of the answer.
I have had the honour of representing this country in international trade negotiations. In its current form, the Bill has the potential to damage the reputation of the UK as a defender of democratic principles, and the rule of law and all its facets, including the principle of the separation of powers. In so doing, if passed, it will damage the future ability of the UK to lead on breaches of international law, and more generally on the world stage.
The UK has a long and proud track record of respecting and promoting the rule of law. Indeed, the most recent European Court of Human Rights report demonstrates our impressive compliance: the court takes into account the fact that we have integrated the human rights convention into our public bodies and that it is overseen by our judiciary. But this hard-earned reputation is now at risk.
Although sending immigrants to safe countries is well established under international law, the Bill is being proposed for a very different situation, positioning itself and the treaty debated last week as an answer to a unanimous ruling by our Supreme Court that Rwanda was not safe as a matter of fact.
I will not repeat its detailed clauses, but many legal commentators, including those in this House, have questioned the Bill’s legality, arguing that, even if its passing enables Rwanda to be deemed a safe country under UK domestic law, it is not relevant in determining whether it breaches our obligations under international law.
The Bar Council of England and Wales commented:
“There is an obvious difference between a country that is in fact safe, and one that is not safe but is deemed to be safe. The United Kingdom’s obligation under international law is to ensure that asylum seekers are only ever sent to countries that are actually safe”.
The Bill does not respect the rule of law, including the separation of powers, as clearly articulated by the noble Earl, Lord Kinnoull, and it breaches our obligations under international law. The great irony, as the right reverend Prelate the Bishop of London stated, is that the Bill is proposing that the UK breaches its international obligations but insists that Rwanda meet its own.
Ultimately, government is about two things: the making of laws and the allocation of money. If it is not bound by the laws it dislikes, the authority of government is eroded. That is why this House has an important role in helping the Government find solutions—but solutions that do not breach the fundamental principle on which their own authority is based. I will therefore not be voting in favour of the amendment, in the hope that our role as a revising Chamber can take place.
Like so very many in the House, I had the privilege of knowing and learning from the late and much lamented noble and learned Lord, Lord Judge, called out already by the noble Lord, Lord Bach. Lord Judge highlighted the critical importance of the rule of law during his lifetime. I will end by using words from his published essays, as I urge the Government to consider amending the Bill to comply with them. He said:
“The rule of law is indeed our safest shield … it has a resonance for each and every one of us, from whichever country we come. Never take the rule of law for granted. Never, ever. The best of constitutions can be subverted”.
Viscount Hailsham (Con)
My Lords, in the short time available, I shall concentrate on my conclusions. The first point that I wish to make relates to the policy that the Bill is intended to facilitate: namely, deterring small boats. I do not believe that the Bill, if enacted, will serve as an effective deterrent. I believe that individuals who choose to make the perilous journey across the channel in overcrowded and vulnerable boats are unlikely to be deterred by the slight prospect of being relocated to Rwanda. Those of your Lordships who have principled reservations about the Bill should not support a Bill that cannot achieve its desired objective.
My second point, and my principal objection to the Bill, is the statutory reversal of the Supreme Court’s judgment that Rwanda is not a safe country. Whether Rwanda is or is not a safe country is a matter of fact, to be determined after careful assessment of the relevant evidence. This is what the Supreme Court did. In my view, it is contrary to long-standing principles to reverse, by a statutory pronouncement, a judicial finding of fact.
I turn to my broader objection. This country prides itself on being a country in which the rule of law prevails. We are a country which adheres to its international obligations. The Bill trashes our reputation for domestic and international probity. I cite two provisions. Clause 1(4)(b) states:
“It is recognised that … the validity of an Act”—
any Act, I note—
“is unaffected by international law”.
International law is very broadly defined: see Clause 1(6). That provision is right in strict law, but its sole purpose in the Bill is to provide comfort for the Braverman wing of the Conservative Party and it is a proposition that we should voice with very great caution.
Clause 5 enables a Minister, at his or her discretion, to determine whether or not to be compliant with judicial rulings of the European Court of Human Rights. Members of the international community reading the Bill would be entitled to conclude that the given word of the United Kingdom cannot be relied on.
On Clause 3—the disapplication of the Human Rights Act in respect of individuals who would otherwise benefit from its provisions—I call to mind the words of Pastor Niemöller, spoken in 1947:
“First they came for the socialists, and I did not speak out—
Because I was not a socialist.
Then they came for the trade unionists, and I did not speak out—
Because I was not a trade unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me”.
Of course, the circumstances are very different from those of the 1930s, but we should beware the precedent that we would create. It is best not to step on to a slippery slope; it can end in some very murky places.
I end with what I hope is a constructive suggestion: the Bill should not be implemented without a positive resolution of both Houses of Parliament. Such a resolution should not be considered until Parliament has received a report on the safety of Rwanda from, for example, a Joint Committee of both Houses appointed for the purpose; there may be other ways of meeting the objective. In the event of no report or an unfavourable report, the Bill would remain in the long grass, where it should be. Such an approach could be reinforced by sunset clauses and constant, continuing assessment. That way, Parliament would at least have an assessment of fact on which it could properly rely. Incidentally, it also accords with the judgment of this House in last week’s vote.
The Lord Bishop of St Edmundsbury and Ipswich
My Lords, as the 41st speaker, I will inevitably repeat or underline others’ points, but I will briefly make a couple of observations. I am struck that some noble Lords supporting the Bill nevertheless do so with a hint of equivocation, saying that it is not perfect or the final destination. In addition, I have not heard evidence that the proposal will work. The Minister commented in opening that progress had been made and the numbers of those coming across in boats had decreased. Why do we not put more effort into the courses that have enabled that reduction?
I do not think there is a single noble Lord who is not determined that the dangerous boat crossings of those seeking asylum in this country be stopped. Our valuing of and care for human life and the plight of those fleeing danger place a moral duty on us to work out a way to stop these perilous crossings and find a just and safe way for people to find refuge. We know from the Government’s figures that the great majority of those who have sought asylum in this country through this life-endangering method have had their applications upheld. We are not talking about people risking their lives without legitimate cause. We need to find, as a number of noble Lords have said, safe ways to achieve this goal with our European neighbours. This is a good moral purpose to which I believe we would all assent.
However, from every angle that I look at the Bill, it seems to have lost that moral compass. This continues to be a deeply immoral solution, treating victims as perpetrators and not providing a real, just and sustainable plan for the rapidly changing global refugee situation. I will touch on two related aspects of this.
First, His Majesty’s Government have signed a treaty with Rwanda which they believe addresses the concerns that led the Supreme Court to conclude that it was unsafe. The Government responded by arguing that the facts had changed and those changes are now expressed in the treaty with Rwanda. However, the International Agreements Committee asserts:
“Evidence that these arrangements have bedded down in practice is also needed”—
as a number of noble Lords have said—
“the Treaty is unlikely to change the position … in the short to medium term”.
Rather than testing the evidence through the courts, or possibly via the method referred to by the noble Viscount, Lord Hailsham, the Government have decided to introduce the Bill, which in reality dictates to the courts that they must treat Rwanda as a safe country. The use of Parliament as decision-maker in these circumstances is impractical and troubling. I see the Government’s approach as constitutionally inappropriate.
My second and more fundamental point is the constitutional danger of excluding the jurisdiction of the courts in future cases. Under these proposals, as we have heard, the courts would be required to ignore evidence that may emerge in future, thus removing their ability to protect. No Bill should place such limits on access to justice. This raises a serious constitutional issue and potentially, yet again, victimises the victims.
Lord Green of Deddington (CB)
My Lords, I will leave the important legal aspects of the Bill to the many outstanding lawyers who have spoken and will focus on much wider aspects of the current situation. This is a critical stage for the Government’s asylum policies and, by extension, their even more important immigration policies. Net migration last year was roughly 20 times the number of people who crossed the channel.
The Bill sets up a complex system to remove asylum seekers to Rwanda as a deterrent to future channel crossers, yet, at the same time, the Government are granting asylum to applicants from six Middle Eastern countries by a paper process without even an interview. Nearly all of them will have destroyed their documents and most will have crossed the channel and therefore come from a safe country. Young men in those countries total about 23 million. It is ludicrous to be talking purely about law—although it is right for this body to do so—when the policy has lost its way entirely.
The numbers could get even worse. The Migration Advisory Committee recently suggested that asylum seekers, including those who have crossed the channel illegally, should be allowed to work in any job after six months. Surely that would completely undermine the effect of any Bill before us. One is left with the suspicion that the Government’s policy is to focus on asylum to distract attention from the much greater scale of immigration more generally. As has been mentioned, net migration in the last calendar year reached 745,000. That is an incredible number, by far the highest in our history, albeit with some special factors such as Hong Kong, Ukraine and Afghanistan.
What are the possible consequences if we focus so much on asylum, without any reflection on the immigration policy itself? Migration Watch UK, of which I am president, has done some work on the population impact of asylum and immigration taken together. We have made one projection based on net migration of 600,000 a year at current birth rates. The result was a population increase of about 20 million for the UK in the next 25 years. That would be roughly 15 cities the present size of Birmingham. Even at a much lower migration assumption of 350,000, which some other think tanks have suggested, the population increase would be about 9 million.
We are looking here at policies that will have a massive effect on the future of our country. In either case, the implications for housing, health and education would, of course, be huge. To take one example from the education sector, according to government statistics, British children could become a minority in state schools in England in about 20 years’ time.
I think the noble Lord, Lord Clarke of Nottingham, was the only speaker to mention public opinion. The wider point of the Bill is surely that failure to achieve an effective legal structure to deter illegal immigration, combined with a failure to achieve a considerable reduction in legal migration, would lead to very serious consequences for the scale, the nature, and—indeed, let it be said—the continuing stability of our society.
Lord Kirkhope of Harrogate (Con)
My Lords, it is right that we approach this debate with seriousness. Once more, the responsibility to ensure real scrutiny of a Bill rests with our House.
Today, the Government are attempting to rectify what the UK Supreme Court has identified as
“serious and systemic defects in Rwanda’s framework and procedures for processing asylum claims … Its past and continuing practice of refoulement and the changes in procedure, understanding and culture needed”
before Rwanda can be considered a safe third country.
However, the Bill, as it stands, risks entangling us in a complex web of ethical and legal dilemmas that could diminish our international reputation, betray our duty to the genuine asylum seekers, undermine the rule of law and place our courts in an exceedingly difficult position. It risks creating a legislative or legal fiction. Much has been said about the infamous late-night pyjama injunctions, or Rule 39 orders, and the meddling of the so-called foreign courts. Let us be clear: the European Court of Human Rights is not a foreign court; it is a shared court. The UK was instrumental in its establishment and has significantly contributed to its jurisprudence. A British judge sits on the court and British lawyers are involved in its administration.
In Rule 39 orders against the UK, the context is that the court grants only 2% of requests. Last year, there was just one. Also, last year, the court found the UK in violation of the ECHR on only one occasion—the 38th lowest of all member states. Under the Bill, Ministers will have the power to ignore Rule 39 orders. Neither these new powers nor any amendments to the Civil Service Code would alter our international legal obligations. Should a Minister opt to disregard interim measures, this would place the UK in direct violation of its treaty obligations. How can the UK continue to be a global advocate for the rule of law—as many others have said—and honouring international commitments if this happens?
To illustrate the unprecedented nature of such an action, I point out that no member of the Council of Europe has ever taken steps to disregard ECHR rulings or interim measures except Russia, and that is not good company to be in. I am not alone in being perplexed by the inconsistencies that this policy and this Bill will introduce. Our treaty with Rwanda obliges it to adhere to the refugee convention, yet the Bill explicitly exempts the refugee convention and other international obligations from consideration within the UK.
The Government may not thank me for doing so, but I feel compelled to remind the House of the agreement with Rwanda, which included an intent to
“resettle a portion of Rwanda’s most vulnerable refugees”
here in the UK—a process that, as we know, is already under way, with numbers increasing. Even if the plan is enacted and we finally have refugees going to Rwanda, the numbers will be modest, in the hundreds at most. By comparison, in 2023, almost 30,000 irregular migrants entered the UK via small boats.
Even so, it is perfectly fair to ask those of us who dislike these provisions, “How are we going to deal with the rest?” There are many tools available to the Government. We simply need to know which tools to use and how to deploy them better. The Government have actually made progress and I commend them for that. Small boat crossings, as my noble friend the Minister has said, are down by 36% compared to 2022. The grant rate for asylum decisions in 2023 was 67%, down 9% on the year before. When I was Immigration Minister myself it was actually 19%, applying the criteria of the 1951 refugee convention fairly but firmly.
To clear the backlog, the number of staff working on asylum cases has increased significantly, and 112,000 asylum cases were processed in 2023, the most in any year since 2002. The Government have signed an agreement with Albania for removal of their nationals and to strengthen co-operation. To date, 5,500 Albanian migrants have been returned. The deal with France last year has greatly enhanced co-operation between our countries, and further agreements were secured—correctly—with Bulgaria, Turkey, Italy and Georgia. All these tools—and a number of others—have been, and will continue to be, more effective in stopping the boats than these Rwanda proposals. The Government should focus on these instead, and I believe the country would be grateful.
My remarks today stem from a deep sense of regret and disappointment in witnessing how we have become embroiled in what can be described only as an unhealthy obsession with Rwanda. This fixation appears to be an attempt to satisfy certain factions and individuals, who seem to possess neither the depth of understanding nor the nuanced appreciation of the complexities involved in asylum and immigration matters. For them, nothing will be enough—neither the Bill nor ever-more radical ideas. If we are to restore public confidence in our ability to manage our borders, we should focus on the other tools available and avoid the inevitable problems which will most certainly ensue if we persist with these proposals.
Lord Hannay of Chiswick (CB)
My Lords, when researchers and historians come to assess the work of the 2019-24 Parliament, I suspect they will be completely baffled by the reasoning that led three successive Governments—those of Johnson, Truss and Sunak—to rely so heavily in countering the obnoxious human trafficking of migrants across the channel on a scheme to send those migrants, despite the fact that a majority of them are likely to have legitimate grounds for seeking asylum, off to a small African country which our own Supreme Court has ruled is not a safe destination for them. That is without even considering their case for seeking asylum here.
