House of Lords
Local Planning Authorities: Staffing
(10 months, 1 week ago)
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Lord Crisp
To ask His Majesty’s Government what assessment they have made of the levels of staffing in planning departments in local planning authorities.
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Penn) (Con)
The Government regularly engage with local authorities. We understand that they, as well as the wider planning sector, face capacity and capability challenges that have resulted in delays, including in the processing of planning applications. To address this, we have developed a comprehensive planning capability and capacity programme which provides direct support, delivers funding to local government, provides upskilling opportunities for existing planners and further develops the future pipeline into the profession.
Lord Crisp (CB)
My Lords, I thank the Minister for that reply. I would just raise two points with her. First, there may be additional funding coming into the system, but is she confident that this will lead to an increase in staffing capacity? Even if it does, given that staffing has reduced by 25% in the last nine years, does she feel that staffing of planning departments is adequate to not only deal with planning applications but with the new responsibilities around biodiversity net gain and providing local plans?
Baroness Penn (Con)
My Lords, we think that the staffing in local planning authorities needs to increase. We have provided several routes for that to happen, including the planning skills delivery fund, which is worth £29 million. In December, we announced the first 180 local authorities to get funding from that, and there will be further allocations this spring. We have also increased planning fees by 25%, and up to 30% for major applications, and made provision for that to be indexed in future years. The pipeline is not just about funding; it is also about skills, which is why we have put in place support for master’s programmes and an improved pipeline for getting people into planning and helping them upskill in the specific skills the noble Lord mentioned once they are there.
Viscount Hailsham (Con)
My Lords, I welcome what my noble friend has just said. Does she accept—I am sure she does—that shortages in planning departments and changes in planning skills are causing considerable delays, and that that is unfair to claimants who are seeking planning consent and can often cause considerable expense to them?
Baroness Penn (Con)
My Lords, we recognise this as a source of delays. In addition to the planning skills delivery fund, we have put in place the “planning super-squad”, backed by £13 million of funding. It deploys teams of specialists into planning authorities to accelerate the delivery of homes and developments.
Lord Watts (Lab)
My Lords, it certainly will not wash that, after 13 years of cuts, including to these departments, the Government then in the last two years start to increase it slightly. It will not compensate anything near what has been lost to local authorities in their planning and other departments.
Baroness Penn (Con)
My Lords, one of the things we have done in our recent changes is make provision for the indexing of planning fees going forward. That will ensure not only that local authorities will benefit from the substantial increase in fees that were put in place in December this year but that, on an annual basis, the value of those fees will be retained in future.
Baroness Pinnock (LD)
My Lords, the Minister mentioned the increase in planning fees, and she is quite right, but when the Government made that increase they knew that it would not cover the costs of planning applications. Can the Minister justify why hard-pressed councils have to take funding from other public services to pay for planning applications?
Baroness Penn (Con)
My Lords, we want to proceed in a measured way, providing additional resourcing without disproportionately impacting businesses and householders. Full cost recovery now could result in a substantial rise in some fees, which would adversely impact some developments. Of course, further to the fee increases and the additional specific funding through the planning skills delivery fund, we have made provision for an increase in the settlement to local authorities overall this year.
Baroness Eaton (Con)
Does my noble friend the Minister agree that, if local authorities had the ability to set their own planning fees, they would be in a far better position to recruit more planning officers, compete more efficiently with the private sector and deliver the housing of the future?
Baroness Penn (Con)
My Lords, we do not think that the answer is for local planning authorities to set their own fees. There is no guarantee that additional income would go into planning services or deliver efficiencies, and it would risk a variation in fees between different areas, dissuading home owners and small developers from undertaking development. The substantial increases in fees and the indexing of fees that we have provided for this December will go a long way to supporting local authorities to increase staffing in their planning departments and the skills of those already there.
Baroness Taylor of Stevenage (Lab)
My Lords, I hear what the Minister is saying, but it will not touch the sides. The local government funding crisis has seen planning departments, even those in shared services, with ever-diminishing resources. Economic growth absolutely depends on a quick and efficient planning service, delivered at local level. Labour will increase planning capacity by hiring more than 300 new planners, funded by increasing the surcharge on stamp duty paid by non-UK residents, to ensure that every local planning authority has at least one full-time planner. Does she agree that every local planning authority should have at least one full-time planner?
Baroness Penn (Con)
My Lords, as I have said, we have made provision for increased resources to go into local planning. I am glad the noble Baroness opposite has recognised the success of the surcharge on stamp duty charged to non-resident purchasers of property, which was introduced by this Government.
The Earl of Lytton (CB)
My Lords, given the clear impression that local authorities do not have the resources to draw up a robust local plan at the moment—this can be rectified only over time—and, even worse, that they do not have the resources to defend a local plan when it is challenged by speculative proposals on appeal, what does the Minister suggest for current issues around water and nutrient neutrality and biodiversity net gain, referred to by the noble Lord, Lord Crisp, given the existing lack of ability to monitor, let alone take enforcement action against, infractions?
Baroness Penn (Con)
My Lords, as noble Lords will know, the Government had a proposed solution on nutrient neutrality that was rejected by this House, including by the Front Bench opposite, holding back the building of thousands of additional homes. The point about more specialist skills is well made. That is why, as part of our planning capacity and capability programme, we are looking to boost specialist skills so that local planning authorities have the skills they need.
Lord Anderson of Swansea (Lab)
My Lords, it might not be just a matter of staffing our local planning departments. Do the Government have any concerns about the quality of the planners whom a local authority can recruit, given that the private sector will seek to poach many of the brightest and best?
Baroness Penn (Con)
My Lords, the Government are focused on the recruitment pipeline of planners and offering increased skills training to them. We have two schemes providing bursaries for master’s degrees in planning and have commissioned a nationwide survey of the skills and resources in local authorities with planning responsibilities. It will be the most detailed picture of planning capacity in England to date. We expect it to be published this spring, and will use it as an annual baseline to measure progress.
Lord Naseby (Con)
How can it be a surprise that there is currently a shortage, given that His Majesty’s Government have removed the normal requirement that every local authority had to have a specific target of homes to be built? As any of us who had been in local government knew full well, the minute that went, local authorities that were strapped for cash would automatically not move forward immediately to replace planners who retired or moved on.
Baroness Penn (Con)
Planning authorities still have an obligation to produce an up-to-date local plan, setting out how they plan to build the houses that their local areas need. The Government are focused on this and will shine a greater light of transparency on the authorities that do not have plans. We will be prepared to take any measures needed to put that in place.
Baroness Hoey (Non-Afl)
Can His Majesty’s Government have any influence on the training of planners so that they understand the word “beauty” and do not allow such grotesque buildings in London? They are so high, dominating the river, and they destroy the heritage and history of our wonderful capital city.
Baroness Penn (Con)
As I have already said, we are putting funding and resources into increasing the skills of planners in the pipeline for master’s-level qualifications. The point about beauty was well made, and it has been added to the National Planning Policy Framework. Part of getting more houses built is ensuring that local residents have given their consent, and how houses look and feel in local areas is an essential part of that.
Schools: Special Educational Needs
(10 months, 1 week ago)
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Lord Addington
To ask His Majesty’s Government what plans they have to ensure that all schools have the capacity to identify and implement a plan of support for the most commonly occurring special educational needs, including Dyslexia, ADHD, Dyspraxia, Dyscalculia, and Autism.
Lord Addington (LD)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and remind the House of my declared interests.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, ensuring everyone, regardless of need, gets the best education possible is vital. Our SEND and AP improvement plan will ensure all children get the support they need. So far, we have opened 15 special free schools since September; announced the Partnerships for Inclusion of Neurodiversity in Schools programme; trained 100,000 professionals in autism awareness; confirmed funding for 400 more education psychologists; and updated the initial teacher training and early career framework, including additional content on SEND.
Lord Addington (LD)
I thank the Minister for her Answer. I have just managed to read through the updates and changes for training teachers. If we are now going to use online testing as a major identification tool—as suggested—and use it in the classroom, how will we disseminate that knowledge without having more specialists directly available to the school, so that can have accurate diagnosis when those assistive technology methods are used?
Baroness Barran (Con)
The noble Lord will be aware that our whole approach is about meeting the needs of the child and not requiring a diagnosis to get support. That is incredibly important for our focus on intervention and support at the earliest possible stage. All that comes before the online testing, and it is critical that we get it right.
Baroness Bull (CB)
My Lords, around 6% of UK children are affected by dyscalculia: a learning disability impacting numerical processing and the ability to learn, understand and perform maths. It has a similar prevalence and impact on education and employment as dyslexia, yet there is no official government recognition of dyscalculia. Does the Minister share my concern that specialist maths teachers are under no obligation to learn about dyscalculia unless they opt for additional modules? Given that the Government intend for maths to be taught to everyone until age 18, surely learning about dyscalculia should be standard for maths teachers?
Baroness Barran (Con)
I understand well the point the noble Baroness makes, but I refer again to the very recently published changes that we are making to the initial teacher training and early career framework, which is bringing much more on identification of special educational needs and specific learning difficulties such as dyscalculia into the early career framework. We are also making sure that teachers get the support from their mentor to develop those skills throughout their career.
Baroness Stedman-Scott (Con)
My Lords, I declare my interest as a member of the Public Services Committee, which has been looking into these matters recently, and I have a great-nephew who has just had his assessment for autism. If I have understood it correctly, there is a massive recruitment issue in respect of assessment staff. What are we doing in national government and local government to improve the situation? I would be very happy for my noble friend the Minister to write to me on that.
Baroness Barran (Con)
As my noble friend knows, for some of the issues with waiting lists for assessment—which I recognise are incredibly worrying for parents and their children in particular—those reasons are complicated. As I have already said, we want to be sure that our mainstream education is inclusive and supports children before they get a formal diagnosis. That is some of the focus of our new national professional qualification for SEND leaders. We are increasing the number of educational psychologists by 400 from 2024. As I mentioned, we are developing the partnership for neurodiversity in schools between local authorities, integrated care boards and schools, supported by £13 million of funding, to make sure that schools respond to neurodiverse children as well as possible.
Baroness Blower (Lab)
My Lords, notwithstanding the Minister’s Answer to the Question from the noble Lord, Lord Addington, if she had a chance to read an article in the Observer yesterday, she will know that many schools up and down the country are facing deficit budgets and are required to make redundancies of both teaching and non-teaching staff, which means that the capacity to deal with all these issues—as well as others—is significantly reduced. When might the Government consider urgently putting in additional resources?
Baroness Barran (Con)
The Government have enormously increased support for children with special educational needs. The high needs capital investment is £2.6 billion between 2022 and 2025, which will create many more specialist places, which the Government absolutely acknowledge are needed. I remind the House that per-pupil funding next year will be the highest ever in real terms.
Lord Bishop of Lincoln
My Lords, I welcome everything that the Minister has said, but we all know that, even with the initial screening online, a full diagnosis for many children with any of these needs can take years to confirm. I am interested in what the noble Baroness has to say about how families—and the children themselves—are accompanied through several years of negotiation with the NHS and with local authorities, especially when, as has already been said, certainly in Lincolnshire, staffing costs outstrip the need that is expressed within our schools.
Baroness Barran (Con)
Again, I stress that not every special educational need requires a diagnosis. Children should get support regardless. If we look at the age at which children get an education, health and care plan as a proxy for diagnosis, we see that around a quarter receive an EHCP under the age of five, with almost half getting one between the ages of five and 10. That has been very stable over the last 10 years. The remaining quarter are above 11. I understand that these can be stressful, difficult times, but there has been relative stability over many years at the age of diagnosis, although there is greater identification of specific issues—in particular, autism.
Lord Storey (LD)
My Lords, I note what the Minister said in reply to my noble friend about new provision being made; that is to be welcomed. Ofsted inspections have found a shortage of school places and special school provision locally—that is the key word: locally—for children and young people with complex needs. As a consequence, they are placed out of their locality, away from their families, friends and peer groups. What are the Government planning to do to ensure that there is sufficient specialist provision in local areas?