This scheme, the third legislative iteration of which is before this House today for Second Reading, is deeply flawed on the grounds of practicality and of value for money. It requires the upending of the unwritten conventions which have governed the relationship between the legislature and the judiciary for centuries, by barring our courts, from the Supreme Court downwards, from intervening. It makes a bonfire of a large number of this country’s international legal commitments and puts others at serious risk of following them on to the fire—quite a score for one relatively short Bill.
I do not want to dwell for too long on the arguments about lack of practicality. We now know that the Prime Minister—when he was Chancellor of the Exchequer—set them out to No. 10 pretty cogently. It is argued by the Government that this year’s Illegal Migration Act has already proved to be an effective deterrent and has reduced the 2023 channel crossings by one-third. However, that assertion is completely unproven. A substantial part of that reduction has in fact resulted from the very welcome agreement with Albania, which enables nationals of that country to be returned as economic migrants. It is nothing to do with the Rwanda scheme.
Another unquantifiable but also substantial part of that reduction is due to the equally welcome intensified Anglo-French police and intelligence co-operation. It must be, or else we are paying an awful lot of money for nothing. Moreover, while the Government refuse to say whether there are any limits on the numbers who could be sent to Rwanda under the scheme, they must fall a long way short of those still being brought across the channel. Therefore, the deterrent effect of the Rwanda scheme is moot, to put it very politely.
As to the constitutional propriety, others have spoken about that issue, and I will not extend my remarks on it.
Then there is the bonfire being made of our international obligations by the present Bill and its predecessors. The refugee convention is first amongst them, as the Supreme Court recognised in its recent ruling. Then there is the convention against torture, the Convention on the Rights of the Child and other international legal instruments we took pride in signing and ratifying. That is without taking account of the risk that the Bill would empower the Government to step out on to a slippery slope that could lead to our departure from the European Convention on Human Rights and from the jurisdiction of its court, which, as was so rightly said by the previous speaker, is not a foreign court. I am aware that the Government assert that we are doing none of these things, but they assert that unilaterally, in the face of strong views to the contrary by the bodies set up to interpret and safeguard those commitments. On that, a reading of the testimony of the UN High Commissioner for Refugees to the Supreme Court, and more recently on this Bill, is really salutary. To do that is to make a mockery of the Government’s otherwise admirable championing of a rules-based international order.
There is a large amount to criticise in the present Bill, and little, if anything, to commend in it. It is surely a case of the cure being worse than the disease. Cures there are, and they are not simple; all require much closer, more effective co-operation with our European neighbours. They could also be helped if we were prepared to process swiftly and offshore claims for asylum. That is the approach which Italy, Germany and Denmark are said to be contemplating, not the Government’s choice of denying migrants who cross the channel any consideration at all of their asylum claims.
Lord Davies of Brixton (Lab)
My Lords, I am in favour of the amendment and opposed to this disgraceful and odious Bill. Other speakers have addressed and will address the Bill’s many faults, moral and constitutional. I will try to explain why it is right and necessary for this House to refuse to consider it further. In making the case, I will echo the speech I made on the Second Reading of the equally abhorrent Illegal Migration Bill.
We all agree that the House of Commons has a democratic mandate and is entitled to pass whatever legislation it wishes. The issue before us today is the role of the second Chamber when presented with legislation such as this Bill, which is so dreadful and unacceptable. As my noble friend Lord Grocott reminded us earlier, we are a revising Chamber, but the reality is—and we all know this—that there is no way this Bill can be revised to make it acceptable. At any rate, the Government are opposed to any meaningful amendment. This Bill is not a serious attempt to address the issues raised by immigration; it is a cynical, political fraud.
We are not just a revising Chamber; we have the power, as set out in the provisions of the Parliament Acts, to also act as a delaying Chamber. Ultimately, we cannot veto the proposed laws sent to us by the Commons, but we can delay them either for a year or until after an election. A Government who have a majority in the Commons can overrule this House, but that does not require us to always accept their proposals. In cases like this, I believe we have a constitutional duty to use our powers of delay.
In support of this view, I refer noble Lords to the words of Sir Winston Churchill on 11 November 1947, speaking as Leader of His Majesty’s Opposition in a debate on a fatal amendment during the debate on the Second Reading of the Parliament Bill. His words set out clearly why and when, in accordance with our constitution, this House is entitled—even under an obligation—to refuse to consider a Bill any further, even when it has been passed by the Commons. He argued the case for this House to take such action on the grounds of democracy. He said:
“The spirit of the Parliament Act, and the purpose of that Act, were to secure the intimate, effective and continuous influence of the will of the people upon the conduct and progress of their affairs”.
He also said something that is particularly relevant in our current circumstances:
“Is the party opposite really to be entitled to pass laws affecting the whole character of the country in the closing years of this Parliament without any appeal to the people who have the vote and who placed them where they are?”—[Official Report, Commons, 11/11/1947; cols. 204, 214.]
Those words are particularly relevant in the light of the remarks of the noble Lord, Lord Hennessy of Nympsfield. In the closing remarks of his contribution to this debate, he said that if this Bill were passed, we would be living in,
“a different land, breathing different air in a significantly diminished kingdom. Is that what any of us really wants?”
Those are exactly the circumstances identified by Sir Winston as to when the House should say no and no further. In other words, the power of this House to delay legislation should be used in the interests of democracy. This Bill does affect the whole character of the country, and this House, to the extent allowed under our constitution, should delay its passage.
Baroness Fox of Buckley (Non-Afl)
My Lords, I thank the noble Lord, Lord Davies of Brixton, for that speech. He did not pull any punches, which I liked, but I did not like anything else that he said. I find myself with “Sophie’s Choice” here. This is a Bill that I intensely dislike, but I dislike the Opposition’s arguments against the Bill even more.
I am no fan of the Rwanda plan. The absence of a much-promised review of safe routes means that there is no flexibility about who is permanently deported, and there is no ability to appeal. The Bills feels performative, very expensive and unworkable, but mainly I object to a narrow discussion on Rwanda as a substitute for tackling what should be obvious to all by now: the need for a complete overhaul of our current asylum system and a review of often outdated international laws and treaties that are regularly used to limit sovereign law-making.
Here is my dilemma: too often, opposition to any or all government proposals on migration—certainly since I have been in this House—leads to swathes of immovable blocks that effectively tell voters, “You can’t do that”. I am worried when this House plays that role itself, of being one of those blocks. Certainly, treaties and laws internationally made that no one in the UK voted for feel like a slap in the face of the electorate. I am glad to hear that, across the House, there is an understanding that the amendment of the noble Lord, Lord German, is potentially improper overreach, a sort of cancel culture applied to the scrutiny of legislation. Despite this, however, when the noble Lord, Lord Ponsonby, told the House that the Labour Benches would treat the Bill like any other Bill, I am just not convinced that this Bill is being treated like any other Bill. In fact, all migration legislation and debates that I have sat through have felt less like scrutiny and revising in good faith, and more as though they are opposing because of a fundamental disagreement on immigration. Amendments that are being put forward even now, I fear, will gut the original aim of the legislation, and that seems to me to be anti-democratic.
There has been a lot of noise ahead of today’s debate. In fact, I was reading Politico, and one anonymous Labour Peer told that publication that the Lords were preparing for “trench warfare.” He then listed the Bill’s sins: overturning the Supreme Court, being contrary to international law and human rights and so on. He said:
“All these things are likely to put lead in the Lords’ pencil.”
It is interesting that those tools of governance are what excite the juices of noble Lords in this House and get them worked up, whereas they seem rather indifferent to public concerns and rarely reference them, and then only to dismiss with a sneer the “will of the people” phrase.
The most reverend Primate the Archbishop of Canterbury stressed the important issue of individual dignity and the value of each and every individual, and of course, he is right. However, that was very much with a focus on those seeking asylum. I ask noble Lords to broaden their focus. It insults the dignity of the British public when their concerns about the potential security threat posed by those entering the country illegally in the absence of proper checks are given second-class status versus international treaties. I can also imagine how vulnerable people feel when they discover that, for example, universities are offering visas to overseas students for lower grades than their kids need to get on to a degree course in this country.
Just a few other issues are bothering me. We are trapped here for hours and hours debating the safety of one African country. I feel uncomfortable reading the plethora of briefings sent out by NGOs detailing horror stories from Rwanda full of human misery, even with accusations of torture, but I seriously worry about demonising a country for the purposes of opposing a UK policy and defeating a Bill. Maybe I am being too cynical, but I cannot help but notice that, only recently, many of the same NGOs and commentators were cheering on and lionising another African country for taking Israel to The Hague. Why did they then turn a blind eye to South Africa’s horrendous record of corruption, massacres of its own workers and standing by during pogroms of Zimbabwean immigrants, and so on? It just seems a bit like picking and choosing.
Then there is the focus on whether the Bill will damage our reputation with international institutions. Should such institutions be treated as sacrosanct? Much play has been made of the condemnation of the Bill by the UN High Commissioner for Refugees, and the fact that he denounced any UK lawmaking that wants
“to keep people away from your borders”,
saying that that “will always meet” with the UN’s disapproval. It would mean we would never be able to control our borders. However, I object to taking moral instructions from the UN on refugees after the weekend’s exposé that one of its agencies was implicated in the 7 October anti-Jewish pogrom. I will leave it there.
Lord Udny-Lister (Con)
My Lords, I do not like the Bill, but, as a number of noble Lords have said, I struggle with the alternative, as absolutely nothing else has been put forward—and certainly nothing has been suggested tonight.
I know that the Government are sincere in their desire to crack down on illegal immigration. We have an absurd situation at play in which criminal gangs and people-smugglers are taking advantage of individuals, facilitating continued violation of our borders, endangering lives and costing the taxpayer significantly. When the people of this country switch on the news, they are rightly horrified to see small boats crammed with people, and clips of small children being held dangerously in them.
The British people have proven throughout history, and indeed more so in recent times, that they are hospitable to the most in need and supportive of genuine refugees. However, their good will has been gravely exploited by the criminal gangs, who rely on an outdated legal practice and loopholes to run a mockery of not only our immigration system but the generosity of the British people. As has been said already, illegal immigration is a danger to race relations and to our society.
On the Bill, I uphold that it is for the British people alone to decide on who comes and who stays in this country. I have no doubt that they wish to see illegal immigration end and that they are fed up with the ping-pong process of legislation being passed in sovereign Parliament only for the courts to then block any attempts on the part of the Government to get on and apply it. In building on the Illegal Migration Act 2023, the Bill will, I hope, allow the Government to get on with the task of not only deterring and stopping small boat crossings but applying some needed morality and fairness to our processes for dealing with illegal immigration.
While I agree that the Bill is a mechanism that is key to stopping the boats and preventing the courts from second-guessing the sovereign will of this Parliament, I am wary that the asylum backlog, marred by the complexity of individual circumstances, could once again see this matter return to the courts on a costly case-by-case basis.
The International Agreements Committee, of which I am a member, raised a number of concerns about the agreement. These concerns will arise when the Bill is challenged in the courts, so they need resolving, and quickly.
I do not think this point has been made tonight: Rwanda itself wants to see these safeguards in place, resolved and operating because it needs them for its own reputation, and indeed because it is presenting itself, and rightly so, as a modern, leading African country. Can my noble friend the Minister provide reassurances and clarify how the provisions of the Bill which provide limited scope for individuals to raise challenges based on their individual circumstances will not be exploited as a delaying tactic rather than being a sound legal provision to protect the rights of individuals?
Further, I am encouraged by the action taken by the Government in recent times to secure agreements such as the UK-Albania joint communiqué, which has been talked about already today. Working bilaterally in that case, the Government have proven that the return of over 5,000 people who have no legal right to be here to their safe country of origin is a powerful deterrent which has seen the number of illegal Albanian arrivals to this country drop by more than 90%.
I have in other addresses to your Lordships’ House called on the Government to direct their efforts to perfecting and creating additional bilateral agreements such as this, which surely must be the most sensible way to curb the flow of illegal immigration. In this ever-destabilised world, we need a pragmatic and diplomatic avenue for the UK to continue working bilaterally with other nations to collaboratively address the growing complexities of illegal migration. I would therefore welcome an update from the Minister on how the Government are seeking to further their work in this area.
That said, the challenges that we face today are impacting the people and security of the country and require us to act swiftly. For that reason, I support the Bill.
Lord Lisvane (CB)
My Lords, were it not for the thousands of human tragedies and broken lives that are part of the problem which this Bill attempts so clumsily to solve, we would be looking at surrealism verging on the point of becoming comic. A scriptwriter suggesting this scenario would be told to go away and come back with something a little more credible. But alas, we are faced with a proposal to put legal fiction into statute.
My learned predecessor John Ley, Clerk of the House of Commons in the middle of the 19th century, once said:
“To hell with precedent! The House can do what it likes”,
and 200 years ago, so it could—perhaps. However, now we have an infinitely more complex and nuanced relationship between Parliament and the courts. Still, a key element of our constitutional settlement and the protection of our freedoms is the rule of law and not what from time to time the Government of the day use a Commons majority to say what that is, whatever the courts may have said or may say.
I fear that over the next few weeks, if there are continuing disagreements between your Lordships and the House of Commons, we shall hear an awful lot of nonsense talked about the Salisbury/Addison convention—I immediately exclude from that possibility the lapidary contribution of the Convenor earlier in this debate. Other noble Lords have spoken and will speak about the legal complexities, but in the short time I have it may be worth taking a moment to look at the relationship between the two Houses.
The Salisbury/Addison Convention, as it became known, was not invented in 1945. If it had a progenitor, it was the third Marquess of Salisbury in the late 1880s. In an age of widening suffrage, he said that your Lordships’ House had an obligation to reject, and so refer back to the electorate, especially contentious Bills, usually involving a revision of the constitutional settlement. We have come a long way since then, of course, enacting the Parliament Act 1911 en route.
There is no doubt that a manifesto Bill has a special significance in the relationship between the two Houses—but this animal has become elusive. The Labour Party manifesto in 1945 was, with Attleian brevity, only eight pages long. It was a clear and specific checklist of intentions. Nowadays, manifestos may be 10 or 20 times that length, and they have taken on the character of a philosophical tract. Distilling legislative intent is not always easy.
In 2006, the Joint Committee on Conventions examined the so-called Salisbury/Addison convention. Its report is well worth reading. The committee did not support any attempt to define a manifesto Bill. It concluded that the 1945 convention, which was, of course, between parties rather than between the Houses, had evolved and it recommended naming the convention “the Government Bill Convention”. The logic of this was that, rather than struggle to find manifesto lineage in a Bill, it was better to treat the endorsement of the elected House as being sufficient democratic authority.
That is a reasonable position to take. I would not support voting against a Bill—even this Bill—on Second Reading. Rejection on Second Reading would be read by many outside this place as a suicide note. However, I counsel care and restraint in seeking to characterise the democratic authority I referred to a moment ago. Phrases such as “the will of the people” are not appropriate—as well as being, in terms, manifestly untrue.
If this Bill is given a Second Reading, I imagine that it will be significantly amended on Report. If so, I expect your Lordships’ views to be widely misrepresented—I hear echoes of “Enemies of the People”. Exchanges between the Houses are not a face-off. They are a constitutionally valuable way of identifying any common ground and of giving the Commons the opportunity to think again. We should not buy into the urban myth that there should be only, let us say, two exchanges. When the Bill for the Corporate Manslaughter and Corporate Homicide Act 2007 was before Parliament, there were seven exchanges between the Houses—as I have some personal cause to remember. If on this Bill there are continuing disagreements, we should have confidence in the strength of our arguments.
My final point is that, when there are exchanges between the Houses, it is important to see them as disagreements not between the Lords and the Commons but between Government and Parliament. That, I think, puts them in their proper context.
Lord Blackwell (Con)
My Lords, listening to the speeches this evening, I have heard a number of noble Lords state their opposition to the Bill on what they said were moral grounds. I am not qualified to comment on the international legal aspect, but I do not accept that those who oppose this Bill can claim the moral high ground. Let me make just five quick points to explain that.
First, it is not correct to say that those individuals seeking to enter the UK on small boats are coming because they need to seek asylum here. Of course, many may have come originally from countries where they faced persecution, but, once they arrive in France or Belgium, they are already in a safe country. European citizens are not allowed to claim asylum in the UK because of that, so their choice to board a boat and seek to enter the UK is a choice that they would rather live in the UK as a more tolerant country, offering better prospects. That is a very reasonable aspiration, but we have Immigration Rules to control the number of migrants coming to the UK, which they are seeking to evade.
Secondly, it is not right that would-be migrants who bypass our immigration system should be given precedence over others. It is a valid point of view that we should have no limits to immigration—open borders to all—but, as others have said, in the modern world, that is simply impractical. So, if you accept that the UK should have immigration controls to limit the number of people who settle here, you have to accept that those rules should be enforced.
Of course, we always have been and continue to be willing to accept our share of those fleeing persecution, and we should be proud of our record in that regard, as my noble and learned friend Lord Stewart of Dirleton said in his opening remarks. However, it is not fair or reasonable to allow migrants coming from an already safe country, choosing to come here as a matter of preference rather than necessity, to bypass our normal immigration controls and jump the queue by paying people traffickers to smuggle them in.
Thirdly, while many in this House have argued that Rwanda may not be an attractive location compared with remaining in the UK or France, if we pass this Bill, it will be those who choose to get on the boat to be smuggled into the UK who are making their choice to go there. We will not be imposing this outcome on unsuspecting individuals who come to the UK on different terms. Anyone seeking to bypass our immigration system will be making that choice in the full knowledge of where they will end up. It will be their choice about how comfortable they will be in Rwanda, not ours. If they are not comfortable with that, they can safely stay in France and apply to migrate to the UK in the normal way through our normal procedures.
Then there is the numbers argument. Some argue that the policy cannot work because, they say, thousands of migrants cannot be accommodated in Rwanda. That misses the point. If the policy is successful, very few individuals will actually be sent to Rwanda, because the certainty of being removed from the UK will remove the incentive to come here illegally. In fact, the most successful policy would be if no migrants were sent to Rwanda.
Finally, there are those who argue that there is a magic bullet—a better solution. But the only alternative offered to stop the flow of small boats is to crack down on criminal gangs. Well, while it may be possible to do more to disrupt the large criminal gangs, you do not need much organisation to procure a small dinghy and sell it to those who want to make the crossing. We cannot patrol the whole French coastline. So this alternative is simply not credible. As long as the channel crossings remains a viable route into the UK, people will keep coming.
In summary, I simply do not accept that it is the moral high ground to allow a situation to continue where people smugglers will put more lives at risk through dangerous channel crossings and where migrants who bribe their way onto these boats to evade our immigration controls can jump the queue over others who may have a better claim to settle in the UK. That is not moral, but that is what will happen if we block the Bill. So I will support this Bill on the basis that stopping the boats is the moral high ground, and I urge other noble Lords to do the same.
Baroness Jones of Moulsecoomb (GP)
My Lords, finally we have it here. We have been waiting quite a long time for this Bill, and it is very irritating that it is so misleadingly named, because of course the Rwanda safety Bill is the opposite of what is: it should really have been called the “Rwanda Not Safe At All Bill”. It amounts to a stupid, messy, inhumane, cruel, immoral and idiotic way of thinking that you can solve the problem of migration like this.
The Government have created this problem by not putting in, for example, better safe, legal routes. There have been lots of answers coming from these Benches about other possibilities.
Sorry, did somebody speak to me? That is not on.
The Government have created this problem. They have thrown together something they call a solution that is not a solution at all.
It is the noble Viscount, Lord Hailsham, who keeps talking. Can the Whips have a word with him, please?
The Government have dishonoured both Houses by tabling the Bill and bringing it to us to debate. It was wrong to bring this Bill to us; it was wrong to develop it at all.
First, there is the title. Rwanda is not a safe country. We have heard that again and again from the courts. The UK has just accepted for asylum Rwandans who were in fear of persecution if they stayed in Rwanda. That does not sound very safe. Just because this Government say that it is safe does not make it safe. I have heard some ridiculous things from that side of the Chamber. I have heard some very good things, by the way, but also some quite ridiculous things about how Rwanda is safe. It really is not. Secondly, we will be in violation of an international treaty. Do we want to be seen as a country that cannot be trusted, that signs an agreement then backs out of it? I would have thought not.
This is an exceptional Bill which needs us here in your Lordships’ House to take exceptional action. Stopping a Government who have a track record for introducing draconian laws overruling our courts is what we are here for. It is our job. Today we are talking about the rights of refugees but, if your Lordships accept this Bill going through, what is to stop a Government with a big majority then disapplying other human rights? The path to a totalitarian state is not just the Government banning strikes and effective protests or restricting the right to vote—all of which have happened—it is Ministers pushing through laws that say, “This group of people deserve no human rights and the courts are banned from helping them seek justice”. Today it is refugees but tomorrow there will be another scapegoat to target. Some of them might be vile people doing horrible things but that is the point of human rights. Human rights are for all of us. They are there to defend everyone’s right to justice, whether they are saint or sinner, whether the Government like them or hate them.
Convention is on the side of rejecting the Bill. The Labour Front Bench does not like the Lords blocking what MPs have voted for, and I understand that we should use this power sparingly, but, as we have heard, Labour has done it. It had its own successful fatal Motion 11 years ago so I think that it could support today’s fatal amendment if Labour Members just held their noses. I am proud to say that last year the opposition parties joined together to beat the Government on the water pollution rules. A year before that, we rejected outright the 18 pages of government amendments restricting the right to protest and forced the Government to come back with new legislation.
The Rwanda Bill was not in the Conservative Party manifesto. Disapplying the Human Rights Act was not in the manifesto. Convention allows us to reject it. Also, as someone said, it will take us hours. We will be sitting here for a very long time and many of us probably do not have that many hours left and should think, “Is that how we want to spend them—fighting this Government, not winning and having all our amendments sent back?”, because that end of Parliament does not understand what we are here for. If the Prime Minister genuinely believes that this is the will of the people, he should call a general election. Please give the public a chance to have their say about this, about the PPE corruption and about the mess that the Government have deliberately made of the NHS.
I have talked to a lot of people outside your Lordships’ House. Some, of course, are concerned about the boats arriving, for all sorts of reasons. But on doorsteps, in streets, offices, shops and pubs, the talk is less of “Stop the boats” and much more of “Stop the Tories”.
Baroness Lawlor (Con)
My Lords, I am glad to follow the noble Baroness, Lady Jones of Moulsecoomb, and thank my noble and learned friend the Minister for introducing this Bill to deter illegal migrants from making the perilous journey across the high seas.
Despite the law being there, it has not been executed because of successful legal challenge and will not deter. It remains a hollow threat. The new Bill responds to this legal challenge and the Supreme Court judgment by ruling out any generic challenge based on debate about the safety of Rwanda. However, the Bill is not without its own problems, some of which have been referred to today. I will raise two.
Will a successful challenge on individual circumstances become the prototype for other challenges of the same sort? Will there be a successful challenge to the Strasbourg court and what will be the response from a Minister of the Crown to an interim remedy? While I am willing to give the Bill a chance, I am concerned that it is not a satisfactory basis on which to ask the UK Parliament to pass a law. I am concerned about an attempt to have it every way, to be within international law yet disapply certain parts so that that the UK somehow avoids its parameters. I urge my noble and learned friend to ask the Government to exclude, clearly and categorically for the purpose of this Bill, the provisions of those international treaties which make it impossible to honour the mandate to the electorate to control the UK’s borders.
The attempt to run with the hare and run with the hounds is bad for politics, bad for the courts and bad for the constitutional arrangements where Parliament makes the law and the courts interpret it. We have a sea border. We have our own Parliament. We have the finest judiciary in the world. It is time to capitalise on these facts. We need to make our law clear and, if need be, clearly exclude those parts of international law which bind this country and replace them with our own law; otherwise, we shall reap the constitutional and political instability faced by many western countries because we seem to be failing to honour the promise that the electorate sees as its priority.
Across Europe, settled Governments are crumbling, political systems have been undermined, constitutional stability and order have been threatened, and voters have lost confidence in the politics of “business as usual”. The EU is now proposing another measure to control illegal migration which involves quotas and fines on countries that do not take their quota and which is not set to come into law for a year. That is no answer; nor do our neighbouring countries consider it sufficient. In Germany, the left coalition seeks control over migration. France finally passed its own immigration law and, within weeks, the constitutional court of that country has challenged parts of it. Denmark is trying its own scheme and in Holland, Geert Wilders was elected because he promises to combat immigration and undermine the stability of the Rutte Government.
The UK Government should clearly and boldly reject those elements of the existing international treaties which make it impossible for them to act against illegal immigration as the electorate wishes. They should aim to return to the initial proposal of the coalition years to introduce their own Bill of Rights, covering these things with the generosity that we have always shown to asylum and protection claims from people in need. Far from making itself an international pariah, the UK would show itself to be a leader, the one country brave enough to face today’s facts and open the way to solving a problem that concerns almost every developed country.
Baroness Kennedy of The Shaws (Lab)
My Lords, I start by emphasising that the Bill is unlawful. It contravenes international law, it contravenes our own laws, it is unworkable, it is unaffordable, and it is immoral—because it involves taking incredible risks with human life. Your Lordships will remember that when the judgment from the Supreme Court came down, Lord Sumption was interviewed by the BBC. It was suggested to him that already the Government were saying that they were going to pass this kind of Bill. Quite shocked, he said that it would be “profoundly discreditable” of them to pass a law which flew in the face of a judgment recently given on the fact that Rwanda was unsafe. That is the shameful thing here. Of course, Parliament is entitled to do what it likes, but to say that black is white, or that Rwanda is safe when it clearly is not, is shameful.
The Supreme Court was clear about the facts. It based much of its ruling on the judgment from the Court of Appeal by the distinguished judge Lord Justice Underhill, whose judgment and contribution was as long as War and Peace in the number of words describing the failures of Rwanda in the past in considering applications for asylum; the ways in which it returned people by refoulement; and the climate of fear that exists in Rwanda. There is no independent judiciary because they are captured out of fear of Kagame, who rules with a rod of iron.
People are in fear of speaking out. If you go to Rwanda and ask people about their system, of course they cannot tell you the truth about what takes place. I received an email today from NGOs in the Congo that deal with immigration issues, and I asked if any of them was prepared to give us assistance at the Joint Committee on Human Rights. They said that no one was prepared to speak because they are so in fear of the long arm of Rwanda. They are entitled to feel that. The man who was the subject of the great film “Hotel Rwanda” and managed to evacuate so many Tutsis who were being massacred during the terrible genocide was himself arrested, picked up in Dubai, kidnapped and brought back to Rwanda, because he had criticised Kagame.
In 2018, 12 Congolese asylum seekers who made a peaceful protest about the rotting food they were being asked to eat were shot dead by the Rwandan police. If we are morally content to send people back to these risks, then we should think again.
Let us be clear on the purpose of this. It is because we have an election coming up and the Government want to run up the flag the old subject of immigration and put people in fear of what that might mean. The Government know they cannot fix Rwanda’s legal system in a matter of months or even years, so they have basically struck a deal with Rwanda to take everyone we send—economic migrants as well as asylum seekers. A person will get a place in Rwanda irrespective of whether they are an economic migrant or a refugee. All comers will be fitted in, except that in the treaty—as it was in the memorandum of understanding, although it is never mentioned to the general public—there is a special arrangement that Rwanda can send its vulnerable asylum seekers to Britain. I was glad to hear this mentioned by the noble Lord, Lord Kirkhope.
You may ask yourself, “Who are these vulnerable asylum seekers?” One example is that Rwanda has a problem on issues like homosexuality. It is not that there is a law against homosexuals, but they would have great difficulty getting by and living their life as homosexuals if people were to know it. The persecution of homosexuals is very real. There is a whole issue around the Afghani Hazaras, a minority within the Shia tradition of Islam, who are persecuted by Sunni Afghanis. Is there any risk to them if they were taken there for asylum? What about people with mental illness? There are very few psychiatrists in the whole nation of Rwanda, despite there having been a genocide 30 years ago, and 25% of the population suffer from mental illnesses that cannot be treated. The vulnerable people who will be sent here to make use of our medical treatment will be those poor asylum seekers.