Baroness Barran (Con)
I can only refer again to what I just mentioned: the £2.6 billion between 2022 and 2025 to deliver additional new specialist places, which will of course be closer to where children are. I absolutely share the noble Lord’s concerns about children having to travel out of area.
Baroness Wilcox of Newport (Lab)
My Lords, school absences are one of the key issues for our school system, but absence rates are, by one measure, 10% higher for autistic children and even higher for children with a SEND statement? What assessment have the Government made of the interaction between the lack of provision for SEND support and absence rates? How do the Government plan to target the persistent absence of SEND pupils in particular?
Baroness Barran (Con)
The noble Baroness knows that absence rates for children with special educational needs have always, rightly or wrongly, been higher than those for children without special educational needs. In part, there is an assumption that such children may also experience greater incidence of ill health. The Government are focusing on a very detailed analysis, looking at patterns across different schools and identifying which practice is working to make sure that those children are back in school, and then sharing it through our attendance hubs. That is important, because we know that children with special educational needs, more than any other children, thrive when they are in school all the time.
Self-employment: A1 Forms
(10 months, 1 week ago)
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The Earl of Clancarty
To ask His Majesty’s Government what steps they are taking to improve the provision of A1 forms, in particular for self-employed workers in the music industry touring in the European Economic Area.
The Parliamentary Secretary, HM Treasury (Baroness Vere of Norbiton) (Con)
My Lords, HMRC is rolling out significant improvements to the application process by allocating extra resources to help answer phone calls and deal with correspondence across all national insurance services. That includes the training and deployment of more people to process A1 applications. HMRC has also introduced new digital A1 certificate application forms and will roll out automation technology to help process customers’ applications faster.
The Earl of Clancarty (CB)
My Lords, as the Minister will be aware, concern is such that both LIVE and the Independent Society of Musicians have written to the Treasury about this issue. I appreciate that there is a recovery strategy but, as the April deadline approaches, there has been no noticeable improvement. Many musicians and crew are receiving their forms after a tour has ended, meaning that money is withheld, potentially permanently. Ultimately, the Treasury will be the loser. Will the Minister agree to meet Peers and interested parties to talk about this? I hope she agrees that that might be helpful.
Baroness Vere of Norbiton (Con)
I am grateful to the noble Earl for raising this issue. I reassure him that my inquiries in the Treasury have caused one or two minor waves in ensuring that this gets the priority that it needs. There has been an improvement, although I accept that it is not good enough—as HMRC also acknowledges—and that more needs to be done. I will take away his request for a meeting. Although I am of course happy to meet him, the subject is not directly within my portfolio, so it might be better if the relevant Minister met him.
Lord Storey (LD)
My Lords, the news that the Treasury will speed up the process for these forms is welcome for touring musicians, but there are other limitations stifling a thriving live music sector that the Government could take action on. For example, can the Minister confirm whether the Government will commit to the permanent retention of the 50% orchestra tax relief rate?
Baroness Vere of Norbiton (Con)
The orchestra tax higher rate has been extended to the end of the 2024-25 tax year and then a taper will be put in place. It is worth noting that the orchestra tax relief has been worth £62 million since 2016. Obviously, the Treasury keeps taxes under review. I note the noble Lord’s comments.
Lord Berkeley of Knighton (CB)
My Lords, as the singer Rachel Nicholls has documented, the problems over visas for musicians and singers are now compounded by the fact that foreign opera houses and festivals are beginning to boycott British artists. Has the Treasury made any assessment of how these post-Brexit arrangements are affecting the economy, and if not, please can it do so?
Baroness Vere of Norbiton (Con)
I know that obviously the DCMS and colleagues across government are working very closely with the EU and indeed with individual member states to support musicians, and 23 out of 27 member states have clarified their arrangements or introduced easements to allow visa or work-permit-free routes for short-term touring. France, Germany and the Netherlands have all stepped up early on in the process, and Spain recently changed its requirements after intervention from His Majesty’s Government. Obviously, we will continue to address challenges where we see them.
Lord Aberdare (CB)
My Lords, 20% of orchestras’ earned income comes from touring, mostly to countries in the European Economic Area. The Government’s plan to remove orchestra tax relief completely from performances in the EEA will have a hugely damaging effect on the viability of such touring, making it hard and, for some orchestras, even impossible to continue to tour in Europe. Will the Minister and her colleagues look again at this proposal and, if it cannot be scrapped, what support might the Government offer to orchestras to help offset the income they will lose and to enable them to continue to tour in Europe?
Baroness Vere of Norbiton (Con)
It is not entirely right that costs incurred in the EEA should be offset against UK tax; that would seem slightly odd. However, I reassure the noble Lord that of course some of the costs will be tax deductible: for example, if a group were to hire a conductor from the US and use that conductor for performances in the UK. Obviously, we have to make choices in this area. We are content with where we are headed in terms of removing EEA activity from the orchestra tax.
Lord Livermore (Lab)
My Lords, the A1 form is required for each travelling worker, for each trip and for each EEA country they intend to visit. Industry bodies tell us that this represents a significant burden for their members, particularly for those who are self-employed or work for small organisations. Given that HMRC processes are increasingly digitised, do the Government believe that there is scope for simplifying the application process, such as moving from paper to digital certificates, or allowing people to use previously completed applications as a template for their next submission?
Baroness Vere of Norbiton (Con)
As I explained in my opening remarks, the forms are now digital.
Baroness Vere of Norbiton (Con)
The certificates are a slightly different issue because of course that will depend on the overseas countries accepting a digital form, which I suspect may be slightly more challenging. Where that is possible we will look at it, but we are now focused on ensuring that the processes are sped up. It is important that we get the automation in but it cannot be done end to end, as in some cases one needs caseworkers’ judgment to issue the A1 certificate.
Lord Kamall (Con)
My Lords, the noble Earl, Lord Clancarty, raised the issue of the April deadline and making sure that the applications are available—the A1 form as well as the certification. What advice can my noble friend the Minister give to those who do not receive their forms in time, or maybe receive their form electronically but do not have the necessary certification? What leeway will be given to those individuals?
Baroness Vere of Norbiton (Con)
The A1 certificates are issued all the time. As the noble Lord, Lord Livermore, pointed out, in many cases a worker needs a certificate for every time they go to a certain country, because of course the circumstances may change. However, in other cases, forms can be valid for up to two years. Therefore there is not an April deadline per se. The April 2024 date is when HMRC expects to be processing back to its normal target arrangements.
Lord Macpherson of Earl’s Court (CB)
My Lords, I declare an interest as my son is a rock musician. Does the Minister agree that the provision of music, particularly rock music, is something in which Britain has a comparative advantage? Does she also agree that, for all its benefits in other areas, Brexit has unambiguously increased the barriers to trade in this area?
Baroness Vere of Norbiton (Con)
I absolutely agree with the noble Lord that the UK has one of the finest music industries in the world, which of course includes rock music but also classical music and opera. It is the second-largest recorded music market in the world and contributes £6.7 billion to the UK economy. Brexit has meant that there have been changes to certain arrangements. However, the A1 form process has remained relatively stable for many years.
Lord Grocott (Lab)
My Lords, as Brexit has been mentioned, I point out that many Members of the House still here will, like me, well remember the early days of the Beatles. They will remember that the Beatles managed perfectly well in Hamburg for many months, if not years, without any great difficulty. That was before the EU was even thought of. Can the Minister consider ways in which we can learn from this by contacting Paul and Ringo to see how they managed that?
Baroness Vere of Norbiton (Con)
The Beatles split up the year I was born so I do not have as long a memory as the noble Lord. However, the Government are very focused on developing our emerging artists and ensuring that they can get to new international markets, whether that be in the EU or beyond. The music export growth scheme has been tripled and will now spend £3.2 million over the next two years to support these emerging artists. When it comes to music, we are talking about not just the EU but the entire world.
Lord Forsyth of Drumlean (Con)
My Lords, does my noble friend the Minister agree that this is not a problem of Brexit but a problem of EU members not being co-operative?
Baroness Vere of Norbiton (Con)
My Lords, I had not expected this to get into a Brexit ding-dong per se. The UK was more ambitious than the EU when it came to negotiating the trade and co-operation agreement but some of our proposals were rejected. I note that the TCA is reviewed every five years and, while I would not want to comment on the scope of that review, there may be opportunities in the future.
Computer Systems: Independent Testing
(10 months, 1 week ago)
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Lord Clement-Jones
To ask His Majesty’s Government what action they are taking to reform the Computer Misuse Act 1990 to enable legitimate independent testing of computer systems.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the Government support people undertaking legitimate cybersecurity work to do so without fear of criminalisation. We are actively considering options to strengthen the legislative framework as part of the review of the Computer Misuse Act, which is ongoing. This work is complex and needs a lot of thought, not least to ensure that we do not inadvertently create a loophole that can be exploited by cybercriminals or hostile state actors.
Lord Clement-Jones (LD)
My Lords, the need to be able to carry out independent research into computer systems has been put into the spotlight by the Horizon scandal. We last discussed this issue at Oral Questions last July. Since then, the Government have had the conclusions of a stakeholder working group for several months but have done absolutely nothing to include a public interest defence in the Criminal Justice Bill that is now in the Commons. I described the Government’s progress last year as “glacial”. Was I being unkind to glaciers?
Lord Sharpe of Epsom (Con)
Regrettably, the noble Lord is wrong. We set up a multistakeholder group of systems owners, law enforcement, cybersecurity companies and prosecutors—a systems access group—to specifically consider the proposal of statutory defences. Six meetings were held between May 2023 and October 2023. Unfortunately, there is a lack of consensus among those participants and the cybersecurity industry, and with law enforcement and prosecutors, on whether there is a need for statutory defences and on what is considered to be legitimate activity. That lack of consensus proves the point that careful thought is needed in this area.
Lord Holmes of Richmond (Con)
My Lords, I declare my technology interests as set out in the register. Does my noble friend agree that it is time that a statute which is 34 years old, was introduced when only 0.5% of us were online and which 91% of cyber professionals say is damaging to the UK cyber industry, was updated to enable our fantastic cyber professionals and to increase growth and productivity in the UK?
Lord Sharpe of Epsom (Con)
My noble friend raises some good points and, as I said, the Government are considering the right way to do that. If I talk about some of the difficulties, it might illustrate this point to the House. Amending legislation to enable cybersecurity activities involves accessing computer systems, and the data is complex. This needs a lot of thought. We would need to establish what constitutes legitimate cybersecurity activity and the boundaries of such activity. We would need to consider who should be allowed to undertake such activity, where the professional standards would need to be complied with and what reporting or oversight would be needed. We cannot make changes that would prevent law enforcement agencies and prosecutors investigating and prosecuting those who commit cybercrimes. It is right to consider this carefully and that is what we are doing.
Lord Fox (LD)
My Lords, the Minister set out a long list of things that need considering. I understand his point, so could he perhaps tell us the timetable for this process, when we might hear the verdict on all these considerations and perhaps see some legislation before your Lordships’ House?
Lord Sharpe of Epsom (Con)
My Lords, the public consultation on this process concluded only in November 2023, so we have not had a huge amount of time to consider all the responses. As I have explained, we will be reviewing how to take forward the recommendations and will update Parliament in due course.
Lord Harris of Haringey (Lab)
My Lords, why would a public interest defence help cybercriminals?
Lord Sharpe of Epsom (Con)
My Lords, that is clearly among the things that are being considered.
Baroness Goldie (Con)
My Lords, does the Minister agree that there is a related issue of computer-based evidence? The Police and Criminal Evidence Act 1984 stated that computer-based evidence should be subject to proof that the computer system was operating properly. That changed, in 1999, to a presumption that a computer system has operated correctly unless there is explicit evidence to the contrary. That change was supported by the Post Office and coincided with the introduction of the Horizon IT system. Does my noble friend agree that this area needs to be looked at?
Lord Sharpe of Epsom (Con)
My noble friend raises a very good point. If I may, I will look into the specifics of her question and write to her.