It is costing £400 million for very little, but of course it is all about “performative politics”—to use the term mentioned by the noble Baroness, Lady Fox—at the expense of human lives. We should be ashamed. We had a proud tradition of the rule of law, which I hold to my heart. Let us not forget it—but we are forgetting it here.
Baroness Meacher (CB)
My Lords, we have had many excellent speeches today and I will, therefore, speak briefly. I am sure we all support the purpose of the Bill, to prevent and deter unlawful migration. However, as the noble Viscount, Lord Hailsham, argued so strongly, the Bill will not achieve that objective.
Our UK immigration policy must not involve breaking international law or human rights—this country has a proud history of upholding both, at all times. As a result, the UK has a priceless reputation enabling us to play a key part in seeking to persuade rogue nations to reform their policies in line with their international obligations.
Only when Rwanda is a safe country, and truly safe, and when the UK Parliament has endorsed this position, can people be removed from the UK to Rwanda in compliance with all our obligations under international law. To satisfy the definition of a “safe country”, all the provisions of the treaty with Rwanda must be implemented by Rwanda, including the establishment of a non-refoulement commitment; strengthening the monitoring arrangements; and strengthening Rwanda’s end-to-end asylum process. All these matters must be bedded in.
If this highly questionable policy is to be pursued—and I have picked up fairly strongly that it is highly questionable—the vital need is for the Bill to be delayed until Rwanda has implemented all the provisions of the treaty and those provisions are bedded in. Only then can the Bill legitimately refer to Rwanda as a safe country for immigration purposes. Delay is the role of your Lordships’ House in this situation, together with a request to the Government to think again.
Lord Frost (Con)
My Lords, we have heard a lot of anger and outrage this afternoon, and a lot of agonising about nebulous concepts such as international influence and reputation. We have heard much effort to side-slip away from our dualist system of international and domestic law, a lot of advocacy of a purist view of separation of powers that has never applied in this country, and a surprising degree of deference by this sovereign Parliament to a Supreme Court that did not exist two decades ago, is not a constitutional court in the US or European sense—much as many people seem to wish it was—and has decided that it is the fount of wisdom not just on law but on complex issues of foreign policy. Indeed, when it comes to the safety of Rwanda, it seems that the Government’s facts are just judgments but the Supreme Court’s judgments are facts.
Maybe it is useful to get back to the essentials. Perhaps it is old fashioned, but I believe it is the job of a national Government to set terms for who may enter the country, and to control the border accordingly. I think that proposition would be widely agreed on in this country, but seemingly not here. Here, it is suggested by many noble Lords that in significant areas the terms of entry must be set by international conventions agreed decades ago by a European court that seems to believe it has the right to define the extent of its own powers, and by the people traffickers and criminals who make it possible for large numbers of people to take advantage of these terms. We are told, in other words, that the British Government should not, in practice, be able to set the terms under which people can come into this country. I put it that starkly because we can then see that this is not a proposition that would command widespread assent in this country.
This current situation cannot be sustained in modern conditions. The Government are right to do what is necessary to re-establish control. Control must mean that the Government define the conditions for entry into the UK; that one of those conditions is that if you arrive illegally, you do not have the right to stay and must therefore go somewhere else; and that we have no obligation to take in just anybody who shows up and can claim asylum, in whatever numbers. It may well also have to mean that if international law, whether the ECHR or any other agreement, says anything different, then so much the worse for international law. All these things may be unpalatable—and I know they are unpalatable to many in this Chamber; it is much easier to avoid thinking about them—but if you do not do these things, you do not have control.
To the extent that I understand the alternatives most widely advocated by noble Lords, they seem to involve establishing so-called safe and legal routes for the many people who currently show up here illegally—in other words, to acquiesce in the reality that we do not control our borders, and to give up trying. The truth is that safe and legal routes will be rapidly overwhelmed by numbers, and that illegal arrivals will continue.
The most reverend Primate, who is in his place, reminds us that all human beings are of great value. Of course I agree with him, and for the same reasons; of course we should welcome the stranger. But, in my very humble view, in this area you cannot get from that undoubted existential truth to a political proposition—a proposition that large numbers of people from many countries around the world, if they can persuade a criminal trafficker to take them, have the de facto right to settle in this country. Those are propositions of a completely different nature and kind.
It follows logically from all this that of course I support the Bill and its deterrent purpose. I admit some doubts as to whether, in its current form, it will be robust enough to achieve the desired end. I think it would certainly have been better if it had been amended to strengthen the exclusion of international law, as proposed in the Commons; in my view, we will one day have to go there. But it is done now; the Commons debated it fully and has spoken. I support the Government in bringing it into force swiftly and I hope noble Lords will do likewise.
Baroness O’Loan (CB)
My Lords, as I have listened to the debate today, I have been very much aware that noble Lords are seized of the fact that our role is to scrutinise legislation, not to rubber-stamp government proposals, as I think we are being asked to do by No. 10. This is our duty and I have no doubt that your Lordships will fulfil that duty with integrity.
Last week, we voted that the Rwanda treaty, on which the Bill relies for legitimacy, should not be implemented until the mechanisms and processes it establishes have been given effect. For the moment, they are aspirational. Anyone who has been involved in the process of establishing new systems and mechanisms knows that these things are not done properly, even in a country such as the UK, which has the advantage of a long-established judicial and criminal justice system and is familiar with accountability mechanisms. Rwanda is not that type of country.
I know that the Bill applies only to those who have come to the UK by unsafe and illegal routes, and that the destruction of the human trafficking business which facilitates access to the UK by these routes is a very necessary and desirable aim. That goes to the heart of the Bill.
Analysis and research led by the Bingham Centre for the Rule of Law finds, inter alia, that the Bill and treaty would put the UK in breach of its obligations under Article 4 of the ECHR and Article 10 of ECAT: obligations to identify and assist every potential victim of modern slavery and human trafficking, regardless of immigration status or method of entry. The Northern Ireland Human Rights Commission has said that the Bill
“will, deliberately, abdicate responsibility under the 1951 Refugee Convention, threaten the international refugee protection regime and risk the erosion of the UK’s standing and ability to collaborate in the multilateral system”.
We cannot by stating something make it a reality. If Rwanda is not safe for some people—many noble Lords have pointed out why and where it is not safe, and have pointed to the people who have been given asylum here from Rwanda—the question must arise: what does it mean to say that it is a “safe country”? As the Law Society of England and Wales said:
“Simply put, the Supreme Court found Rwanda to not be a safe country; legislating the reverse will not change the situation on the ground”.
We cannot by legislation make the statement in Clause 1(5) a reality. We have not been told what has changed since the Supreme Court judgment, apart from the making of the Rwanda treaty a few weeks ago—which, as I said, contains a range of aspirational measures that will require very significant work to become operational. As the Law Society also said, as the Bill stands, even if the court is presented with overwhelming evidence that Rwanda is not safe, it would have to ignore that evidence and treat Rwanda as a safe country.
Redress, which pursues claims on behalf of survivors of torture, makes a very important point:
“The Bill sends out a dangerous signal that the UK is willing to circumvent the rule of law, and so undermines the international rules-based order. The UK has historically led the way in establishing the rule of law and should not now contribute to the threats it faces internationally”.
But we know, because we have seen it in your Lordships’ House, that this Government are getting into the habit of disapplying their human rights obligations and undermining the rule of law. I point yet again to the legacy Act passed in Northern Ireland, which removes all rights to compensation under the civil law, to inquests and to prosecutions, except in very limited circumstances.
The Northern Ireland Human Rights Commission advises that refugees and asylum seekers are protected by Article 2 of the Windsor Framework, and that rights particular to refugees and asylum seekers are within the scope of the Good Friday agreement by virtue, in particular, of the commitment to civil rights and to incorporate the European convention into domestic law. It cites many measures which are binding on the UK and which continue to set standards for human rights protection below which the law in Northern Ireland should not fall. Yet this Bill seeks to deprive individuals of that protection. It suggests that the current relationship between the UK courts, the UK Parliament and international law is balanced—but this Bill will create an imbalance.
We have heard so many voices articulating the dangers and, indeed, perils of this Bill. Undoubtedly, we have to find ways to resolve the problem that gave rise to the Bill and to dismantle, if possible, the highly lucrative businesses profiting from the plight of those who seek a safer and better life. I do not think that many of us could live in Syria, Afghanistan or anywhere else on a salary of about £10 a month, which is the average salary there.
This Bill is not the way forward. At the very least, until Parliament can be assured that the mechanisms and institutions of the Rwanda treaty are in place and that there is consideration of each asylum seeker and any particular vulnerabilities they may have, Parliament should exercise its sovereignty and decline to pass this ill thought-out Bill.
As the noble Lord, Lord Carlile, pointed out, the Government have yet to respond to your Lordships’ decision on the Rwanda treaty, which is so fundamental to the Bill. This Bill does not stand alone. We will appear ridiculous if we pass a Bill saying that Rwanda is safe simply to overrule our independent Supreme Court, which said that it could not be considered a safe country.
Baroness Lister of Burtersett (Lab)
My Lords, I refer to the register of interests for support from RAMP. I start by simply noting rather than repeating the concerns I raised in last week’s debate: the incompatibility of the treaty and Bill with our international obligations, the treatment of LGBTQI+ asylum seekers and of children, and the widespread scepticism about claims of a supposed deterrent effect.
Today, I will focus on Clause 3’s disapplication of the interpretive and remedial provisions of the Human Rights Act, in part because of this clause’s contribution to the Bill’s incompatibility with our international obligations, as advised by the UNHCR, with implications for the Good Friday agreement, as the Northern Ireland Human Rights Commission points out in its very critical advice on the Bill, and because of what it means for human rights and for how asylum seekers are seen and treated. Here I echo some of the points made by the right reverend Prelates the Bishop of London and the Bishop of Durham.
A briefing paper from the chair of the Joint Committee on Human Rights warns of the significance of disapplication:
“Human rights are meant to offer a fundamental level of protection for every person on the basis of their humanity alone. As … noted in a previous report, if those protections are disapplied when they cause problems for a policy goal they lose the fundamental and universal quality that characterises them. This is arguably particularly the case when they are disapplied in respect of a particular group”.
While the Government are beginning to make a habit of disapplication to marginalised and unpopular groups, as has just been said, the briefing points out that the disapplication of Section 6, which places
“the obligation on public authorities to act compatibly with human rights, has never before been attempted and represents a significant inroad into human rights protections”.
These concerns are echoed in numerous briefings, including from the EHRC, the Law Society and Amnesty.
Let us stop and think what this breach of the universality of human rights means. In effect, it is saying that asylum seekers are to be treated as less than human—as, to quote the noble Lord, Lord Singh of Wimbledon,
“a lesser form of life”.—[Official Report, 4/12/23; col. 1276.]
Their humanity is not worthy of human rights protection.
“Stop the boats” is the Government’s mantra, but what about the human beings in those boats? Do they somehow stand outside the universality of human rights? The Government have paved the way with the dehumanising language they have used to talk about asylum seekers—the language of “invasion”, “breaking in”, “cannibalise”—language which has helped induce the public concern that the Government cite to justify their policy, a point made by the UN High Commissioner for Refugees when speaking to the BBC last week.
Words matter, as the Migrant Rights Network stresses. Their significance is brought home by Erfan, an asylum seeker who writes how he came to realise
“these are not just words. They build a completely new identity, which then justifies how you will be treated, seen and talked about. The language that dehumanises people makes it seem acceptable to place them in inhumane conditions and cut off from society”.
This language now makes it seem acceptable to deny human rights protection.
A statement from MIN Voices, a group of refugees and asylum seekers, some of whom are from Rwanda or neighbouring countries, ends:
“We are human beings, wanting and seeking a safe future”.
By King, a young client of Freedom from Torture who fled persecution, asked in a recent Big Issue piece about the Rwanda plan:
“Why is the UK government refusing to treat refugees like human beings?”
Perhaps the Minister could give her an answer. Instead of an approach which, to quote the British Red Cross’s VOICES Network of those with lived experience,
“disregards the wellbeing and dignity of vulnerable individuals seeking refuge”,
we need, in its words,
“a more humane and compassionate asylum policy”.
I hope we can help achieve such a policy, because if the current Bill passes unamended, I will feel nothing but shame.
Baroness D’Souza (CB)
My Lords, I wish to make three points, which have already been made several times in the context of this debate but will not suffer from repetition and which will also allow me to contribute to later stages of the Bill.
It is unreasonable that the Bill asks parliamentarians to override the rulings of the Supreme Court, thereby touching on the constitutional convention of the separation of powers. It is equally unreasonable that the Bill insists that Rwanda is safe—not “could be safe” or “might be safe” but “is safe”. It is also unreasonable that the Bill asks parliamentarians to vote to undermine very important international conventions and much UK domestic law.
The Bill needs radical scrutiny and amendment, and thereafter it needs a steadfast resistance to the pressure of the Government to accept what is, to my mind, a very bad Bill.
Baroness Verma (Con)
My Lords, I refer noble Lords to my interests in the register. I am an immigrant, the daughter of immigrants and the granddaughter of immigrants. My grandfather came to this country in 1938.
However, I support the Government on the Bill, because when we have spent millions of pounds in aid trying to help countries such as Rwanda become more accountable, have greater governance and become safer and more transparent, then to vilify them, like we are doing here today, really does make me quite sad and upset. I work a lot in Africa, and I see the progress that countries in Africa are making. Can noble Lords imagine what they must be thinking of us vilifying them the way we are today, when we spend millions of pounds in aid trying to support them to become more accountable? What is the point, then, of all those billions being spent by the global community?
Of course, we have to be fair. I am not a lawyer; I do not pretend to be a lawyer; I do not have the expertise or experience of good lawyers. But I do know—it is actually what the noble Baroness, Lady Fox, said—that we cannot be hypocritical here, where we look at one country and it is fine, and yet with another country it is not so fine, just because we happen to want to take asylum seekers, who should not be here in the first place, to a country we deem unsafe.