Lord Ponsonby of Shulbrede (Lab)
My Lords, Article 40 of the French criminal procedure code provides for cybersecurity specialists who are acting in good faith and solely in the national interest to be protected from prosecution. Does the Minister believe that a similar provision would be suitable here?
Lord Sharpe of Epsom (Con)
My Lords, we are always interested in learning from the approaches taken by other countries and jurisdictions. We speak with our international counterparts, including all our major allies, to understand how they approach the issue of whether there should be defences to these types of offences. But the majority of our like-minded partners do not have statutory defences and are instead in favour of prosecutorial guidance. For example, the US Department of Justice introduced guidance for prosecutors on when to prosecute instances of potential breaches of its Computer Fraud and Abuse Act.
Lord Clement-Jones (LD)
My Lords, does the Minister agree that the Criminal Justice Bill is a good opportunity for the Government to bring forward a public interest amendment, perhaps with the bells and whistles that the Minister is talking about, or is he firmly of the view that this will occur only in the future?
Lord Sharpe of Epsom (Con)
My Lords, I am not quite sure where the bells and whistles come from. As I said, we are just considering all the potential implications. However, part of the Criminal Justice Bill introduces a new power for law enforcement and other investigative agencies to suspend IP addresses and domain names where they are being used to facilitate serious crime. So the answer is partially yes, but the other situation that the noble Lord described is very complicated.
Lord Arbuthnot of Edrom (Con)
My Lords, the prosecutorial guidance referred to just now by my noble friend leaves computer professionals in a position of uncertainty. Do they not need certainty as to the shape of the law?
Lord Sharpe of Epsom (Con)
Well, yes, and as I said, the working group that was set up to look into this, which included the cybersecurity industry, law enforcement, prosecutors and others, could not reach consensus on this subject. Certain cybersecurity professionals are in favour of defences but other industry experts are not—so we have to continue to consider these responses.
Royal Navy: Aircraft Carriers
(10 months, 1 week ago)
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Lord West of Spithead
To ask His Majesty’s Government what assessment they have made of the material state of the Royal Navy’s aircraft carriers.
The Minister of State, Ministry of Defence (The Earl of Minto) (Con)
My Lords, the Royal Navy continues to meet its operational commitments, both at home and abroad. Having two aircraft carriers means that HMS “Prince of Wales” has quickly prepared to deploy in place of HMS “Queen Elizabeth”. She has sailed from Portsmouth this afternoon to join the NATO exercise Steadfast Defender. Following initial investigations, HMS “Queen Elizabeth” will be required to sail for Rosyth in Scotland to undergo repairs for an issue with her starboard propeller shaft coupling, which will be carried out in due course. Her issue is not the same as that experienced by HMS “Prince of Wales” back in 2022.
Lord West of Spithead (Lab)
My Lords, the Minister has made it quite clear that the “Prince of Wales” has now sailed. It is unfortunate that they prepped everyone for a sailing yesterday and that did not happen, but I understand why that was the case. Beatty very famously said, as his second battle-cruiser blew up at the Battle of Jutland, “There seems to be something wrong with our”—expletive—“ships today”. That is not the case with the carriers, but I am very concerned about the initial problem the “Prince of Wales” had some almost two years ago with the shaft misalignment. Will the Minister tell us how we are going to be able to get some payment from the people who built the ship? To have accepted it with a misaligned shaft was bad, and it was badly built. Somehow, we should be able to get money back from the builders, rather than the UK public paying for that damage.
The Earl of Minto (Con)
I thank the noble Lord, and I concur that the Royal Navy has worked extremely fast to be able to move the “Prince of Wales” out in place of the “Queen Elizabeth” after only eight days—it is a remarkable feat, and we should be grateful to them all. As far as her propellor shaft problem, my understanding is that it is ongoing and subject to continued negotiations.
Baroness Goldie (Con)
My Lords, nobody knows better than me how much the noble Lord, Lord West, enjoys his little bit of impish mischief when discussing Royal Naval assets. I say to the Minister that, while technical malfunctions are, of course, regrettable—and I am pleased to hear that the “Prince of Wales” has now sailed—it must be acknowledged that both aircraft carriers have made significant contributions to our naval capability. They have been a huge credit to us across the globe, and that is an important part not just of our RN operational capability but of our global soft power.
The Earl of Minto (Con)
I thank my noble friend for that confirmation and entirely agree with it. It is worth saying that HMS “Prince of Wales” will reach Steadfast Defender before the commencement of this extremely important NATO exercise, involving the 31 nations of NATO and Sweden as well.
Baroness Janke (LD)
My Lords, the material state of the Royal Navy’s aircraft carriers should be a national shame. Without these aircraft carriers being in a suitable state, the Navy cannot carry out its necessary defence duties. At this stage, it appears to be difficult to determine whether the issues are due to fundamental design flaws or with the amount of testing time allocated when these vehicles are trialled. In the light of this, would the Minister support a review into the procedures for routine maintenance checks on HMS vessels?
The Earl of Minto (Con)
My Lords, I answered this question the other day. These are highly technical pieces of equipment. We carry out regular tests, and it was a regular test which determined that the “Queen Elizabeth” should not sail. The advice was that it should not sail, and the sensible thing to do was to use the other aircraft carrier. That is exactly what we have done.
Lord Hamilton of Epsom (Con)
My Lords, further to the request from the noble Lord, Lord West, that compensation should be paid by the manufacturers of these aircraft carriers for a total sum of £6.2 billion, does my noble friend accept that BAE S might not be very good at building ships but it is very good at writing contracts?
The Earl of Minto (Con)
My Lords, that is not something I am particularly expert in, but I can see that it is important to make certain that a contract has the correct clauses to ensure that, when things go wrong, the placer of the contract is suitably covered.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I refer your Lordships’ House to my register of interests, specifically my ties to the Royal Navy. Our aircraft carriers are a core component of our conventional deterrent. While we welcome the fact that the “Prince of Wales” has deployed—we thank the crew for so quickly changing their plans—can the Minister tell the House what message it sends to our adversaries that we have had such struggles with our carriers in recent days? What assurances can he give your Lordships’ House that the carrier is able to complete this deployment in full, without further maintenance issues?
The Earl of Minto (Con)
My Lords, that is precisely the question I asked earlier in a briefing. I am assured that the carrier which has left to join Steadfast Defender will certainly fulfil its commitments, and that the “Queen Elizabeth” is on her way to dry dock to find out exactly what is wrong.
Lord Lancaster of Kimbolton (Con)
My Lords, I am a simple soldier, but I do not underestimate the complexities of trying to get carriers to sea, not least marrying the personnel issues with the mechanical. My concern, though, is a slightly different question. Does my noble friend feel that the MoD’s attitude to risk is currently in balance? From my experience over a number of years now, our attitude to risk seems to be that we are becoming ever more averse to it. Of course if a propeller is not working, a warship cannot go to sea, but it seems that ever smaller incidents prevent principled actions happening because we are becoming so risk-averse when many of these risks could be mitigated and ships could get to sea.
The Earl of Minto (Con)
My noble friend raises an extremely interesting point. As I think many noble Lords know, I have come in from the private sector relatively recently, where the concept of risk is considered completely differently from how it is within government, and certainly within the Ministry of Defence. I fully understand that, when you are dealing with people’s lives, you want to minimise the risk as far as you possibly can, but there comes a point where you have to get the risk-return in balance. I am not certain that we have got that right in government yet.
Lord McDonald of Salford (CB)
Could the Minister update the House as to when aircraft suitable for flying from these very expensive aircraft carriers will be ready to be deployed?
The Earl of Minto (Con)
My understanding is that there are aircraft on board the carrier now.
Lord Stoneham of Droxford (LD)
Could the Minister tell us how many other UK vessels are available to accompany and defend our aircraft carrier going to the Red Sea?
The Earl of Minto (Con)
My Lords, the answer to that question is that there is planned maintenance and a certain amount of ships are out of service at any one time. However, force protection is considered paramount at all times, and there is sufficient cover to ensure that is the case.
Lord Horam (Con)
My noble friend raised the question of risk in the Ministry of Defence. Is there not also the question of efficiency, particularly an ongoing question of the efficiency of procurement in the Ministry of Defence? This is a vital issue, given the state of the world at the moment. Will he take this point to his friend the Minister in the department so that we can consider this carefully?
The Earl of Minto (Con)
I thank my noble friend for that. I certainly will; the question of procurement is a deep and difficult one to get your hands around, but it is certainly something we should all take very seriously.
Baroness Northover (LD)
My Lords, in the light of this discussion, and the usual concerns of the noble Lord, Lord West, what discussions are the Government and the Ministry of Defence having, in the light of the comments from a potential presidential candidate in the United States about backing off from NATO or potentially encouraging Russia to attack certain NATO members?
The Earl of Minto (Con)
I am sure that all noble Lords will find that particular gentleman’s comments extraordinary. I assure all noble Lords that the Ministry of Defence is looking into all possibilities very seriously.
Lord Touhig (Lab)
My Lords, can I come back to the Question posed by my noble friend Lord West right at the beginning? In answer to my noble friend’s question about recovering some of the costs from the companies which built the carrier, the noble Earl said that the Government are involved in negotiations. Will he undertake to come back to the House and update us on these negotiations, so that we can see if we can get some of our money back?
Lord West of Spithead (Lab)
My Lords, to come back on the point of risk, would the Minister not agree that, if there had been a war, there is no doubt that the “Queen Elizabeth” would have sailed, thus with corrosion on her coupling of tensile steel? I have no doubt, with my professional knowledge of this, that she would have been under steam for many months without anything going wrong. They are doing double checks and double checks because they are so nervous about something happening. I think there is an issue about risk, and possibly sometimes we do not take risks we should. On this occasion, I think it was the right decision, because another carrier was available, but in wartime we would have gone ahead and the ship would have operated.
The Earl of Minto (Con)
My Lords, from what I know about that, I agree entirely with what the noble and gallant Lord has just said.
Lord Soames of Fletching (Con)
Would my noble friend the Minister agree with me that, disappointingly, these aircraft carriers, which are in any event extremely vulnerable in the theatre of operations, also appear to be unreliable? Will he confirm to the House that there will have sailed with the aircraft carrier an added complement to her crew from the civilian engineers responsible for these problems?
The Earl of Minto (Con)
My Lords, my understanding is that that is the case. Clearly, these matters are looked at seriously throughout these exercises, and obviously one hopes that the reliability of these extremely complicated pieces of equipment improves.
Safety of Rwanda (Asylum and Immigration) Bill
Monday 12th February 2024
(10 months, 1 week 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: HL Bill 41-II Second marshalled list for Committee - (12 Feb 2024)
The Deputy Chairman of Committees (Lord Haskel) (Lab)
My Lords, the noble Baroness, Lady Brinton, will be taking part remotely. I remind the Committee that unless they are leading a group, remote speakers speak after the mover of the lead amendment in a group and may therefore speak to other amendments in the group ahead of Members who tabled them.
Clause 1: Introduction
Amendment 1
Baroness Chakrabarti
Member’s explanatory statement
This amendment, and others in the name of Baroness Chakrabarti to Clause 1, add the purpose of compliance with the rule of law to that of deterrence. The amendments require positive UNHCR advice on the safety of Rwanda to be laid before Parliament before claims for asylum in the UK may be processed in Rwanda.
Baroness Chakrabarti (Lab)
My Lords, we commence the vital work of this Committee with amendments that address a fundamental dispute of fact: that the Government’s attitude to checks, balances and the rule of law now threatens our unwritten constitutional settlement. Having failed to convince our highest court that the Republic of Rwanda is currently safe for asylum seekers and refugees, the Executive seek to overturn the Supreme Court’s recent factual determination, ousting the jurisdiction of domestic courts to reconsider those facts in the light of further developments, including the Rwanda treaty on which the Government rely. The Government further purport to take powers to ignore interim orders of the European Court of Human Rights. Thus, they threaten both the domestic rule of law, especially the separation of powers, and the international rules-based order.
I remind noble Lords not just of the Supreme Court’s decision of 15 November last year but of subsequent reports of your Lordships’ International Agreements Committee, endorsed by an overwhelming vote in your Lordships’ House; of the Constitution Committee, including three former Conservative Ministers and a former No. 10 chief of staff; and now the majority report of the Joint Committee on Human Rights. I will assume that some members of those committees will speak, so I will leave them fully to outline the clear results of their deliberations.
None the less, as your Lordships overwhelmingly decided to give this Bill a Second Reading, I will approach the task of amendment in the spirit of constitutional compromise, seeking to amend the Bill in line with the Government’s desired policy of offshoring asylum decisions while also seeking to comply with the Supreme Court’s decision and the unequivocal advice of your Lordships’ International Agreements Committee and Constitution Committee—this notwithstanding my personal objection to transporting human beings for processing, which will no doubt be subject to further political and legal scrutiny in the months and years ahead.
For present purposes, I take the Government at their word—even if that word has been put rather belligerently to the Supreme Court and your Lordships’ House. I will assume that the Government do not want to put the Executive of the United Kingdom on a collision course with our Supreme Court or our international legal obligations, so amendments in this group seek to offer a way through the stalemate for people of good will from all sides of your Lordships’ House. Amendments 1, 2, 5 and 34 in my name are supported by the most reverend Primate the Archbishop of Canterbury, the noble and learned Baroness, Lady Hale of Richmond, and the noble Viscount, Lord Hailsham. I have signed Amendments 3 and 7 tabled by the noble Viscount. The noble Lord, Lord German, has Amendments 11 and 12.
Your Lordships’ Constitution Committee warned of a number of concerning trends in the present Government’s approach to our constitution and our courts, which seeks, for example, to disapply the Human Rights Act for particular unpopular groups rather than repeal it wholesale for everyone. I observe another new fashion in adding a lengthy introduction to a relatively short Bill that deems facts changed, making its purposes so clear that the courts should be wary of interpreting the legislation as they might otherwise do. However, since the arrival of this Bill in your Lordships’ House, the Prime Minister has stated—by a press conference, but stated—that his Rwanda Bill was designed to assuage the concerns of the Supreme Court.
Therefore, Amendments 1 and 2 add a secondary but essential purpose to the primary purpose of preventing and deterring what the Government see as unlawful migration. This purpose is to
“ensure compliance with the domestic and international rule of law by providing that no person will be removed to the Republic of Rwanda by or under such provision”
unless two conditions are met. The first condition is that there is advice from the UNHCR that Rwanda is now safe; for example, as a result of the successful implementation of promised reforms and safeguards to the asylum system there. The second condition is that this advice has been laid before both Houses of Parliament.
Now, some may balk at what they regard as a foreign body having any role whatever in the assessment of facts on the ground in Rwanda. However, as the Joint Committee on Human Rights noted, our Supreme Court’s concerns about the lack of safety there were in no small part in the light of unequivocal expert evidence from the UN High Commissioner for Refugees, with its special expertise and role under the refugee convention.
If the Executive is now asking Parliament to become complicit in overturning findings of fact by our Supreme Court—this is made explicit by Amendments 3 and 4 in the name of the noble Viscount, Lord Hailsham—it should at the very least allow Parliament to hear advice from the expert body that the Supreme Court found so authoritative before allowing facts to be deemed as having changed. Accordingly, Amendment 5 replaces the edict that Rwanda “is” safe with that belief that it “may become” so, because it should be our unanimous aspiration that the whole world becomes a safer place for persecuted and displaced people.
Further, as even an independent expert body should never usurp the fact-finding jurisdiction of our courts, especially in dangerous and fast-changing times, Amendment 34 makes it clear that even clear and positive advice from the UNHCR would create only a “rebuttable presumption” that Rwanda is safe. In keeping with earlier legislation, as observed by the Constitution Committee of your Lordships’ House, it would not hobble our courts with an absolute conclusion. Yet, if the Government are really so confident that that Rwanda treaty, unlike the refugee convention so long before it, will be implemented so as convincingly to render that country safe, they have nothing to fear from either these amendments or our courts. I beg to move.
Lord Howard of Lympne (Con)
My Lords, I must begin by apologising for the fact that I was abroad at the time of Second Reading and was therefore not in my place at that time. Much was made at Second Reading of the notion that the Bill in some way contravenes our constitutional principles, is an affront to the separation of powers, and infringes on the power of the judiciary. Those allegations are thoroughly misconceived but they are highly relevant to this amendment.
The plain fact is that we are a parliamentary democracy. That means that Parliament is sovereign and the reason why so many of us cherish that overarching principle is that we attach high importance to something called accountability. Accountability was not a word which featured very large in your Lordships’ debate at Second Reading. The courts are accountable to no one; they proudly proclaim that fact. Many of the bodies to which Parliament has in recent years outsourced some of its responsibilities have little, if any, accountability. But Parliament itself, or at least the other place—the House of Commons, in which I was privileged to serve for 27 years—is truly accountable. It is answerable to the British people at regular intervals and its Members can be summarily dismissed.
There are those who seem uncomfortable with our system and it is indeed true that there has been something of a whittling away at it in recent years. The courts have extended their power. Parliament itself has contributed to it by the outsourcing to which I referred. I often think it is a pity that those who praise these developments failed to come up with some suggested alternatives to parliamentary democracy, but there it is.
These amendments, if passed, would mark a new jump in this process. I ask those who support them to address the question of accountability. To whom is the United Nations High Commissioner for Refugees accountable? They might say to the General Assembly of the United Nations, perhaps. To whom is that body accountable? Neither the high commissioner nor the General Assembly have any responsibility for securing our borders. They have no responsibility for the safety of those who make the perilous channel crossing. They have no duty to take into account the resentment felt by so many against the sheer unfairness of illegal immigration and the way in which it gives preference not to the most deserving, but merely to those who can afford to pay the people smugglers.
Our elected Government and this Parliament bear those responsibilities, and the House of Commons is directly accountable to the electorate for the way in which those responsibilities are discharged. These amendments would prevent our Government and Parliament discharging those responsibilities. They seek to outsource those responsibilities to an unelected body with no accountability. The acceptance of these amendments would constitute nothing less than an abdication of the responsibilities of government. I note without surprise—
Lord Kerr of Kinlochard (CB)
I do not understand the argument that the noble Lord is making. As I understand the amendment in the name of the noble Baroness, Lady Chakrabarti, the responsibility laid on the UN High Commissioner for Refugees would be to advise the Secretary of State. I do not see how that makes him accountable; it would remain the Secretary of State, surely, who was accountable to this Parliament for the decisions that he decided to take in the light of the advice he received.
Lord Howard of Lympne (Con)
I fear not. The easiest way of replying to the noble Lord is to read from the Member’s explanatory statement on the amendment:
“The amendments require positive UNHCR advice on the safety of Rwanda to be laid before Parliament before claims for asylum in the UK may be processed in Rwanda”.
If there is no positive advice from the UNHCR, those claims cannot be processed in Rwanda. I think that will aid the noble Lord’s understanding of what I am saying.
Lord Howard of Lympne (Con)
I think it is perfectly reasonable, if one wants to know the intention of the amendment, to look at the Member’s explanatory statement. That is, indeed, the purpose of the explanatory statement.
I note with interest, but not with surprise, that none of these amendments is signed by any member of the Opposition Front Bench. I am not surprised because no party that aspires to government could support the abdication of the responsibilities of government, which these amendments would achieve.
I will just say a word about Amendment 7 in the name of my noble friend Lord Hailsham and others. It asserts that the decision of the Supreme Court was a “finding of fact”. But it was not; it was a finding of opinion—the Supreme Court’s opinion that the removal of asylum seekers to Rwanda would expose them to the risk of refoulement. It is an opinion on which men of good faith and true can disagree. Indeed, it is an opinion on which distinguished judges disagreed.
The Divisional Court, one of whose two members was a Lord Justice of Appeal, came to the conclusion that what the Government were proposing was entirely lawful. The Court of Appeal, by majority, disagreed, but the then Lord Chief Justice dissented. In my view, when the Supreme Court reaches a conclusion on a matter of opinion, it is entirely legitimate and proper constitutionally for Parliament—the House of Commons is democratically accountable to the people, and the Supreme Court is not—to substitute its own opinion. That is what the Bill does, and that is why I support it.
Baroness Meacher (CB)
My Lords, I will speak briefly in support of the noble Baroness, Lady Chakrabarti. I want to put on record for this Committee that the Bar Council has a real concern about the apparent incompatibility of the European Convention on Human Rights and this Bill. The Supreme Court, as we know, made a decision—in my view, on the basis of facts—that Rwanda is not a safe country. It put forward a whole series of points to support that view. The Bill has not in any way countered any of the points made by the Supreme Court in its judgment. The Bar Council is concerned about that.
The Bar Council is also concerned that the Government are standing down the judges from their role overseeing the work of the Government in operating this Bill. The Bar Council sees this as a clear infringement of the fundamental principles of the rule of law. It seems that, in disapplying in this context the convention on human—
Lord Murray of Blidworth (Con)
Is it not right that Clause 4 of the Bill provides exclusively that members of the judiciary will have the opportunity to consider challenges brought of an individual nature in relation to a particular claimant?
Baroness Meacher (CB)
My Lords, that may be so, but I think that the point I have made stands—and I think that perhaps I have said enough to point out that the Bar Council has very real concerns about this Bill.
Baroness Hamwee (LD)
My Lords, I will speak mainly to Amendments 11 and 12 in the name of my noble friend Lord German. I cannot stop myself saying that it really goes against the grain to do anything that suggests that Liberal Democrats regard the Bill as requiring only some tweaking to be acceptable.
First, I would like to make a general comment about Clause 1. For many years, Governments have opposed amendments setting out the general purpose of a Bill on the basis of such a clause having no effect and being rather confusing. I used to find that understandable, although I signed such amendments; they have tended to be narratives describing hopes, rather than expectations or anything firmer. The noble Baroness, Lady Chakrabarti, has commented on the changing fashion—of such measures being there to make the courts wary of the direction in which they might like to go. This problem applies to Clause 1.
There is a notable omission from the exposition of the Government’s policy—and that is tackling people smuggling, which is abhorrent in itself, not only because of the smugglers’ role in bringing asylum seekers to the UK. The Illegal Migration Act has a similar introductory section. Specifically, Section 1(3) says:
“Accordingly, and so far as it is possible to do so, provision made by or by virtue of this Act must be read and given effect so as to achieve the purpose mentioned in subsection (1)”.
It is important to be clear about the legal effect of Clause 1. If it is intended that the clause is to be relied on, it needs to be sharpened up—for instance, in the case of terminology such as
“the system for the processing of … claims … is to be improved”,
an objective of the treaty, which is a pretty low bar. But my central point is that we need to be very clear about the legal effect and status of this clause, because there will be little point in amending the clause on Report unless the amendment has an effect, either as a stand-alone or by subsequent reference, such as the Act not coming into force unless a provision in Clause 1 is met. This may seem a rather technical point but, looking ahead, I do not want to be tripped up on it.
Amendment 12—I am aware that it is an amendment to the clause whose effect I have been querying—therefore probes the definition of “safe country”. The Bill refers, in Clause 1(5)(b)(ii), to a person having
“their claim determined and … treated in accordance with that country’s obligations under international law”—
that is, Rwanda’s obligations. The amendment would leave out “that country’s” and insert “the United Kingdom’s”, changing it to being the UK’s “obligations under international law”.
The treaty is predicated on Rwanda being under the same obligations, and as observant of them, as is the UK, so that the transfer to Rwanda, as I understand it, means really only a change of venue. Dr Google did not really help me yesterday in finding what conventions Rwanda has signed up to and, importantly, ratified and observed. But we are proceeding with this on the basis that everything that we would do in this country will apply under the new regime, and I will be interested in the Minister’s comments.
Amendment 11 is related to this. Clause 1(5)(a) also defines a safe country for the purposes of the Bill. It refers to the UK’s obligations
“that are relevant to the treatment in that country of persons who are removed there”.