I have sat here and listened to this debate, and I have watched the debate on the TV. Trust me: I am not a person in the Conservative Party to the far right of anything. I have spent my lifetime fighting for people’s rights, but I also have found myself fighting for the continent that constantly is put down because it is poor. I did not want to say it, but I will say it, because I have sat here listening to most of the debate today. Is it because it is poor, and because it is Africa, that we have this debate where we can vilify a poor country? It is a country that has come through genocide, and is not perfect, but neither are most countries on earth.
Instead of saying that we will work with Rwanda continuously, and will support Rwanda and the people going there, we sit here and constantly call it unsafe. That is unfair on a country that has gone through so much trauma itself. I was looking at the statistics of Rwanda’s economic growth: it had 6.6% GDP growth last year, so it is doing something right. We need to encourage democracies that are trying to become more democratic, not stand here and vilify them as unsafe because we deem it so—because we in the West deem who is safe and who is unsafe. Perhaps it is time we start to have an honest discussion with ourselves about what we really want for our place in the world. Our place in the world should be one where we work with countries to elevate them, and they become safer and more economically viable, so that people do not want to leave those countries and so they are part of the growth.
I heard the word “odious” so many times today; I heard the words “black and white”, and it really does impact on me, as somebody who has worked so hard to be part and parcel of this community, to make sure that fairness runs through all of us. But that fairness has to then translate to countries that genuinely want to be on the path of growth. We sit here and decide through our lens which countries are safe and unsafe without actually saying that we will be part of the solution, to make them even safer.
Lord Hacking (Lab)
My Lords, there are not many advantages to speaking so late in the debate, but one is that you can experience the feeling of the House. I have listened to all 55 speakers who have preceded me—except for four or five of them, when I was out of the House. Of those, 37 Members of your Lordships’ House have spoken against the Bill, including five Members on the Conservative Benches, who made very powerful speeches. We all remember the powerful speeches of the noble Viscount, Lord Hailsham, and the noble Lord, Lord Clarke of Nottingham. Against that, only 10 speakers have spoken in favour of the Bill.
At this time of night, I think it best that I go straight to giving your Lordships my reasons for being strongly opposed to this Bill. Let us work with the facts. In the official statistics issued for 2022, it is recorded that 8,756 Afghan migrants arriving here applied for asylum status. Of those, 97% were granted asylum. This is hardly surprising given the reports that we still regularly receive of breaches of human rights by the Taliban. On the radio only a few days ago, I heard a report that women were not only banned from education but banned from going out to work, creating serious problems for supporting their families.
I turn to the statistics for 2023. We do not have the official statistics yet, but we have been told that there has been a drop in the overall migration figures in relation to the boat people; that has gone down from about 45,000 to 30,000. It is therefore reasonable to conclude that there are now about 5,000 Afghan migrants eligible for deportation to Rwanda.
Let us look at the journey that those migrants have made. The distance from Kabul to Calais is 4,168 miles, nearly double the journey from one coast of the United States of America to the other. I cannot tell your Lordships their exact route, but the assumption is that they took the land route, and that they would have had to go through Pakistan, Iran, Iraq and Syria, then decide whether to go north-east, to enter Europe via Greece, or west, to enter Europe via Italy. They would not have travelled in any air-conditioned coaches, let alone aeroplanes. Their only means of undertaking this colossally long journey must have been by hitchhiking on lorries.
What will happen to those 5,000 Afghans if they are deported to Rwanda—which will follow from the implementation of this Bill if the Illegal Migration Act is held to be lawful? They will lose their UK asylum rights and will be branded as illegal migrants. If they try to get back here, they will be rejected. Therefore, I ask the whole House, looking around to all Benches and those of us still here: is this remotely fair or right? Can we possibly allow this to happen when we have the constitutional right to stop it by refusing to allow the Bill to pass through this House? The question is whether we attempt to do so now, at Second Reading, or later, at Third Reading.
Lord Faulks (Non-Afl)
My Lords, the Government have stuck with the Rwanda scheme despite the Rule 39 decision in Strasbourg in June 2022 and despite the decision of the Supreme Court, which concluded that Rwanda was not safe.
The Strasbourg court’s interim ruling has been described as a ruling by a foreign court delivered by a judge in pyjamas. I do not think that is a helpful way of characterising it. All courts need to have the ability to make interim orders, sometimes at inconvenient times of day, and the court is not foreign to us as long as we remain members.
However, the decision was based on the Strasbourg court’s own rules rather than on what is in the European convention. It was made by a still-anonymous judge. No reasons were given and there was no chance for the Government to come back on a return date. This breaks just about every rule of natural justice and procedural fairness that normally applies in applications for interim relief.
As to the Supreme Court’s decision, it said that Parliament should not legislate to reverse the decision of what is the final court of appeal in this country. But Parliament has done precisely that in relation to three decisions, to my certain knowledge, in the last two years. I was chairman of the Independent Review of Administrative Law and the panel considered carefully whether it was appropriate for Parliament to reverse decisions of the Supreme Court. We concluded that Parliament should think long and hard before doing so, but that it was perfectly orthodox for it to take such a course. Indeed, the submissions we received from all senior judges did not suggest otherwise.
Viscount Hailsham (Con)
I thank the noble Lord for giving way. Is there not a difference here—a difference between disagreeing with a view and disagreeing with a finding of fact?
Lord Faulks (Non-Afl)
I am grateful to the noble Lord; I am coming on to that point. There were certain unusual aspects of the decision of the Supreme Court, which is normally concerned with points of law of general public importance rather than findings of fact. It might be better to describe the decision as rather more of a risk assessment based on the evidence before it rather than a finding of fact but, in any event, the Government have since responded to the court’s concerns, as your Lordships have heard.
I ask the question rhetorically: if the matter were before the Supreme Court today, would the judges come to a different conclusion? One should bear in mind that, even before the new steps taken by our Government and that of Rwanda, this case was finely balanced. The Court of Appeal was not unanimous on the matter and the Divisional Court found in favour of the Government. I also note Lord Sumption’s evidence to the Joint Committee on Human Rights acknowledging the Government’s response to the Supreme Court.
The Bill tackles some really big legal issues. In the view of the lawyers for the Government, it has gone as far as it can go without infringing international law. We know that there remain opportunities for litigation—lawyers have already announced their intention to take them—but the arguments on the law will have to wait until Committee.
At this stage, it is important to consider what the alternatives to the Rwanda scheme are, and so I turn to Labour’s position, and here I would like to mention Sir Keir Starmer. He has been criticised as being a “lefty lawyer”. I have had the privilege of being against him in court and, if he is a lefty lawyer, he is certainly a good one. I think it inappropriate to criticise him for the fact that some of his clients would not necessarily feature high on everybody’s desired guest list for a dinner party. What is his policy vis-à-vis the boats? There has been some talk of better relationships with France and better safe routes, but at the absolute centre of what is said to be the strategy is apparently Sir Keir himself. He reminds us regularly that he was DPP from 2008 to 2013. He was not in charge of Border Force or the National Crime Agency; he was supervising prosecutions at a very macro level—which is why I am reluctant to blame him for shortcomings in relation to the prosecution of, say, Jimmy Savile, or even the poor victims of the Horizon scandal. But he cannot have it both ways. Is it really suggested that, on the very arrival of Sir Keir, a former DPP, at No. 10, the smugglers will simply roll up their rubber dinghies and give up their promising and profitable business model? Is Labour’s alternative deterrent none other than Sir Keir himself? I am afraid I am unconvinced by that.
It comes to this: Rwanda is, at the moment, the only game in town. We all agree that we must stop the boats. The Government have made progress but need to go further. This Bill will enable the scheme to take effect—courts here and in Strasbourg permitting—and I admit it may deter those who sustain the people smugglers’ business. Other European countries face the same challenges and are actively considering similar schemes. Of course your Lordships’ House will scrutinise this Bill carefully, but we should retain some constitutional modesty. The elected House has passed the Bill. Many people in this country consider that their Government should be able to control our borders against illegal migration, and we should not ignore them. In the absence of any cogent alternative, while we should strive to improve the Bill, we should not wreck it.
Baroness Stowell of Beeston (Con)
My Lords, it is a great honour to follow the noble Lord, Lord Faulks. My noble friend Lady Verma has just given an exceptionally powerful speech, and I was very pleased to be in the Chamber to hear it. Like her, I have not heard as many speeches in today’s debate as I would have liked, because I have been attending to other parliamentary business in the Moses Room. However, I am quite sure that there will have been lots of speeches by distinguished noble Lords drawing on their expertise, and particularly their legal expertise. My own perspective paints a bigger picture; while it will, I am sure, go against the majority of opinion expressed in this House so far today, it is a perspective I would like to give.
Earlier this month in a debate about the standing of parliamentary democracy, I said that the Post Office scandal illustrates powerfully what is driving many voters’ disaffection: namely, that those of us in positions of authority do not listen or take seriously what voters are telling us when what they say or want does not correspond with what we have decided is right and want to do. The same is true in how we react to the majority’s demand for lower levels of legal immigration and an end to the large numbers of illegal migrants entering and staying in our country. Instead of working together over the last eight years to address one of the underlying causes of Brexit, we have decided that the real problem is that, at best, the voters do not understand why they are wrong and cannot have what they want, or, at worst, they are bigoted for their views.
As I have said before in other debates, people do not expect simple solutions to complex problems but they do expect people such as us to be motivated by the kinds of simple values that any decent, upstanding citizen instinctively shares. We evidence that to them by how we do our job, which must include listening and showing that we understand their experience of the problem that only we have the power to fix.
The travesty of our collective response to the public’s demand that we—the whole of Parliament—get a grip on illegal immigration is that, time and again, convinced that we know better, we have chosen to stand alongside those who enter our country illegally and about whom we know nothing over our fellow citizens who are affected by our decisions and who we rely on to pay their taxes, abide by the law and generally keep the country afloat. When it comes to immigration, our repeated efforts to thwart what the majority have voted for are the clearest representation of the division between insiders and outsiders that led to Brexit and all the other democratic shocks that have since followed. That a majority of Members of this House persist in obstructing at every and any opportunity all measures to deal with illegal immigration shows voters that we have learned nothing and nothing has changed.
To those who argue that a majority do not support this Bill, I argue that it is hardly surprising that people who want tougher action to prevent illegal immigration are losing faith in our ability to succeed. We have done nothing to show that we want to. To be clear, it is normal for people who are angry and want us to clamp down hard on illegal migration to be at the same time welcoming of those who come to this country via approved schemes. My friends and family in Beeston Rylands, the area where I grew up, and which has recently become home to hundreds of people from Hong Kong, are testimony to that.
Whether or not the Rwanda scheme is implemented, it will likely do little to change the Conservative Party’s prospects come the next general election. That is not why I support the Bill and doing whatever it takes to deter people from attempting to enter our country illegally. For me, this is about our duty to deliver what people voted for, regardless of our own politics. The fact that we are having to consider a Bill that is causing so much angst among noble Lords is, in my view, a result of our collective failure.
People go on about populism and populist politicians and how they need to be counteracted. Perhaps those same people should consider why people are pushed towards populism and populist politicians in the first place. Unless we start listening and taking seriously what the majority of voters want, and work together to improve conditions for them—because they are the people who uphold all that we as a country say we stand for—we should not be surprised if they deliver for us yet more electoral shocks.
Lord Wilson of Dinton (CB)
My Lords, I begin with an anecdote that has some tangential connection with what the noble Baroness has just said. In 1988, when I was minuting Baroness Thatcher’s meetings, I minuted a meeting discussing the Immigration Act 1988, which required polygamous immigrants to choose which of their wives they wanted to have with them. She listened and nodded it through, and then said: “Why do we always discuss second-order and third-order issues but never the bigger issues? We in this country have never had a big, real discussion about the level of net immigration, legal and illegal. It’s the biggest change we’ve had over the last 30 years but we’ve never put it to the electorate, heard their views or explained to them the policy that we’ve followed”. I thought today, as I listened to the Minister’s introduction, that that is also true of this Bill. It is an important part of immigration policy but not the biggest. The biggest issue is what is in the 2019 manifesto, which is bringing down the net level of immigration. There is no context for the Bill in that way. It is difficult politically because it takes in issues such as NHS manpower and social care, but none the less it is where the real issues lie. This is a kind of hectic, frantic displacement activity to distract attention from the big issues.
When I was Permanent Secretary at the Home Office, we had a big discussion in 1996 about world trends in migration. It was a disturbing discussion and we agreed that there was a coming storm. This is not a new problem; Governments have had decades to get ready for it. We discussed all sorts of things, some of which are not relevant now, including whether we should continue to have a border control policy rather than something like the French ID cards, and there are big issues there that need public discussion. Someone mentioned third-party safe countries, but that was dismissed pretty rapidly on the grounds that you would never find a safe country now. So I find myself looking at this Bill thinking, “Here we are, experimenting with that conclusion”.
I am opposed to the Bill. We have heard some very powerful speeches, which I support. I hope that, in Committee—I think we will have to go through Committee; I do not think we will pass the amendment of the noble Lord, Lord German—we can pursue some sort of amendment requiring the Government not to activate the Act until the Supreme Court has certified that Rwanda is safe. I think there is scope there for some sort of deal—you can phrase that as you want.
In the meantime, I have a couple of questions for the Minister. First, would he please give a reply to my noble friend Lord Kerr about why exactly the Rwanda option is considered likely to be an effective deterrent? What is going on in the mind of the imaginary immigrant who, at the channel, suddenly changes his mind and stays in France? What is it that is putting him or her off—after they have been through mountain ranges, planes, wars, famine, deserts and goodness knows what—taking one small final risk before they get to their desired objective, the UK? What is it about the Rwanda option that is likely to put them off? We need to get inside the mind of the imaginary immigrant.
Secondly, I am deeply disturbed by the constitutional implications of the Bill, which have been set out far more adequately by others. I would like to know the limits in the Government’s mind of this new power—I think it is new—to declare fact by legislation, even where the facts are untrue. For instance, would it allow the Government to pass or propose a Bill stating that every returning officer in a general election must conclusively treat every vote for the Labour candidate as a vote for the Conservative candidate, or the other way around if you wish? You cannot use legislation to tell lies, and this is a lie in the sense that nobody knows whether or not Rwanda is safe. This is a very worrying innovation.
Finally, does the Minister think that Ministers should be able to instruct civil servants not to comply with international law? I would like answers to those three questions.