Surely, all our obligations are relevant to the treatment of persons removed there, not just in that country. So both amendments go to the issue of safety—that is, the Bill’s compatibility with the UK’s human rights obligations, which are the obligations that are crucial as part of this whole regime.
Baroness Helic (Con)
My Lords, it is a hard act to follow so many lawyers here: I hope that my compassion and conviction might help me where I am missing legal expertise. I support the amendments to Clause 1 in the name of the noble Baroness, Lady Chakrabarti, which introduce an additional purpose of compliance with the rule of law and a role for the United Nations High Commissioner for Refugees. I apologise that I was unable to join your Lordships for Second Reading, as I was overseas. I have read the Hansard record of the debate, during which many noble Lords raised what I see as the fundamental issue at stake with the Bill and the Rwanda scheme more broadly: how it is squared with the rule of law and with the international agreements and obligations that are the bedrock and defence of our freedom and prosperity.
I come to this with a conviction that our best chance of solving the global challenges we face, illegal migration among them, is not through unilateral action but through international co-operation and standing up for the rule of law. Other noble Lords have explained how these amendments would help ensure that refugees really are safe, and the importance of this as a matter of humanity as well as of law. I suggest that recognising a role for the UNHCR is also important from an international perspective, and as a route towards the lasting solution the Government seek. It is right to want to reduce people smuggling, but, if the Bill is to have a positive impact, it will be only as part of a wider approach.
The preamble of the 1951 refugee convention is surely correct when it states that a “satisfactory solution” to the problem of supporting refugees in a fair and humane manner, without placing an undue burden on any one state,
“cannot therefore be achieved without international co-operation … the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner”.
As I have argued in your Lordships’ House before, a lack of respect for international law and the weakness of international institutions lie behind the large number of people forcibly displaced around the world. While not the only cause, wars of aggression, indiscriminate or deliberate targeting of civilians, war crimes and crimes against humanity drive displacement. We will not reduce the number of displaced persons globally while wars and atrocities continue unchecked, and while international law is applied unevenly. At a time when we and the wider West are struggling to maintain any credibility when it comes to the rule of law and international co-operation, recognising in law a place for UNHCR in determining the safety of the Rwanda scheme would be a small step towards demonstrating our ongoing commitment to international institutions and agreements that are critical for global security.
It has become a bit of a trope to say that the refugee convention and UNHCR itself are outdated and unable to rise to the magnitude of the task at hand. In supporting a role for UNHCR in this legislation, I challenge that view. It is worth putting the scale of the refugee situation in some context. As a recent book, How Migration Really Works by Professor Hein de Haas, one of the world’s leading experts on migration, sets out very clearly, current refugee numbers are not in fact exceptional or unprecedented. There are 30 million refugees globally, but this is 0.3% of the global population, only marginally above the proportion of refugees in 1992. The vast majority of the displaced stay either in their country of origin or their immediate region; it is a small minority who come to Europe and to the United Kingdom.
We should be able to rise to this challenge. The refugee crisis is one of protection and political will, not only of sheer numbers. This Bill is all about signalling. The Government hope to signal that they are tough on illegal migration and to deter small boat crossings, but we are at risk of signalling that we are uninterested in the rule of law and in our international agreements and co-operation. That would be a very serious mistake for our ability to co-operate on refugees and other global issues, as well as for the international rules-based order.
The Lord Bishop of Southwark
My Lords, I support Amendment 1, tabled by the noble Baroness, Lady Chakrabarti, the noble and learned Baroness, Lady Hale of Richmond, and the most reverend Primate the Archbishop of Canterbury, and Amendments 2, 5 and 34, tabled by the same noble Lords and the noble Viscount, Lord Hailsham. I also offer supportive comments on Amendment 7 to Clause 1, tabled by the noble Viscount, the noble Baroness, Lady Chakrabarti, and the right reverend Prelate the Bishop of Manchester. The most reverend Primate is present but cannot attend the entirety of this debate and the right reverend Prelate cannot be with us this afternoon.
It will be a very slight augmentation of the wisdom of this House to know that we on these Benches do not favour the outsourcing of asylum claims to other countries or territories—which is rather different from what the noble Lord, Lord Howard, was saying about the outsourcing of power. We recognise, however, that the courts have deemed this lawful in certain circumstances and that we have a Bill from the other place which is designed to deal with a particular designation that the Supreme Court deemed to fall outside our obligations under the law.
I accept that the recent treaty between His Majesty’s Government and the Republic of Rwanda makes legally binding, with additional enhancements, the 2022 memorandum of understanding between the two Governments—for example, the commitment under the new asylum procedure that no person relocated to Rwanda under the treaty will be sent to any country other than the UK, if the UK so requests. However, as the House knows, the International Agreements Committee of this House recommends not ratifying until further evidence is available.
None the less, there remain very significant concerns about the contents of the Bill, not least about using legislation to make a declaration of fact in order to correct a court that has heard evidence. It is clear that the Government have gone to a great deal of effort to provide evidence to persuade critics of the feasibility of removal to Rwanda as a safe and properly functioning process while at the same time trying to satisfy their policy aim, and critics of a different stamp, that the limited capacity of the scheme will be a deterrent to those who make long and dangerous journeys to cross the channel.
The purpose of these amendments is to match the Bill more closely to the requirements of the Supreme Court judgment, so that it is more just and less open to challenge. For the sake of the people whose lives will be affected by yet more upheaval, who as it stands will not even have the opportunity to have their claim heard in this country, we cannot afford to get this wrong. Courts and tribunals must be able to make a judgment about the safety of Rwanda based on a consideration of the facts. We are not primarily discussing the suitability of Rwanda; we are discussing its safety for people who, by definition, have highly complex lives and circumstances.
The treaty introduces safeguards and checks, as it should, but these are not yet in force. I share the view that more is needed. The United Nations High Commissioner for Refugees, an agency the Government have worked with in a highly effective way over many years, should provide that positive judgment of safety. Until then, the Government are taking an unreasonable risk by sending anyone to Rwanda.
These amendments offer practical steps which strike the kind of balance we are wise to pursue in this revising Chamber. They do not wreck the Bill, nor remove the objective of deterrence from it—and we can debate in due course the degree of inhibition that brings to the process. Rather, these amendments would provide an adequate mechanism for addressing concerns about the UK’s compliance with international law, and, appropriately, given the name of the Bill, the safety of Rwanda as a destination for the processing of asylum claims intended originally for the UK. These amendments are important for the preservation of judicial oversight and for the maintenance of the separation of powers, which is a fundamental component of our constitution. It is for Parliament to make laws and it is for the judiciary to judge cases, including the lawfulness of government decisions, and to make findings grounded on the basis of evidence.
Amendment 7 seeks to make it plain that the Bill replaces the Supreme Court’s finding of fact. A Bill cannot change the actual situation on the ground in another country; it can only mandate that evidence to the contrary is disregarded. We have a duty of care in international law towards asylum seekers who arrive in this country. Legislating that Rwanda is a safe country does not necessarily make it so for the potentially vulnerable people who might be sent there. However, the Bill’s primary purpose is to disregard the UK’s own Supreme Court’s finding that Rwanda is not a safe country for asylum seekers.
Let us be clear what we are doing. The Law Society has said, unequivocally, that it is inappropriate for the Government to undermine the judiciary in this way and that the Bill threatens the balance of powers in the United Kingdom. The amendment would put in the Bill that a judicial finding of fact is being replaced. I hope that we give these amendments a fair wind.
Lord Hannay of Chiswick (CB)
I give my support to the amendments in the name of the noble Baroness, Lady Chakrabarti, the most reverend Primate the Archbishop of Canterbury, and the noble and learned Baroness, Lady Hale. In doing so, I express slight puzzlement that the Government seem to have difficulty in accepting the amendments. The Government tell us again and again that nothing in the Bill is contrary to our international obligations. Okay, they should then just accept the amendments and make it clearer than it was before. One may have one’s doubts as to the reasons the Government are not going to accept the amendments, but, basically, their position is that of the Red Queen in Alice: “It is so because I say it is so”.
I will address some of the points made by the noble Lord, Lord Howard, because they were extremely far-reaching, damaging and disruptive of our ability to support a rules-based international order. He seemed to not take into account that it was this sovereign Parliament that ratified our membership of the United Nations in 1945. The Charter of the United Nations contains the charter for the General Assembly, and the General Assembly appoints the High Commissioner for Refugees. Therefore, I do not think his argument about lack of accountability stands up. If you think about it, contradicting any role for the High Commissioner for Refugees to give advice to us about whether Rwanda is a safe place is an extraordinarily far-reaching and damaging claim to make.
Lord Howard of Lympne (Con)
As I said in answer to the noble Lord, Lord Kerr, it is not simply a question of seeking advice from the United Nations High Commissioner for Refugees. The amendments clearly state that, unless positive advice is obtained, no one can be removed to Rwanda. So the decision will no longer be the decision of the Secretary of State; it will be the decision of the United Nations High Commissioner for Refugees. That is the point. It is not just advice; it is advice which would be binding, according to these amendments, on the Government.
Lord Hannay of Chiswick (CB)
I thank the noble Lord for that point. He interrupted me before I got to the answer to his question—but that is fine. I had been going to say that the doctrine, according to the noble Lord, Lord Howard, is that every member that has signed the refugee convention—well over 150, I think—and ratified it, including our sovereign Parliament, has the right to reinterpret the convention as it wishes. You have only to stop and think for one minute what that implies to realise that it implies complete chaos and the law of the jungle. If all 150-plus members of the United Nations refugee convention are able to stand up and say, “Well, actually, this is what I think the convention means, and I don’t care a damn what the High Commissioner for Refugees says”, then we are living in chaos. It is to avoid that that these amendments are being put forward.
I strongly support the arguments of the noble Baroness, Lady Helic, who expressed extremely eloquently the reason this country has a real interest in paying attention to these matters.
Baroness Chakrabarti (Lab)
I thought it might help the Committee, before this debate with the noble Lord, Lord Howard, rumbles on, for me to clarify that he is quite right. This amendment, as currently drafted, requires positive advice from the UNHCR, and not just advice, positive or negative. In the current iteration of the amendment, the reason for that is that the Prime Minister expressly said that the Bill is designed to assuage the concerns of the Supreme Court, which were based predominantly on the negative advice from the UNHCR about the situation in Rwanda—such was the nature of the evidence of the UNHCR and the credence that our Supreme Court gave to it.
However, if that formulation is too rich for their blood, the noble Lord, Lord Howard of Lympne, or the Government, are welcome to amend the amendment or offer their own, which requires only advice positive or negative by the UNHCR before either the Secretary of State or Parliament can look again at whether Rwanda has changed subsequent to the treaty and is now, or in the future, a safe place for asylum seekers and refugees.
Lord Hannay of Chiswick (CB)
My Lords, I do not wish to pursue that course at all. I am not one of the proposers of this amendment; I am merely supporting it.
The arguments that I am adducing relate to the state that this country would be in if it issues forth into the world and says it has an absolute right to interpret a United Nations convention which it ratified many years ago, and which it has supported through thick and thin ever since, and now wishes to contradict. That is a serious matter and I do not believe that the arguments of the noble Lord, Lord Howard, ought to carry weight, because the implications of them for our position in the world and our support for a rules-based international order would be extremely damaging.
Viscount Hailsham (Con)
My Lords, I want simply to say a few words in support of Amendments 3 and 7 in my name, and to express more general support for the position adopted by the noble Baroness, Lady Chakrabarti.
On Amendment 3, it is simply untrue to state that it is the judgment of Parliament that Rwanda is a safe country. That may be the opinion of the House of Commons—I was a Whip there for many years, so I know the forces that are put in place to assure the opinion of that House; the “elective dictatorship” of which my father spoke—but what is absolutely certain is that it is not the opinion of this House. We know that to be a fact because of the vote that took place here on 22 January.
In my opinion, we should not put into a Bill a statement that is manifestly untrue. Hence, I put down amendments that state the truth: that the safety of Rwanda is the opinion of the Government. That is the truth, so why on earth should we not enact that simple truth, rather than commit what, in other circumstances, would be described as a lie?