Lord Wolfson of Tredegar (Con)
My Lords, it is a great pleasure to follow the noble Lord, Lord Wilson of Dinton, with his vast experience of Whitehall and the formation of policy.
I want to concentrate on Clause 5 and a legal issue at the very heart of the Bill: whether a Minister should be able to refuse to abide by an interim order of the European Court of Human Rights, made under its Rule 39 procedure. The president of the Strasbourg court, in a media interview given only last week, asserted that her court has the power to grant interim relief and that member states have an obligation to comply. However, the contrary position had been powerfully presented only the previous evening by Professor Ekins, giving the 37th Atkin lecture in this city.
The present Rule 39 dates from 2013 and provides that the full court or a single duty judge may
“indicate to the parties any interim measure which it considers should be adopted”.
That does not sound like a legal obligation, and that is for a simple reason. The 1950 convention contains no provision for a single judge, or even the full court, to grant interim relief to any person. That omission was not an oversight. There was an attempt in 1950 to give the court such a power, and that attempt was rejected. On every subsequent attempt to give the court that power, the member states have refused.
That is not to say, as the noble Lord, Lord Faulks, said, that a power to grant interim orders might not be useful, sensible or desirable, but that is not the question. The question is whether the court has that power, and the member states repeatedly decided that it should not. For a time, the Strasbourg court agreed that it did not have a power to grant interim relief. It so ruled authoritatively in 1991, and ruled to the same effect a decade later, in 2001. However, in 2005, the Strasbourg court performed a jurisdictional U-turn. It held that, by failing to comply with an interim measure ordered under Rule 39 to prevent a deportation, Turkey had breached Article 34—that is the article which provides that member states must not hinder the right of an individual to access the court. Perhaps that case was rightly decided on its own facts, although I doubt it. If the deportation was a breach of Article 34 then whether there was a breach of Rule 39 as well does not really make any difference. That decision became the slender basis for the court to assert, in a later case in 2009, that any non-compliance with a Rule 39 order necessarily also amounted to a breach of the convention.
Why the change of heart by the court in 2005? It appears to be what one might call judicial envy: the International Court of Justice had held a few years earlier, in 2001, that states had to abide by its interim measures, and it seems that the ECHR court considered that what was good enough for The Hague was also good for Strasbourg. But there is a critical difference. Article 41 of the statute establishing the International Court of Justice specifically provides for “provisional measures”. In other words, the ICJ statute contains in terms precisely the power that the member states had consistently refused to agree to give to the Strasbourg court.
As the noble Lord, Lord Faulks, explained, there are also severe procedural problems with the approach that the Strasbourg court takes. Those problems are not my concern this evening; I welcome the fact that the Strasbourg court is trying to address those procedural problems. But none of that addresses the underlying jurisprudential issue, which is whether the Strasbourg court has the legal power to issue binding interim relief in the first place.
In the absence of locating that power in the convention itself, it has been suggested that, over the years, state practice has given the court this power. I do not find that argument persuasive. I do not have the time now, but that state practice is neither uniform nor consistent. The details are set out between pages 35 and 41 of Professor Ekins’s paper on this topic for Policy Exchange, which repays reading in any event. I am sure that we will come back to it in Committee.
So far as the UK specifically is concerned, we have said, rightly and for good political reasons, that compliance with Rule 39 orders is our usual policy. All other things being equal, so it should be. But accepting compliance as our usual policy is quite different from accepting a Rule 39 direction as a legal obligation, which we should not do, because it is not.
Lord Purvis of Tweed (LD)
My Lords, my noble friends Lord German and Lord Thomas told us that we have a Bill in front of us, which the Government are asking us to support, which compels decision-makers to treat as fact things that have already been found to be false and to bar courts and tribunals from considering any evidence or arguments to the contrary. I have listened carefully to every contribution in this debate, and they have not been contradicted.
In addition, these Benches cannot support a Bill which states in Clause 1 that both Houses of Parliament consider a country to be safe when, actually, one House of Parliament last week conclusively stated we cannot yet make that judgment and refused to do so. It is not only that we are asked to consider alternative facts for Rwanda; we are now being asked to legislate a false record of our own votes. But we are not alone in saying that we cannot make that judgment about Rwanda: so did the Supreme Court; as we heard, so did the Home Office officials who, since the Government said that Rwanda should only be considered a safe country, have themselves determined that Rwanda is unsafe for four of its nationals to whom we have given asylum, while the Home Office was drafting this Bill to determine Rwanda safe. I would be grateful if the Minister could confirm that that is indeed the case.
The Government have said that the treaty addresses the Supreme Court’s concerns but are now asking us to bar the Supreme Court from judging whether it does. These Benches reject that. The noble and learned Lord, Lord Stewart, said at the start that the Supreme Court used out-of-date information when it came to its judgment, but we know, and he knows, that the Supreme Court gave considerable weight to the UNHCR, which just this month concluded again that the UK-Rwanda arrangements are
“incompatible with the letter and spirit of the 1951 Convention”.
The Bingham Centre for the Rule of Law told us that, fundamentally,
“Safety is a factual question which cannot be conclusively determined in advance, for all cases, by the legislature. Enacting a conclusive deeming of Rwanda as a safe country is a legislative usurpation of the judicial function”.
We agree.
Some in this debate, such as the noble Lords, Lord Dobbs and Lord Hannan, have said that they have to support the Bill because, alas, Opposition parties are not in power. There is a ready solution to their quandary, of course.
An alternative argument from the Government Benches came from the noble Baroness, Lady Goldie, who said that the Bill is “the only thing to do”. The noble Lord, Lord Kerr, quoted Lewis Carroll. Lewis Carroll also said, “If you don’t know where you’re going, any road will get you there”. I say with great respect to my friend Annabel—the noble Baroness, Lady Goldie—that we are not going to follow her on that road.
Some noble Lords raised the constitutional issue of our voting today, or
“defying the will of the people”,
as the Prime Minister said. Let us deal with the “will of the people” thing first. This is where the Prime Minister has determined that any piece of his legislation emanating from the Government, a government Bill, is “the will of the people” and therefore must be passed. He said it to us about this one, and we have had many Ministers and advisers from the Commons at the Bar just to make sure that we were aware of it. However, there is a wee flaw in this argument as, according to the Hansard Society, in the last Session of Parliament the Government themselves defied the will of the people by withdrawing a whopping 10% of their own legislative programme, or six Bills, four of which had actually been in the 2022 Queen’s Speech. So, if the Government themselves are defiant of the will of the people to such an extent, we are being modest in suggesting that just this one should be withdrawn.
The second argument concerns voting on Second Reading. This is unusual, of course, as my noble friend Lord German said, but it is not unheard of. In 2000, the Criminal Justice Bill was rejected at Second Reading in this House. On that occasion, my noble friends joined the Conservatives and some Cross-Bench Peers in voting the Bill down at Second Reading in this House. Then, as my noble friend indicated, in 2011 on the Health and Social Care Bill, Labour voted against a Bill that had just passed Second Reading in the House of Commons. I respect him greatly—I am not sure whether he is in his place—but the noble Lord, Lord Grocott, intervened on my noble friend to complain about that process, forgetting that he voted in that Division, as did five of his colleagues on the Labour Benches who have spoken this evening. All three parties and many on the Cross Benches—including 20 on that Bill, I say to my friend the noble Earl, Lord Kinnoull—have sincerely made a decision to vote on Second Reading, so that really is not an issue for this evening.
Others have referred to the Salisbury/Addison convention. I am not an expert like the noble Lord, Lord Lisvane, but even if the Bill got close to being anything like what was in the 2019 Government manifesto, these Benches have never adhered to that convention. Since the Bill was not in the 2019 Conservative manifesto, it might be worth reminding ourselves briefly, regarding immigration, what was. Page 20 had an
“Australian-style points-based immigration system”,
with the commitment that
“There will be fewer lower-skilled migrants and overall numbers will come down”.
The result? The ONS estimates that net migration to the UK was 745,000 in 2022, up from 184,000 in 2019, with overall numbers at a record high. The noble Lord, Lord Frost, was in Cabinet then, and I and others feel his pain and regret for failure—we felt that in his contribution, but he admitted it, so that is to be welcomed. Also on page 20 was the brightest-and-best visa. Remember that? That was when the UK was going to be catnip for the world’s global talent through the global talent visa. The result? Three applications in two years.
Page 21 is where it gets very worrying:
“We are committed to the Windrush compensation scheme”.
It has taken my noble friend Lady Benjamin and others in this House to be tireless campaigners on this, given the delays and inaction from the Government. The tragic result has been that, four years on, over 50 people have died before receiving recompense.
The overall record on the wider management of immigration is not much better. Actually, it is worse. According to Home Office figures, in 2013 the then Government returned 21,000 migrants voluntarily, but this fell to 4,000 in 2021. For those who had no right to be in the UK, the Government in 2012 returned 15,000 people, but in 2021 that had shrunk to 2,700.
The noble Lord, Lord Dobbs, said, “We need this Bill because we cannot wait”. Well, on these Benches we have been impatient for action on this for years, and the Government have not acted.
It was not just us complaining: the independent review by the Chief Inspector of Borders and Immigration in 2019 warned of consequences of poor data sharing and low morale among Home Office staff. The warnings were unheeded. I make a personal plea this evening: if we heard a contribution this evening with a warning we should heed, it was that from the noble Lord, Lord Hennessy, who is a moral and intellectual guardian of our constitution.
But the Government now seek to present the whole issue as being just for those seeking asylum. We know that there is a much lower share of failed asylum seekers as part of returnees: 8% in 2021, compared with 2010, when it was 23%. So we know that those arriving here, no matter how they arrive, have a higher cause, and the Government have considered that cause and given refuge to them—not under 1951 rules but under 2020 rules.
The noble Baroness, Lady Stowell, said, “The Government have been blocked all along from having this solution”. The Government have had every single migration measure that they wanted passed. It is that side’s issue, not ours.
The Home Office itself shows us that those seeking refuge are a smaller part of the problem than over a decade ago, but we know that returns are a much bigger problem because of the Government’s own mismanagement. Now, £290 million was spent, with a further £78 million on a notice for tender, last autumn—for nothing, as the noble Lord, Lord McDonald, said.
We now have a policy that is meant to be a deterrent, but the noble Lord, Lord Green, was right: how successful will it be if a Government issues a press release in the morning saying that their migration policies are a deterrent but then admit in the afternoon that, without a face-to-face interview, they gave 12,000 refugees right to remain, and potentially right to work, for five years? How that will that be successful?
A perfectly legal and acceptable returns agreement with Albania is working, but the Government have failed to agree other legal return and resettlement agreements. These are the very agreements that the noble Lord, Lord Bellamy, said in the Illegal Migration Bill proceedings would be necessary, and the noble Lord, Lord Hannan, said would be desirable. But the then Minister, the noble Lord, Lord Murray, told me they were not a silver bullet, and we have not seen any progress since.
We are not alone in highlighting the issues. The National Audit Office report on immigration enforcement ended with these words:
“The Department’s success in meeting its mission to prevent illegal immigration through greater compliance with immigration laws is unclear”.
On the Bill,
“the government’s position depends on the treaty to sufficiently conclude there is no risk of Rwanda deviating from its terms”,
but the Supreme Court found that
“obligations which Rwanda has previously breached”
were already contained in its agreements and “in binding international law”. But, as the noble Baroness, Lady Fairhead, said, we do not then set aside the ability to question this in any other treaty that we have signed, including a trade treaty, as we said. Not only that, but we have not made any concerns unchallengeable.
Parliament is being asked to judge Rwanda safe in primary legislation in perpetuity, but the Government’s own admission is that it will be in that situation only when the treaty is fully operational. But the Minister opening this debate was not able to answer the simplest question from the noble Lord, Lord Carlile: when will it be operational? The Minister told us that we must have “no doubt Rwanda is to be a safe country”—but he had plenty of doubt in answering when.
So how will we in Parliament know? We have been told time and time again that treaty making and treaty keeping are prerogative powers, not parliamentary ones. Now, apparently, those are our powers. Given that a key part of the Supreme Court’s ruling was that Rwanda had agreements already in place but did not adhere to them, how will we know?
The Government say it will be through a monitoring committee, but the committee in Article 15 of the treaty has no powers of enforcement: it can simply report to the Joint Committee, which has only advisory powers itself.
Before I close, I will pick up the point about trafficking made by my noble friend Lady Northover and the right reverend Prelate the Bishop of Durham. In 2022, 2,658 people who arrived via irregular routes were successfully referred through the national referral mechanism for report. However, the US State Department’s Trafficking in Persons 2023 report on Rwanda, which the Home Office cites as a gold standard and operates on the basis of, said that the Government of Rwanda
“did not meet the minimum standards in several key areas. The government continued to lack specialized SOPs to adequately screen for trafficking among vulnerable populations and did not refer any victims to services. The government provided support to and coordinated with the March 23 Movement … armed group, which forcibly recruited and used children … Scarce resources, lack of training, limited capacity, and conflation of human trafficking with other crimes hindered law enforcement efforts”.
So we are now expected to send a woman trafficked by a British gang, who arrived undocumented and cannot even claim that she has been trafficked here in the UK, to another country which will somehow operate a system which the TIP report has said does not even meet minimum standards.
Before I close, I will pick up on the point made by the noble Baroness, Lady Verma, about the UK’s characterisation of Rwanda and how we are seeing our relationship through the lens of vilification and ignoring development partnership. Well, it is the Government who say that being sent to Rwanda is a deterrent, not the Opposition. Even before the MoU was agreed, I raised my alarm in this Chamber that the Government had slashed development partnership support from £85 million in 2018 to less than £16 million. Now the financial partnership relationship with the Government of Rwanda is almost exclusively around migration. This relationship with Rwanda is being seen through the Government’s lens, not ours, and I regret that.
I will close by quoting Lord Williams of Mostyn, who opened a debate in 2000 when the House decided to defeat a Government at Second Reading:
“I recognise that most of those who will speak tonight are my personal and professional friends and that they will feel unable to support the Bill … I recognise that their motives are entirely honourable. It is not their motives I question but their conclusions”.—[Official Report, 28/9/2000; col. 961.]