On Amendment 7, we should state in clear terms what we are doing. We are, in fact, using a statutory and untrue pronouncement to reverse a recent finding by the Supreme Court. I have the greatest respect for my noble friend Lord Howard; we were colleagues for very many years, and he was in the House of Commons for 27 years. I beat him, as I was there for 30 years, but he was a lot more distinguished than me. However, to try to say that the Supreme Court did not make a finding of fact is to turn the situation on its head. It expressed an opinion as to fact, as juries do in criminal cases—and an opinion as to fact is a finding of fact.
I will take a slightly broader view. I happen to share the view—I suspect it is pretty general in this House—that both legal and illegal migration are far too high and should be reduced. I share the very correct intention of the Government to deter illegal migration, which we need to do. My objection is not to the purpose but to the means being advocated, which is wrong in principle and will not succeed. However, it is clear to me, as it is to the noble Baroness, Lady Chakrabarti, that the Government have decided to push ahead and will doubtless reverse our amendments in ping-pong.
In the spirit of compromise, I will make some positive suggestions, as the noble Baroness did. Leaving aside the issue of principle, I am concerned that the Government are seeking to enact, without any proper assessment, their judgment as to whether Rwanda is safe. That means not just whether the treaty is put in place in Rwanda, but whether its provisions are implemented over a period of time—and whether we can for other reasons say that Rwanda is safe. That, we are entitled to do. To be clear: that is not a one-off assessment; it has to be a continuing assessment, because things can change.
The other thing we need to be absolutely clear about is whether the policy objective is working. We are told that the purpose of the Bill is to reduce illegal migration across the channel. That is a judgment—I do not happen to think it will work—but one thing is certain: we do not know now whether it will work, but in the course of time, we may be able to form a view.
My concern is that the Bill provides no mechanism for a continuing assessment of both the safety of Rwanda and the success of the policy, and I believe that Parliament is entitled to demand a continuous and authoritative assessment. We can argue whether it should be based on the European body; or, as Amendment 81 suggests, it should be done by the Joint Committee on Human Rights; or, as I have in the past suggested, by a special Select Committee appointed for the purpose. However, there is a way forward. The Bill does not come into operation without both Houses of Parliament triggering it by an affirmative resolution, and they can do so only once a report has been received from whatever assessment monitoring board we put into place.
That is not enough because, as I say, we need continuing assessment. Therefore, I contemplate something like this. The initial trigger should be, say, for two years. It could then be renewed for two years by another statutory process—affirmative resolution—on the basis of a further report; and then again, if the Secretary of State thinks he will get away with it. That way, we will have a continuing process of assessment, which would give this House and Parliament in general something on which it could honourably proceed.
I would like to think that my noble friends on the Front Bench will show a certain degree of flexibility. If they do not, it may be quite difficult to persuade their critics to be flexible.
Lord Garnier (Con)
My Lords, I briefly want to follow my noble friend Lord Hailsham in his remarks. Had he been the presider in a three-person court, I would have been very happy to say that, having heard his speech, I had nothing else to add. However, since we are here, your Lordships have the disadvantage of hearing what I have to say. Like my noble friend Lord Howard of Lympne and my noble friend Lady Helic, I regret not being present at Second Reading and apologise, but I have read the Hansard of the debate.
I am always reluctant to disagree with my noble friend Lord Howard, but he took too narrow an approach to the questions before us. I use Clause 1(2)(b), which is the subject my noble friend Lord Hailsham attacks, as a hanger on which to make a few remarks. I think, if I understood him correctly, that my noble friend Lord Howard said that Parliament can essentially do what it likes, and of course he is perfectly right. Parliament can be as foolish as it likes. It can pass a law saying that all dogs are cats, but that does not make all dogs cats. It can pass a law saying that Rwanda is a safe country, but that does not make it a safe country. In addition—this is where I agree with my noble friend Lord Hailsham—it is for the Executive to advance their policy, whether it is a good policy or a bad one. It is for the Government to say that it is their policy that Rwanda is a safe country to which to send failed asylum seekers. If the Government then wish to have their view tested by Parliament, again, they can go ahead and do it.
Therefore, what the Government are proposing as a matter of policy is not a constitutional outrage, but the way in which they are writing it down in Clause 1(2)(b) is, if I may respectfully say so, just plain silly. It is worse to be silly than it is to be guilty of a constitutional outrage, and this is not a constitutional outrage but just plain silly.
Ridicule is a more powerful weapon than the constitutional and legal arguments of any number of lawyers. As the noble Baroness, Lady Chakrabarti, advances in one of her amendments, it would be helpful to have a UNHCR opinion on the safety or otherwise of Rwanda. However, I have a feeling that exporting government policy to the UNHCR is not a good idea. It would be helpful to have that opinion, but it is not essential. The Government must stand on their own feet, bring their policy to Parliament and have it tested. It will survive or not on the merits of the facts. The assessment of whether Rwanda is a safe country must be for the Government to consider and for Parliament to agree; we as a bicameral parliamentary body are not equipped to reach those sorts of conclusions. We can agree or disagree with the Government, but we are not equipped in a presidium to reach a conclusion on whether the Republic of Rwanda is a safe country as a matter of fact.
I do not wish to undermine or underestimate the hugely difficult political problem that the Government face with illegal immigration and the making of unsound asylum applications. Nor do I wish to undermine their genuine and very proper decision and policy to stop the boats. However, if we are to stop the boats, and if we are to reduce the amount of illegal immigration and bogus asylum applications, the Government would go a long way if they had the confidence of their own convictions and allowed Clause 1(2)(b) to say that that the Bill gives effect to the politically expedient policy of the Government that the Republic of Rwanda is safe, rather than trying to shift the responsibility for that opinion on to Parliament. Parliament may come to agree with it, but the initial policy is one for government. To that extent I wholly agree with my noble friend Lord Hailsham.
Lord Anderson of Ipswich (CB)
I am another supporter of Amendment 3. Clause 1 is an example of the current vogue for starting Bills not with operative provisions but with preambular statements of the obvious, a custom which is always irritating but normally harmless. However, there is harm, not just silliness, in Clause 1(2)(b) with its rather grand invocation of
“the judgement of Parliament that the Republic of Rwanda is a safe country”,
a judgment for all time, apparently, that there is no provision to revisit or change. That invocation is unnecessary and contrary to principle. It is unnecessary because there are other ways for Rwanda to be declared or deemed safe. The Secretary of State could be entrusted with the decision or, if it really is necessary for Parliament to take it, there could at least be a power for the Secretary of State to amend it in the light of changed conditions, as was the case with Section 75 of the Illegal Migration Act 2023.
It is contrary to principle because it requires us to come to a judgment on a fact-specific life-and-death matter on which, frankly, we are ill equipped to adjudicate. Of course, this is not the first time that such a thing has happen. It was tried in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, when the countries of the European Economic Area—all signatories to the ECHR—were deemed, beyond rebuttal, to be safe. That experiment, a requirement of European Union law, was not a successful one. Its unwieldiness was demonstrated in the case of Nasseri. The Judicial Committee of the House of Lords dismissed a challenge to the safety of Greece but, through the noble and learned Lord, Lord Hoffmann, whom I am delighted to see in his place, indicated that the courts might have to issue a declaration of incompatibility if the deeming provision was contradicted by the evidence. The issue was sensibly addressed in the Nationality and Borders Act 2022 by transforming the irrebuttable presumption into a rebuttable one.
Lord Tugendhat (Con)
My Lords, like other noble Lords, I was unable to be present for Second Reading two weeks ago, but I cannot allow the Bill to pass through the House without making my deep concern about it evident in public. I am speaking on this group of amendments because they go to the heart of my concern.
I have been a Member of Parliament for a very long time, on and off, and a member of the Conservative Party for some 66 years, when I counted it up. I find it quite extraordinary that the party of Margaret Thatcher should introduce a Bill of this kind. Like some other noble Lords, I have a clear memory of the great battle that Margaret Thatcher fought with the European Union—the European Community in those days—over the British budget contribution. From time to time, it was suggested that she should cut the cackle, put the continentals in their place and cut off the British contribution. That would have been very dramatic, and very popular in some circles, but she did not countenance the idea because she believed that it would be contrary to the law. There were those who warned that it might even run into trouble in the British courts. How different that is from this Bill and the way in which we are now asked to behave towards the Supreme Court and the European Convention on Human Rights.
This is no esoteric matter that concerns only the subject under discussion and is of interest only to lawyers. We in this country frequently boast that Britain is such a marvellous place to do business because of our great respect for the rule of law and because the Government, unlike some Governments of the world, can be relied on not to make arbitrary and unreasonable acts. It is very difficult to sustain that argument in the light of the Bill now before us. I do not know whether those who envisage doing business in this country will draw that conclusion or not, but we are going against a fundamental interest, not just on this issue but for our wider reputation.
What we are asked to do represents the sort of behaviour that the world associates with despots and autocracies, not with an established democracy nor with the mother of Parliaments. It is a Bill we should not even be asked to confront, let alone pass.
Lord Falconer of Thoroton (Lab)
It is a privilege to follow what the noble Lord, Lord Tugendhat, said, and I strongly agree with it. I will focus on two things in relation to what the Government are asking us to do. Before that, I apologise for not having been here at Second Reading—I, too, was abroad. I declare an interest as a member of the Constitution Committee of this House, which published a report unanimously expressing very considerable concerns about the Bill.
I have two concerns about the Bill. As a nation, we have accepted for the last 70 years that we will not deport asylum seekers to a place where they may face death, torture or inhuman treatment, and that, if asylum seekers feel that that is a risk, they can seek protection from the courts. The courts may well give an applicant short shrift if they do not think there is anything in it, but we have stood by that protection for 70 years and incorporated it into our domestic law in the Human Rights Act 1998. The Bill envisages the possibility—or indeed it being the more-likely-than-not result, according to those who have looked at it independently—that people will be sent to Rwanda, where they will be at substantial risk of being refouled, which means sent back to a place where they could be tortured or killed.
The claim made by the Government is that we have entered into an agreement with Rwanda that says it will not send anybody who comes from here to anywhere except the UK, to which the answer is that given by the international treaties committee: that the reason there was a risk of refoulement was that Rwanda did not even have the most basic system of properly assessing asylum claims. The idea that the Bill envisages—that the moment the new treaty comes into force, it will provide that protection—is absolute nonsense. Everybody appreciates that except, as far as I can see, the right honourable Mr James Cleverly, the Secretary of State for Home Affairs. If we look at the conclusions that the Supreme Court introduced, we see that, factually, it is just a non-starter.
The Government say, and I am sure that the noble Lord, Lord Sharpe, will confirm it on their behalf, that they stand by the commitment we have made for the last 70 years that asylum seekers will not be exported to a place where they might be refouled. If that is their true position, how on earth can they allow this? The international treaties committee also said that, quite separately from the fact that we would need to reform completely Rwanda’s asylum system, we would have to enter into a number of other detailed provisions before it could be seen whether the provision in the new agreement prevented refoulement. Those agreements have not yet been entered into with Rwanda, and there is no requirement for them to be so before the Bill becomes law.
My first big objection to the Bill is that it goes against commitments we have made as a nation and stood by for the past 70 years. If we are looking for solutions to the problems of immigration in the world, turning our backs on all the international agreements that we have made seems a very bad start indeed.
My second big objection to the Bill is that it fundamentally crosses over the separation of powers. The noble Lord, Lord Howard of Lympne, whom I greatly admire—he was a member of our Constitution Committee—said, “Oh, don’t worry. We’re just taking the opinion of the former Lord Chief Justice, who is the dissenting voice in the Court of Appeal”. No, that is not what the Government say they are doing. They are saying, “We’ve taken account of the Supreme Court judgment. We respect that judgment. We’re not going with the former Lord Chief Justice’s judgment; we’re dealing with the points that have been made—and, by the way, dealing with them while not letting anybody question us about that”. That is absolutely not the role of this House or the courts.
What this Bill leads to is Parliament delivering what the noble and learned Lord, Lord Garnier, described as silly, but is so much more profound than silly. I quite agree with him that the beginning of the Bill is very silly in the way that it reads—it is a cack-handed attempt to deliver a judgment, like a court would read—but it is not silly; it is dangerous.
Think of three examples. First, Parliament can say, “Even though we see Rwanda refouling people we are sending, and it is sending Afghans, Syrians and Iraqis back to death or torture, we will do nothing”. We will say that that is okay because we made our judgment that it was a safe country.
That is one example. Let us take another. Suppose the Prime Minister has a friend or a crony in the House of Commons who is convicted in a court of corruption of some sort. The Prime Minister then presents a Bill to Parliament, saying, “It is the judgment of Parliament that Snooks MP actually wasn’t able to present this new evidence to the criminal court that convicted him, so it is the judgment of Parliament that Snooks MP is innocent”. That is the route this Bill takes Parliament down.
Take a third example: the Electoral Commission decides that it will not investigate some problem of, say, not complying with expenses and the courts then say, in relation to that decision, “The Electoral Commission was overinfluenced by party-political considerations”—for example, the governing party was very unkeen for there to be a proper investigation of some expenses fraud in an election, and on judicial review the Electoral Commission’s refusal to investigate was set aside on the basis there was no basis not to investigate. Once again, relying on this precedent, the Government of the day, assuming they have a big majority, can produce a Bill that says, “It is the judgment of Parliament that the courts have got that opinion wrong”—as the noble Lord, Lord Howard of Lympne, introducing a whole new concept in the law, said is the position.
That is the danger of this Bill. I am not sure that I support all my noble friend Baroness Chakrabarti’s solutions—in particular, I am not sure the reference to the United Nations commissioner on refugees is the right source—but, my goodness, if we start letting Parliament make such judgments, we open a door that will be incredibly difficult to close. We in this House surely should not give effect to it.
I have one final point. The noble Lord, Lord Murray of Blidworth, said, “Don’t worry, it’s all Clause 4”. It is not. Clause 4 allows appeals to be made only by people who say something different from “the country is not safe generally”; it is only if there is something specific about them. If, for example, I am a voluble member of the Rwandan opposition and I am then sent to Rwanda, where I may get tortured or killed, then I have a ground, but if I am from Syria or Afghanistan and Rwanda is refouling regularly, I have no basis for appealing.
My first point is that we should stand by our commitments to asylum seekers. My second is: do not listen to this siren song that this is not a fundamental change in our constitution. It is, and it will be the foundation of very bad things to come.
Baroness Jones of Moulsecoomb (GP)
My Lords, I was at Second Reading. I do not know if that makes me less interesting to listen to than the noble and learned Lord, Lord Falconer, and all the rest. I have heard some of these remarks before, of course, but it is always a pleasure to hear them again, if I agree with them. I will say something quite similar to what noble Lords have just heard from the noble and learned Lord, Lord Falconer. I will obviously say it less competently, because I do not have legal training, but what I do have is common sense. I am not suggesting that they are mutually exclusive, but they are two completely different things.
Lord Alton of Liverpool (CB)
My Lords, it is a pleasure to follow the noble Baroness, Lady Jones. I had the privilege of serving as a Cross-Bench member of the Joint Committee on Human Rights, which was referred to by the noble Baroness, Lady Chakrabarti, in her remarks. Indeed, she referred to the 50-page report that was finally agreed by a majority in the committee—it is a majority, not a unanimous, report—on 7 February. It was published today, as others have said, and is available in the Printed Paper Office.
In my remarks, I will say something about what the report has to say about safety. Before doing that, I will agree in particular with the tone of many of the contributions that have been made so far on this group of amendments. As always, my noble friend Lord Hannay put his finger on our international obligations, not least among which is the 1951 convention on refugees. It may well be that this is not written in stone and that there should be attempts to try to change and reform this in the climate of today’s demands—I am happy to give way.
Baroness Ritchie of Downpatrick (Lab)
I thank the noble Lord, Lord Alton, for giving way. He has just referred to international agreements. Would he agree with me, therefore, that this Bill contravenes international agreements such as the UDHR and also the ECHR? I am reminded of the fact that the provisions of this Bill extend to Northern Ireland. Hence, this provision and this Bill undermine the very basis of the Good Friday agreement.
Lord Alton of Liverpool (CB)
I am grateful to the noble Baroness; I was not intending to touch on Northern Ireland, but she is right that this does touch on the Windsor agreement and on our obligations to Northern Ireland, which are separate from those of the rest of the United Kingdom. I commend that section of the report. These are not my opinions; the report does touch on that question.
The noble Baroness also asked about our other obligations. We have many obligations, not just under the refugee convention but under the ECHR, to which she has just referred. The Government on this Bill, as on the Illegal Migration Bill, decline to give a compatibility statement because they cannot say that it will be compatible—although I know Ministers take a contrary view that there is uncertainty around that. However, if there is uncertainty, we must be very careful where we tread.
On the issue of our international reputation, I was very struck by the statement made by the former Prime Minister of Pakistan, which is referred to in the JCHR report. He justified what he was intending to do and has done in sending back 430,000 Afghan refugees to Pakistan. He said it was modelled on what we were seeking to do in the British Parliament. So, even though we know that is casuistry and extreme, nevertheless we can see where this argument can lead and the way in which it be used. So, yes, as the noble Lord, Lord Hannay, said, our international reputation can easily suffer.
The right reverend Prelate the Bishop of Southwark got to the heart of this when he said that legislating that Rwanda is safe does not make it so. The noble and learned Lord, Lord Falconer of Thoroton, touched on that point. Just saying an apple is a pear does not make it such. Saying that a dog is a cat does not make it such. It may be your opinion, but it is not true—and that is surely what we have a duty to try to do in this place.
On process, procedure and governance, during our debates on the Illegal Migration Bill and the treaty, I complained that we had not been treated properly as a Select Committee in the way you would expect Select Committees to be treated. Suella Braverman, the then Home Secretary, declined to appear before the Select Committee. We did not see James Cleverly in the context of this Bill. However, we did see the Lord Chancellor, Alex Chalk, and I pay tribute to him for the way he delivered his evidence and took the questions we put to him. As the noble and learned Lord has just said, it is the duty of the Home Secretary of the day to explain the intentions of legislation. If there is anxiety about something as important as a compatibility statement, they should explain why they feel unable to give it.
My noble friend Lord Anderson of Ipswich rightly said that we are ill-equipped to make these decisions in Parliament. I did not serve as long as the noble Lord, Lord Howard, although we have the distinction of contesting the same parliamentary seat in the heart of Liverpool on separate occasions, or as long as the noble Viscount, Lord Hailsham, but I agree with what the noble Lord, Lord Tugendhat, said about the way in which legislation has traditionally been dealt with in another place and here. I cannot remember Select Committees being treated by Secretaries of State in the way that I have just described. Thinking all the way back to the British Nationality Bill 1981, on which I spoke many times, there were opportunities to hear the arguments, to discuss the implications and to make appropriate amendments. I have not felt that about this legislation or that which preceded it. I think it has been pushed through in a pell-mell way, bringing to mind the thought that, if you enact legislation in a hurry, you will end up repenting at some leisure.
Let me take noble Lords to page 15 of the report, which comes down to the role of the UNHCR and safety. “As of January 2024”, therefore as recently as last month,
“UNHCR has not observed changes in the practice of asylum adjudication that would overcome the concerns set out in its 2022 analysis and in the detailed evidence presented to the Supreme Court”.
The Supreme Court, not the House of Commons or the House of Lords, relied on the UNHCR when it came to a decision about questions of fact. The report states:
“UNHCR notes the detailed, legally-binding commitments now set out in the treaty, which if enacted in law and fully implemented in practice, would address certain key deficiencies in the Rwandan asylum system identified by the Supreme Court. This would however require sustained, long term efforts, the results of which may only be assessed over time”.
Well, clearly, we have not had the time to make those assessments, and again we are being urged to rush pell-mell. I will not detain the Committee much longer. One witness, Professor Tom Hickman KC, said:
“Parliament is effectively being asked to exercise a judicial function, to assess evidence, to look at detailed facts and, effectively, to distinguish the Supreme Court’s judgment, to say that things have moved on and it is not binding on Parliament—I do not mean in a non-legal way—in making its judgment. In my view, that is an inappropriate exercise for Parliament to conduct. It is a judicial function”.
This view was echoed by Professor Sarah Singer, who is quoted in paragraph 57 as saying:
“To contradict the Supreme Court in this way is, perhaps, not showing the respect to the court that should be owed as a constitutional principle”.
I conclude with the summary on page 35, which says:
“We have considered the Government’s evidence that Rwanda is now safe, but have also heard from witnesses and bodies including the UNHCR that Rwanda remains unsafe, or at least that there is not enough evidence available at this point to be sure of its safety. Overall, we cannot be clear that the position reached on Rwanda’s safety by the country’s most senior court is no longer correct. In any event, the courts remain the most appropriate branch of the state to resolve contested issues of fact, so the question of Rwanda’s safety would best be determined not by legislation but by allowing the courts to consider the new treaty and the latest developments on the ground”.
For all those reasons, I believe that the noble Baroness, Lady Chakrabarti, has done noble Lords a great favour in bringing these amendments to us in Committee. She has already shown her willingness to think further about whether they might be applied in other ways. That surely is what Committee stage is all about. The tone that has been struck in the course of this debate behoves noble Lords to think very deeply. I commend this report to the Committee.
Lord Horam (Con)
My Lords, I welcome the point made by the noble Lord, Lord Alton, about the tone of this debate, particularly in relation to the speech by the noble Baroness, Lady Chakrabarti. I warmly welcome her obvious desire to find some way forward in this difficult area, which we certainly need to do, but I am afraid there is a rock—a difficulty—in the way of her amendment. It makes a classic mistake: taking two separate organisations with different objectives and obligations, and placing one with a veto over the other.
According to my reading of the amendment, the UNHCR would in practice have a veto over what the UK Government can do; this is the difficulty. The noble Baroness used the word “stalemate”, but her proposals would also lead to a stalemate while the UNHCR went on for ever, we know not when, saying whether Rwanda was safe. There would be debates, hostilities and probably no eventual consensus as to whether it was safe. Surely a more sensible way forward would be to take existing circumstances and practice, and for each side to engage properly and responsibly with the other.
We have obligations to the UNHCR; we are obliged under the refugee convention to engage with the UNHCR, and so we should. We are obliged to take account of the social and humanitarian consequences for refugees, and so we should. But, equally, the UNHCR should take into account the real responsibility of Governments to defend their borders in the sensible way that their own democracies would expect. If we can get the two working together, something sensible may emerge from that.
It already has in Australia. I wish we would not always be quite so insular. For 10 years now, Australia has been operating an outsourcing policy of the kind to which the UK aspires. It started off in precisely the same way—with precisely the advocates on each side—that we did. In the end, the Australian Government invited in the UNHCR at three different levels: the prime ministerial level, the ministerial level and the ordinary regional level of civil servants and so forth. They came to an agreement on how it should work.
Not only that but the UNHCR, as a consequence of its willingness to get involved, had leverage. It got out of the Australian Government more legal routes for genuine asylum seekers, and the same should happen here. Our legal routes for asylum seekers are at present wholly unsatisfactory, because they are confined to a small number of countries and most countries are excluded.
My view of a proper immigration policy has always been that there should be a settled cap on how many we should bring in, which we put publicly to the people every year in Parliament. Within that cap, the priority should be genuine asylum seekers and only thereafter economic migrants or people joining their families here. That is the right way to approach a total immigration policy, of which this is numerically only a very small part.
Lord Green of Deddington (CB)
My Lords, this has been a long debate and I shall therefore be extremely brief. The right reverend Prelate the Bishop of Southwark spoke powerfully, as have many extremely well-qualified lawyers, so I will not talk about the law. I found myself very much in agreement with the noble Lord, Lord Howard of Lympne. He put important points that I hope will be reflected later in our debates.