Equally, I do not question any noble Lord’s motives for voting this evening, but these Benches have concluded, for all the reasons that my noble friends and colleagues have given, that this Bill should go no further.
Lord Coaker (Lab)
My Lords, it is a privilege to speak after the noble Lord, Lord Purvis, and join the debate that has been going on through most of the afternoon and well into the evening. I will start with the context of this particular debate. For the avoidance of any doubt, this is not a debate between those who think we should control our borders, have an immigration policy and stop the small boats and all the rest of us who do not think we should have a policy on any of those things. Everyone accepts that there is an issue around all those challenges. The context of this debate is: what is the right way to go about dealing with that particular problem? That is what is before us today. Getting to a point where you are either in favour of stopping the small boats or not will do nothing for the legislative progress that we all wish to make.
I want to say from the outset that we opposed this Bill at every stage in the other place and that we continue to oppose the Bill and the measures contained within it. We do not think they will work, we think they are unaffordable and we think they raise real questions about the rule of law. But let me also say that we as His Majesty’s Opposition also believe that it is not appropriate for us to support and pass a fatal amendment at this stage, so we will not do that. We do not think that is the appropriate way for us to act.
The noble Lord, Lord Purvis, has laid it out, as he is entitled to do, and said that he respects everybody’s opinion. We also respect everybody’s opinion. However, we do not believe that, at this stage, it is appropriate for the House of Lords to do that. We believe that the revision and scrutiny of legislation—the traditional role of the House—is the way forward for us.
I gently say to noble Lords opposite who remind me of the constitutional proprieties with respect to this, that if there is to be a change of Government, I look forward to them failing to block or get in the way of or unnecessarily delay a number of Labour Bills that will be brought before your Lordships, including the re-establishment of employment rights from day one. I look forward to noble Lords welcoming that with open arms, and not wishing to delay it at all, and to voting for votes at 16. However, the serious point is that there is a proper role for this House, and we believe that that is to scrutinise and amend but not to block.
The point of the noble Lord, Lord Baker, is one that we take on board. The opinion we want to change, and the battle and vote we want to win, is at a general election, where we can vote for a change of Government. We will do whatever we can to win that battle.
Here we are again. Some noble Lords, including the noble Baroness, Lady Stowell, have pointed out that this House seems to be getting in the way of immigration legislation, preventing the Government tackling a very real problem. I did not notice that with the Nationality and Borders Act, which passed two years ago. That was supposed to solve the problem and nobody blocked that. We made suggestions, but nobody in this House blocked it. Only last year we had the Illegal Migration Act, and that was supposed to solve all the problems. Nobody blocked that, but we passed amendments, gave opinions and said that things needed to be done. As I have said from this Front Bench for His Majesty’s Opposition, we do not intend to block this particular Bill; that is not our proposition.
However, former Prime Ministers and Home Secretaries, perhaps the current Home Secretary and the current Minister, and certainly the previous Immigration Minister, have all questioned whether the Bill is workable. Robert Jenrick MP said that it is both “legally flawed” and “operationally flawed”. That is not just anybody; that is a senior member of the governing party, who has got other aspirations, should it work out for him.
This raises a number of questions. Some £400 million has been spent and not a single asylum seeker has been sent to Rwanda. What is really remarkable is that the Rwandan Government say that they will take a couple of hundred asylum seekers. What on earth are we doing spending all this time debating Rwanda when it will be dealing with a couple of hundred of asylum seekers? Perhaps the Minister could tell us what will happen to the other 27,700 that came in small boats in 2023. Where are they going? How does the Rwanda policy work in respect of that? That is if they can find them—we now understand that the Government have lost thousands of them and do not know where they are. The Rwanda Bill we have here really beggars belief.
The noble Lord, Lord Clarke, the noble Viscount, Lord Hailsham, and other noble Lords made the point that it is quite astonishing to read in Clause 2 that:
“Every decision-maker must conclusively treat the Republic of Rwanda as a safe country”.
As the noble Viscount, Lord Hailsham, said, in questioning the noble Lord, Lord Faulks—who may be right; I am not a lawyer—if the Supreme Court makes a finding of fact, seeking to change that by legislation does not seem to be constitutionally the right way forward. As other noble Lords have said, what else could be changed because a finding of fact by the Supreme Court was found not to be consistent with what you wanted it to say?
It is made even more worrying and troubling—and this is a Conservative Government; the party of law and order—by Clause 2(3), which tells us that that any court must ignore any appeal that is brought forward
“on the grounds that the Republic of Rwanda is not a safe country”.
That is quite astonishing; our own courts cannot determine the rights and wrongs of legislation under this Bill. Even a Government under Margaret Thatcher might have found it difficult to believe that some of this was actually happening.
Various clauses disapply the rule of international law and provide for the disapplication of the European Court of Human rights and various other international bodies. There are some who say that it does not matter that we stand accused of breaking international law, or that the UNHCR says that the Rwanda Bill and the treaty are inconsistent with the refugee convention, the European Court of Human Rights and international law. We are told by some that this is of no consequence. However, many noble Lords have talked about the importance of our global standing and international reputation. I think that matters. If the Government are saying that it does not matter, and that the public do not care, I am quite happy to go to the country and argue that Britain’s place in the world matters, that our global reputation matters, and that our abidance by and adherence to international law matters.
If we do not think international law matters, what are we doing in Ukraine? What are we doing in the Red Sea with respect to the Houthis? What are we doing with respect to China and its policies on Taiwan and the South Pacific? If international law and conventions do not matter, and you can disregard them when you want, what does that say for the international rules-based order? Our country, of which we are all proud, is a country that should be and is right at the forefront of standing up for that, as a senior member of the United Nations, NATO and so on. I say that that does matter. Some say that that is irrelevant to the British people and to public opinion; I say that it is not.
There will be amendments. We read that the Government have included in Clause 1(3) many of the obligations that they expect the Government of Rwanda to take up to ensure that it is a safe country. However, it says that Rwanda has
“agreed to fulfil the following obligations.”
As noble Lord and noble Baroness after noble Lord and noble Baroness have said in this debate, we have no way of knowing whether these obligations are actually going to be fulfilled. The Bill says that they will be but we do not know. It will be an act of faith; it will be a belief that it is going to happen. We hope it will happen, but there is no mechanism in the Bill by which we can ensure that we hold the Rwandan Government to account and know that the things that we want to happen will happen. I suspect that the amendments will seek to address that particular point and ask whether there is some way to make a reality of the various things that have been put in the Bill.
As I said, there is no difference between any of us in wanting to deal with this problem. The Labour Party is continually goaded on the basis that, if His Majesty’s Government continually say that we have no plan, then sooner or later people will think there is no plan. It may be that noble Lords do not agree with what we are saying, but time after time my noble friend Lady Smith and I, and many others, have said that there should be tough measures to tackle the criminal gangs and that we should establish new agreements with other countries. We believe in the establishment of safe and legal routes. We believe that the asylum system and process should be speeded up, so that applications are dealt with speedily and effectively. We also believe that it is necessary, as the most reverend Primate continually points out, for problems to be dealt with at source, through a new way of looking at this together, so that there is a sharing of the problem.
That is the plan. If people do not agree with it, they should argue about it and say it will not work, in the same way that we say the Government’s plan will not work. But I am quite happy to go and put before people that five-point plan as a better way of dealing with those problems than what the Government have laid before us.
We need to ensure that, above all, we have a system that is built on our traditions of fairness, openness and recognising that this issue needs co-operation and sharing, not the offloading of responsibility to others. It also needs to be a system rooted in a system of international law and respect—a system our great country helped to establish. The Bill deserves to be amended to protect those principles as far as possible.
The Government will get their Bill, as I say, even if amended. But the reward will be not only an unworkable system but one that comes with a cost to our international standing and reputation. Now is not the time for us to panic or ditch our principles but to put forward an asylum system and an immigration and asylum law that will work and be based on the principles of which this country has always been proud.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I am grateful to all noble Lords who have spoken today and shared their thoughts on this legislation. We have heard many thoughtful speeches from many noble Lords, but I welcome particularly the valued insights of my noble friends Lady Goldie, Lady Verma, Lord Wolfson, Lord Dobbs, Lord Horam and Lord Murray. It is clear from across the Benches that there is common ground in needing to find a solution to the challenges we face. Just for the record, of course I agree with the most reverend Primate the Archbishop of Canterbury on the worth of individuals.
Stopping illegal migration is an important issue for both the public and the Government. Parliament and the British people want an end to illegal migration, as my noble friend Lady Stowell powerfully argued; therefore, we need a deterrent. As noble Lords will have heard me say last week, we made progress towards stopping the boats but we must do more to break the business model of the criminal gangs and deter illegal migrants. I say to the noble Lord, Lord Kerr, that there is evidence of deterrence—and that it works. I am also grateful to my noble friends Lord Udny-Lister and Lord Horam for reminding us of Albania and the Australian example.
The dangerous channel crossings are often made by young, fit men in search of better life opportunities. Many of those have travelled through safe countries to reach the UK, as my noble friend Lord Hannan set out, and they have paid substantial amounts of money to the criminal gangs to facilitate their journey. As my noble friend Lady Goldie highlighted, these criminal gangs could not care less about the safety of migrants; they care only about the money. I think noble Lords are in agreement that we cannot let this continue.
The most reverend Primate the Archbishop of Canterbury and other noble Lords were right to place the Bill in its moral context, but proceeding with it is the moral course, as my noble friend Lord Blackwell powerfully noted. We must put a stop to the dangerous channel crossings that are putting lives at risk and to this mass trafficking of people in order to save lives. That is the humane thing to do, and it is the fair thing to do, as my noble friend Lady Verma argued.
By delivering our key partnership, relocating those with no right to be in the UK to Rwanda and not allowing them to stay in the UK, we will deter people from making these journeys and we will save those lives. We also need to ensure that we are meeting our international obligations, so the treaty the Home Secretary signed in December last year sets out to Parliament and the courts why Rwanda is, and will remain, safe for those relocated there. The Bill makes it unambiguously clear that Rwanda is safe and will prevent the courts second-guessing Parliament’s assessments.
The Prime Minister has been clear that he will not let a foreign court block flights. We simply cannot let Strasbourg dictate our border security and stop us establishing a deterrent.
I turn to the matters raised in the debate, including the points addressed in the amendment moved by the noble Lord, Lord German. A number of noble Lords asked why the legislation seeks to confirm that Rwanda is safe when the treaty simply sets out the aspirations of what should happen, and the measures are not in place. The Supreme Court recognised that changes may be delivered in future which could address the conclusions it came to. We have been working closely with Rwanda on these changes. The partnership with Rwanda is now set out in a new treaty, binding in international law, with specific provisions to address the court’s findings.
Since the evidential position considered by the UK domestic courts in summer 2022, we have obtained further specific information, evidence and assurances from the Government of Rwanda explicitly to address the challenges raised by the claimants and the UNHCR in the litigation, and the findings of the Supreme Court, following its judgment in November. This primarily takes the form of detailed standard operating procedures, reviews of contracts for services that the Government of Rwanda have procured—for example, with accommodation, facilities and medical insurance companies—and new and revised training programmes.
The noble Lords, Lord Purvis and Lord Coaker, mentioned this all in the context of the UNHCR. Rwanda has successfully hosted over 135,000 refugees and asylum seekers in collaboration with the UNHCR and other organisations. That is not including the nearly 2,000 supported in Rwanda by the emergency transit mechanism to evacuate to safety refugees and asylum seekers trapped in or fleeing civil war in Libya. That is also supported by the EU, which will support the operation of the ETM until 2026, and the EU announced a further €22 million support package for it. As recently as December 2023, the UNHCR evacuated 153 asylum seekers from Libya to Rwanda, and the European ambassador to Rwanda described the scheme as:
“A crucial life-saving initiative to evacuate people facing major threats and inhumane conditions in Libya to safety in Rwanda, It is a significant example of African solidarity and of partnership with the European Union. We are grateful to the Government of Rwanda for hosting these men, women and children”.
Regarding our agreement with Rwanda, we have taken crucial steps forward to respond to the Supreme Court findings, which recognise that changes could be delivered to address its conclusions. Both the Court of Appeal and the High Court found that the principle of relocating individuals to safer countries for their protection claims to be assessed was consistent with the UK’s obligations under the refugee convention, and the Supreme Court did not disturb this.
It is imperative that we continue to work at pace to stop the boats, save lives and break the business models of the evil criminal gangs. The fundamental accusation that Rwanda is incapable of making good decisions and is somehow not committed to this partnership is wrong, as my noble friend Lady Verma pointed out. I disagree with that. Rwandans, perhaps more than most, understand the importance of providing protection to those needing it. At this point, I say to the noble Lord, Lord Coaker, that the monitoring of all this is of course dealt with by the treaty, which we debated at some length last week.
I turn to the early intervention from the noble Lord, Lord Carlile, on the Motion set down by this House not to ratify the treaty. Your Lordships will be aware that a resolution made in this House on the treaty does not necessarily stop its progress. The International Agreements Committee report did not fundamentally find anything objectionable in the treaty itself. The report was about implementation, not any flaws in the treaty. The treaty will therefore follow the usual process with regard to scrutiny and ratification. Ultimately, the Minister responsible can decide to issue a statement declaring that the treaty should be ratified in any event, and the Home Secretary will confirm the Government’s position in due course.
The noble Lords, Lord Carlile and Lord Purvis, also asked about the timings of the Bill. This reflects an answer I also gave last week. Both the treaty and the Bill need to progress their respective paths through Parliament in the usual way before they can be ratified or receive royal assent respectively. Rwanda will also need to adjust its legislation and ratify the treaty on its side. Once these things have happened, the Bill and the treaty will be operable.
The noble Lords, Lord Ponsonby and Lord German, asked about the Government’s safe and legal routes. The UK is a generous country. We are proud of that fact, and we are proud of the fact that we have helped so many refugees to safety. The Government have made it clear that we will continue to provide sanctuary to those most in need, but we can act only within our capabilities. I say to the noble Lord, Lord Paddick, that it is not about “I’m all right, Jack”; it is about capability and capacity. While the compassion of the UK is unlimited, our capacity is not. Local authorities have played a vital role in delivery of our safe and legal routes, but they are feeling the pressures caused by both legal and illegal migration. We can bring people over on safe and legal routes only when local authorities are able to receive them. We remain committed to looking at new or expanded safe and legal routes to the UK for those most vulnerable, but only once we have drastically reduced the unacceptable number of illegal, dangerous and simply unnecessary small boat crossings, which are putting a huge amount of pressure on our public services.
Lord Blunkett (Lab)
Perhaps the Minister can answer the simple question which I put early in this debate. If that is true, why do the Government not accept that those who are accorded refugee status through the process that this Government wish to apply in Rwanda should be allowed back into the United Kingdom?
Lord Sharpe of Epsom (Con)
My Lords, I will come back to that.
On 20 October 2023, the Home Office launched the consultation on the cap on safe and legal routes, to understand local authority capacity. This consultation closed on 9 January 2024. Home Office officials are currently reviewing those responses and are planning further engagement with the respondents through a series of regional dialogues to validate responses and to determine a capacity estimate. We will produce a summary of the consultation by the spring and, in summer 2024, the Government will lay a statutory instrument in Parliament which will then need to be debated and voted on, before the cap comes into force in 2025. Therefore, in answer to the noble Lord, Lord Blunkett, we have to wait for all those things to take effect. I have no doubt that this matter will be up for debate again after 2025.
The noble Baronesses, Lady Whitaker and Lady Brinton, asked how we can deem Rwanda to be safe if we are granting Rwandan nationals refugee status in the UK. Rwanda is a safe country, which is what this Bill asserts. The meaning of a “safe country” is set out in Clause 1(5). However, our obligation when an asylum claim is lawfully lodged and admitted to the UK asylum process for consideration is to carry out an individualised assessment of a person’s particular circumstances. If, after that assessment, there is found to be a reason why a person, based on these individual circumstances, cannot be returned to their country of origin, then it is correct that we grant them protection. It is important to stress that people from many different nationalities apply for asylum in the UK and this includes—
Baroness Kennedy of The Shaws (Lab)
My Lords, where, under Clause 4, an individual is seeking the court’s ruling on whether their individual circumstances might give them a reason to not be sent to Rwanda, might that be because they are able to argue that “It may generally be safe but it is not safe for me”? Will they be able to argue that, because they are homosexual or ill, it is not safe for them?
Lord Sharpe of Epsom (Con)
My Lords, quoting from the Bill in answer to the noble Baroness, it is
“the person in question, based on compelling evidence relating specifically to the person’s particular individual circumstances (rather than on the grounds that the Republic of Rwanda is not a safe country in general)”.
That is pretty straightforward. It is important to stress that people from many—
Baroness Whitaker (Lab)
My Lords, I asked what the grounds were for people from Rwanda being given asylum here. What was their well-grounded fear of persecution about?
Lord Sharpe of Epsom (Con)
My Lords, each individual case is different. I do not know the particular circumstances.
It is important to stress that people from many different nationalities apply for asylum in the UK. This includes nationals from some of our closest European neighbours and other safe countries around the world. That is why there are a small number of cases where we have granted asylum to individuals from countries that we would otherwise consider safe. This is a reflection of our system working. An individual claim is not a reflection of the country as a whole. This process also reflects the safeguards which the Bill provides to individuals in Clause 4, which I have just read out. Each case will be considered on its individual merits by caseworkers who receive extensive training. All available evidence is carefully and sensitively considered in the light of published country information, but I cannot comment on the specifics of individual cases.
The right reverend Prelate the Bishop of London and the noble Lord, Lord Blunkett, asked what support will be available for those who are particularly vulnerable. Rwandan officials will have due regard to the psychological and physical signs of vulnerability of all relocated persons at any stage of the application and integration process. Screening interviews to identify vulnerabilities will be conducted by protection officers in Rwanda who have received the relevant training and are equipped to handle competently safeguarding referrals. Interpreters will be available as required to ensure that relocated individuals can make their needs known. All interviews will be conducted with sensitivity for the individual’s well-being.
The Government of Rwanda have processes in place to safeguard relocated individuals with a range of vulnerabilities, including those concerning mental health, gender-based violence and addiction. All relocated individuals will receive appropriate protection and assistance according to their needs, including referral to specialist services, as appropriate, to protect their welfare.
Article 13 of the treaty makes specific provision that Rwanda will have regard to information provided about a relocated individual relating to any special needs that may arise as a result of their being a victim of modern slavery or human trafficking and shall take all necessary steps to ensure that these needs are accommodated.
Lord Purvis of Tweed (LD)
How will they know? The Illegal Migration Act prevents someone who may well have been trafficked from even starting the process of claiming that they have been trafficked here, so how will the Rwandans know? We are not collecting that information.
Lord Sharpe of Epsom (Con)
My Lords, as I have just said, the treaty makes specific provision that Rwanda will have regard to information provided about a relocated individual by the United Kingdom.
Lord Purvis of Tweed (LD)
I am grateful, but that is prohibited in the Illegal Migration Act.
Lord Sharpe of Epsom (Con)
My Lords, I will have to write to the noble Lord on that very specific point.
These are also detailed in the standard operating procedures as part of the evidence pack released on 11 January in support of the Bill. Furthermore, the UK is providing additional expertise to support the development of Rwanda’s capacity to safeguard vulnerable persons.
The noble Lord, Lord Cashman, and the noble and learned Lord, Lord Etherton, asked about the treatment of LGBT persons, if sent to Rwanda. Rwandan legal protection for LGBT rights is generally considered more progressive than that of neighbouring countries. The constitution of Rwanda includes a broad prohibition of discrimination and does not criminalise or discriminate against sexual orientation in law or policy. As set out in paragraph 36 of the Government’s published policy statement, the constitution of Rwanda prohibits, at article 16, discrimination of any kind based on, among other things, ethnic origin, family or ancestry, clan, skin colour or race, sex, region, economic categories, religion or faith, opinion, fortune, cultural differences, language, economic status, and physical or mental disability.
The noble Baroness, Lady Brinton, asked about unaccompanied children deemed to be adults being relocated to Rwanda. As the treaty sets out in Article 3(4), we will not seek to relocate unaccompanied individuals who are deemed to be under 18 to Rwanda. Any unaccompanied individual who, subsequent to relocation, is deemed by a court or tribunal in the UK to either be under 18 or to be treated temporarily as being under 18, shall be returned to the UK.
Lord Carlile of Berriew (CB)
I am sure the Minister wants to be accurate. Is it not the case that he should recognise that homosexuality is illegal in Rwanda? The penal code criminalises same-sex sexual activity and individuals found guilty of engaging in such activity can face imprisonment. If that is right, is Rwanda really a safe country?
Lord Sharpe of Epsom (Con)
My Lords, I am afraid I am not familiar with that part. However, I have just read out the relevant clause in the Bill that deals with specific individual circumstances.
Any person who has been relocated to Rwanda but who subsequently receives a court or tribunal order from the UK that they must be treated as a minor, and are therefore a child who is in Rwanda without a parent or guardian, shall be provided with suitable accommodation and support that meets all the requirements for families with children set out within the treaty under paragraphs 1.1 and 1.2.2 of Part 1 of Annex A to the treaty until the child is returned to the UK.
With regard to concerns about the impacts of the policy on children treated as adults, I reassure noble Lords that there are safeguards in place to prevent that happening. The Home Office will treat an individual claiming to be a child as an adult without conducting further inquiries only if 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 that they are “significantly over 18 years” of age. 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 complete could the individual then be treated as an adult if found to be so.
Many noble Lords have asked whether this Bill will comply with international law. Its provisions are consistent with our international law obligations. They retain rights challenge based on compelling evidence of serious and irreversible harm in specific individual circumstances, which will arise in narrow circumstances.
In response to the points made by the noble Lords, Lord German and Lord Howarth, I say that the Bill makes it clear that it is only for a Minister of the Crown to determine whether to comply with an interim measure of the Strasbourg court. I am grateful to my noble friend Lord Wolfson and the noble Lord, Lord Faulks, for their comments on this.
I will not get drawn into speculation about hypothetical scenarios, but the internationally binding treaty agreed between the UK and Rwanda contains binding commitments to ensure that the scheme is compliant with international law, including the ECHR. It also makes it clear that domestic courts may not have regard to the existence of any interim measures when considering any domestic application flowing from a decision to relocate a person to Rwanda in accordance with the treaty.
The Permanent Secretary for the Home Office has confirmed that if we receive a Rule 39, instead of deferring removal immediately—as the guidance currently indicates—officials will refer the Rule 39 to the Minister for an immediate decision. To answer the noble Lord, Lord Wilson, I say that the Cabinet Office has confirmed that it is the responsibility of civil servants under the Civil Service Code to deliver that decision. Consideration will be on a case-by-case basis depending on the facts. I also remind noble Lords that, as the Government have set out, both the UK and Rwanda are committed to making this partnership work.
As my noble friend Lord Murray set out, the Section 19(1)(b) statement is not specific to one provision; it applies to the Bill as a whole. A statement under Section 19(1)(b) makes it clear, in this instance, that the Home Secretary is not able to state now that the Bill’s provisions are more likely than not compatible with convention rights. There is nothing improper or unprecedented about pursuing Bills with a Section 19(1)(b) statement. It does not mean that the Bill is unlawful or that the Government will necessarily lose any legal challenges on human rights grounds. Parliament clearly intended Section 19(1)(b) to be used as it is included in the Human Rights Act 1998. It is an important measure to safeguard parliamentary sovereignty. Section 19(1)(b) statements have been used by Governments of all stripes before. For example, the Bill that became the Communications Act 2003 included a provision banning paid political advertising on TV. The use in this case recognises the novel and ambitious approach taken by this Bill, and the fact there is room for argument both ways. We are testing the limits but remain satisfied that this Bill is compatible with international law.
The Bill allows decision-makers and the courts to consider claims that Rwanda is unsafe for a person due to their particular individual circumstances, as we have discussed. As the right reverend Prelate the Bishop of London noted, the Bill does not disapply Section 4 on declaration of incompatibility, as this is the only substantive remedy against the conclusive presumption that Rwanda is safe. Retaining DOIs allows the courts to respond to changing circumstances and for this question to be brought back for parliamentary consideration. Of course, the final say on the matter will remain with Parliament and the Government because Section 4(6) of the Human Rights Act makes it clear that a declaration cannot affect the operation or validity of domestic legislation.
The effect of retaining this Section 4 is therefore beneficial in limiting domestic and international legal challenge and, crucially, does not undermine the operation of the Bill, and in doing so reaffirms parliamentary sovereignty. The court could not grant interim relief on the basis of a DOI having been granted because of the clear and unambiguous language of Section 4(6) of the Human Rights Act.
The noble Baroness, Lady O’Loan, asked about the impact of the Bill in Northern Ireland. The Bill will apply fully in Northern Ireland in the same way as it does in the rest of the United Kingdom. This is explicit in the Bill and will always be the case, reflecting that immigration policy is a UK-wide matter. Nothing in the Windsor Framework, including Article 2, or the trade continuity agreement affects this. The Bill’s provisions do not diminish the rights and commitments we have made on the convention on human rights in the Belfast agreement. The Government remain fully committed to that agreement in all its parts. The Government are unshakable in their commitment to the Belfast/Good Friday agreement, and the Bill does not undermine this.
Baroness O'Loan (CB)
Has the noble Lord actually read the Northern Ireland Human Rights Commission’s advice on this matter? Has he taken cognisance of the number of measures he lists which are affected, and the fact it is an obligation under Article 2 of the Windsor Framework?
Lord Sharpe of Epsom (Con)
As I have just set out to the noble Baroness, the Government takes a different view to those opinions.
The noble Lord, Lord Ponsonby, asked about the costs of this partnership. The spend on the MEDP with Rwanda so far is £240 million. Further funding will be provided to Rwanda once the partnership is operational. Costs and payments will depend on the number of people relocated, the timing of when this happens and the outcomes of individual cases. Spending will continue to be reported as part of annual Home Office reports and accounts in the usual way. Those focusing solely on the costs of this partnership are missing the point. It is incredibly frustrating for the British people and the taxpayer to spend billions to house illegal migrants in hotels. The daily cost of hotels for migrants is £8 million and the cost of the UK’s asylum system has roughly doubled in the last year; it now stands at nearly £4 billion. Criminal smuggling gangs are continuing to turn a profit using small boats. We must bring an end to this.
The Government recognise the extraordinary level of interest in this partnership, and we take our responsibility to be transparent seriously. However, that must be balanced with the nuances of managing our international relationships and respecting commercial sensitivities. We have said we will do what it takes to curb illegal migration and stop the boats. As we explore avenues of doing this, it would be against our direct interests to release all financial information. Costs and payments of course will depend on the number of people relocated, the timing of when this happens, and the outcomes of individual cases. Every individual’s needs are different, and funding will only be provided while an individual remains in Rwanda. Spending will be reported as part of the annual Home Office reports and accounts in the usual way.
I am getting to the end. Noble Lords have asked whether this Bill will, by disapplying international law, have a knock-on impact on wider international treaties and potentially worsen the UK’s relationship with the ECHR. We have a long and diverse history of freedoms in this country, and we are proud of the UK’s heritage and culture on human rights and democracy. But no country has all the answers to global human rights challenges. We continue to engage others about our ongoing journey on these issues—a point made by many noble Lords and emphasised by my noble friend the Foreign Secretary on 16 January.
I am again thankful for all the contributions made to today’s debate. It is absolutely essential that we tackle illegal migration, bring an end to such dangerous channel crossings and save lives. To the noble Lord, Lord Coaker, I say that the integrity of our border also matters. I therefore urge noble Lords to support the Government in delivering the partnership with Rwanda, and our wider plans to take control of our borders and stop the boats. These are difficult choices to make with regards to tackling this issue. That is what this Government are doing, and we will continue to do so. The Bill will enable us to stop the boats, and I commend it to the House. I invite noble Lords to reject the amendment standing in the name of the noble Lord, Lord German.
Lord German (LD)
My Lords, I have just read a report of the debate from a senior broadcast journalist. He says that the majority of Peers in this House regard this Bill as an “unholy abomination”. Therefore, in order to sort this matter out, I beg leave to test the opinion of the House.
Lord Sharpe of Epsom
That the bill be committed to a Committee of the Whole House.