We also need to take account of what one might call the real world. I am glad to see that the Opposition Front Bench is being cautious at this point; perhaps that is one of the reasons. The reality is that the Government have lost control of our borders, and even the backlog of asylum seekers is enough to fill the largest stadium in the UK. I regret to say that there is deep public anger, but there is, and we have to take it into account—I am sure that the Commons will—when we take this forward. It is therefore for the Government to take action to bring all this under control and for us to give some advice as to how that could best be done. But let us not lose sight of the fact that this is a very difficult and widely resented situation, and we need to be careful ourselves.
Lord Scriven (LD)
My Lords, I wish to speak to this group of amendments; I apologise to the Committee that I could not be here for Second Reading. Even though I was on the estate, I had a bad chest infection. I was coughing and sputtering, which I did not think would add to the debate, so I listened to it in my office and have subsequently read the Hansard. I was also very proud to vote for my noble friend Lord German’s fatal amendment to the Second Reading Motion. I draw the Committee’s attention to my interests in the register on this issue. I will try not to do a Second Reading speech but to keep my comments to this clause and the amendments.
These amendments are quite important, based on what I would call this candyfloss clause. It is a bit like candyfloss because the Government are trying to make it big, enticing and sweet but, the moment you touch it, it starts to disintegrate as you realise that it is built on nothing. Clause 1(3) says:
“The Government of the Republic of Rwanda has, in accordance with the Rwanda Treaty”—
these are the important words—
“agreed to fulfil the following obligations”.
They have not yet done that, nor given an indication of how they will. It is therefore important, before any person is sent to Rwanda, that those obligations are fulfilled. There also needs to be some form of independent assessment of how that is done.
In the normal course of the rule of law, the courts of this land would make an assessment. The noble Baroness, Lady Chakrabarti, is trying to put in at least some form of independent assessment. People may argue about whether it is independent, but the UNHCR and its role in the legal understanding of refugees and safe countries is well understood. I have a slight problem with the amendment from the noble Baroness, as it involves just one set of evidence and, clearly, courts would normally look at a wider range of evidence. However, it is important that, in Amendment 34, there is a rebuttable presumption. I assume that it would, at some point, give some leeway and a doorway to the courts to test that, so the legality of the decision made by the Executive can be reviewed by the independent judiciary. It will be interesting to see that. That is the aim of the amendment from the noble Baroness.
I ask the Minister, when responding to these amendments, to pick up what my noble friend Lady Hamwee said regarding the incompatibility at times between Rwanda and the laws of this land, and the obligations and treaties that have been signed. Particularly, how will refugees’ claims be assessed in Rwanda? Where there is incompatibility between the laws or obligations of Rwanda and the UK, exactly how will those contradictions be dealt with?
Lord Kerr of Kinlochard (CB)
I think the majority of those who have spoken have apologised for not being here at Second Reading. I am worried; I think I ought to apologise for having been here at Second Reading and for having spoken then and a week earlier on the treaty. I have spoken about the apples and pears, the rule of law and our international reputation, and I do not want to bore the Committee on that anymore.
I think the aim shared by the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Anderson, of making the Bill, if not pointless, harmless—or harmless though still pointless—is impossible in Clause 1. We are dealing with a Bill that is very hard to make acceptable.
I understand what the noble Baroness, Lady Chakrabarti, is hoping to do in her amendments and I share that. We need to take account of the fact that we voted in this House, on the report from the International Agreements Committee, that Rwanda is not yet safe. We did that not in an off-the-cuff way but on the basis of a reasoned report, which was written on the basis of a stack of evidence submitted to the International Agreements Committee, of which I am a member. The House voted that it is not safe; therefore, the noble Viscount, Lord Hailsham, is completely correct: how can we possibly now stand on our heads and say that it is the judgment of Parliament that Rwanda is safe—as if we could do that anyway? We cannot legislate that apples are pears, or cats are dogs. We need to have some sort of triggering or commencement mechanism, which means that the Bill, when an Act, does not come into force until Rwanda can be seen to be safe. The International Agreements Committee set out the 10 areas in which change is required.
I am uneasy about conferring the role on the United Nations High Commissioner for Refugees, although I think that the Government have now accepted that one of his roles is supervising and monitoring the operation of the refugee convention. I am not sure that it is right to ask UNHCR to undertake this task; we are only one of the signatories of the convention, and so is Rwanda. He said in the memorandum that he submitted in relation to the treaty:
“UNHCR has continued to engage bilaterally with the Government of Rwanda on specific incidents of concern, and will continue to offer technical advice and support to the Government of Rwanda to strengthen its asylum system and the protection of all refugees, as part of its mandated responsibilities”.
For us to ask it to act as advisers to us might seem to UNHCR to be difficult—I do not know. I note that UNHCR did not want to give evidence to the International Agreements Committee. It seems to me that it may well feel, “This is something you have to sort out for yourselves—don’t drag me in”. But we need to have someone.
In later groupings, we can consider the proposals for an independent reviewer, or the proposal in the name of the noble and learned Lord, Lord Hope, for using the monitoring committee set up in the treaty for that purpose. I am not sure about that—I am for an independent reviewer myself—but that is for later groupings. But for now I utter a word of caution as to whether this is really appropriate, and whether we would not be talking about a forced marriage. The Government certainly do not want to involve the UNHCR, and I am not 100% sure that the UNHCR wants to get involved either.
For me, the important amendments in this group are Amendments 5 and 6, which say that, instead of having the Bill say that Rwanda is safe, the Bill would say that Rwanda will become safe when the conditions for safety, such as those listed by the International Agreements Committee, are met. That would change the tense from “is” to “will be”—it would be forward-looking. That is where I feel most strongly about the amendments in this group.
Lord German (LD)
My Lords, I draw attention to my interests, in that I am supported by the Refugee, Asylum and Migration Policy Project. We have strayed very widely across the whole of Clause 1 in this debate. Of course, what we are here to do is to discuss the specific amendments before us. However, I start with the assertion that this Parliament finds Rwanda safe. I looked up in the Companion to see what the role is of resolutions of this House, and it is the resolution of this House that is the determination of this House—and the determination of this House at the moment is that Rwanda is not safe. That is the view on which the Government are trying to make us change our minds, so we need to bear that in mind first of all.
The second, broader point that has been drawn out, largely by the noble Lord, Lord Horam, was the issue of offshoring versus offloading. We had that debate at Second Reading, and I think what the noble Lord, Lord Horam, was talking about was offshoring, when you make the determination about whether people are right to come here, and then they come here. But this is not offshoring; this is offloading, whereby the Government hand over the responsibility to another country to be able to accept them, there is no way back, and it is a permanent situation.
Lord Horam (Con)
I think the noble Lord means “outsourcing”, and it is precisely what the Australians do.
Lord German (LD)
Indeed: what the Australians did was to check whether people were ready to come to Australia.
Lord Horam (Con)
They handed that responsibility over to the Government of Nauru and the Solomon Islands.
Lord German (LD)
No, they did not. I am sorry, but the facts are otherwise. The essential point is that they were doing this work—whatever the noble Lord thinks the situation was, it is not what I think, but we can check the facts—in order that people could be admitted to Australia. That was the point; they were doing it somewhere else in order that they could come to Australia.
Lord Coaker (Lab)
My Lords, it is a great privilege to wind up on this group for His Majesty’s Opposition. The quality of the contributions has been truly outstanding. I start by saying to the noble Lords, Lord Green and Lord Howard, that whatever our views on the various amendments in this and the other groups, we are fundamentally and totally opposed to the whole Bill and have voted against it at all stages. That lays out our position fairly clearly.
It was helpful for the noble Viscount, Lord Hailsham, to lay out as we start Committee that this debate is not about whether to stop illegal migration or reduce immigration, but how we do it. This Bill is not the way to do it, so he was right to remind us of that.
We support the thrust of Amendments 3 and 7, as did many noble Lords, including the noble Lords, Lord Anderson, Lord Hannay and Lord Kerr, the noble and learned Lord, Lord Garnier, the right reverend Prelate the Bishop of Southwark and my noble friend Lady Chakrabarti—I will come back to her lead amendment in a moment—because they go to the heart of the Bill. Clause 1(2)(b) replaces a judicial finding of fact with Parliament simply declaring that Rwanda is safe, irrespective of the Supreme Court judgment. I will not go into the legal niceties we have heard, but it seems remarkable to me that Parliament should make a judgment that the court has got it wrong and just change it without reference to the court.
There is a missing word in that paragraph which gives great credibility to many of the contributions made this afternoon:
“this Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country”.
As many noble Lords and the committees that have reported on this Bill have said, this paragraph says that Rwanda is safe now, not that it will become safe. The Supreme Court said that that is the point of difference between them. It has not said that the Government cannot act in this way—I would have thought they would be pleased and say, “Look, the Supreme Court says that what we’re doing conforms with international law”—but that they cannot say that Rwanda is safe now. The Government are saying: “Don’t worry about that; we’ll just pass a law saying that it is”. That is the point of conflict, as it flies in the face of the Supreme Court, the International Agreements Committee and many others.
The contribution of the noble Lord, Lord Tugendhat, was remarkable in its honesty and openness. He said that, as a member of the Conservative Party for decades—I apologise if I get his wording wrong—he was disappointed by the Government coming forward with legislation such as this, which he felt flew in the face of the party’s traditions. He said that Margaret Thatcher herself would have refused it because it flies in the face of her belief that Governments have to act in accordance with the law, or the constitution would be at stake. Many of these amendments seek to reassert the principle that this country has always operated on—that this Parliament operates according to the law. Parliamentary sovereignty is paramount and Parliament can pass what it wants, but as part of that, under our unwritten constitution, there is a belief that it will always operate according to the law even while recognising its sovereign power.
We broadly support much of my noble friend Lady Chakrabarti’s lead amendment. To answer the noble Lord, Lord Howard, my noble friend, in the spirit of Committee, said that if she has not got the amendment completely right, it might need to be changed. That is the whole point of Committee; she accepted that he might have a point and that making the UNHCR the sole body advising the Government or preventing them from acting might not be the best way forward.
Many noble Lords, particularly the noble Baroness, Lady Helic, my noble and learned friend Lord Falconer and my noble friend Lady Chakrabarti, drew attention to a point in Amendments 1 and 2. This may be flowery language that Governments put at the front of Bills—I am sure that we did it in government and may well do it again when, I hope, we are in government in future—but Amendment 1 would add
“the purpose of compliance with the rule of law to that of deterrence”,
and Amendment 2 says:
“The second purpose is to ensure compliance with the domestic and international rule of law”.
That is the fundamental point. Any Bill we pass into law should be compliant with international law. That is why our country has such standing across the world. What on earth are we doing? The UNHCR has said that the Bill is not compliant with the refugee convention, and that is why Amendments 1 and 2 are so important. Do we not care that the UNHCR has said that? Is it of no consequence to us? Have we gone beyond caring? Are we not bothered? Are we saying it is simply an irrelevance? If that is so, I honestly cannot believe that that is the way we want our country to go.
What are we doing? Ministers have stood at the Dispatch Box and said, with respect to Putin and Ukraine, that we are not going to stand for someone driving a coach and horses through the international rules-based order. That is what the country has always stood for and what we are proud of. Therefore, we are going to continue that tradition. We are right to do so. Why are we taking action against the Houthis in the Red Sea? Last week, I heard the Minister, the noble Earl, Lord Minto, say that it was because are not going to allow a group of terrorists to hold the world’s trading system to ransom and break every single rule of the international rules-based order.
These are the rules we adhere to and conventions we have signed. As a sovereign Parliament, we took the decision that, in certain areas of international life, it is better to pool sovereignty and stand together; that is the way to overcome common problems, not to retreat into your own country. That is why the compliance with international law is important. The amendments in the names of the noble Baroness, Lady Chakrabarti, the most reverend Primate the Archbishop of Canterbury, the noble Viscount, Lord Hailsham, and others, seek to say—as a point of principle—that a Bill dealing with migration, refugees, asylum or whatever should comply with international law.
I am astonished and astounded and find it unbelievable that His Majesty’s Government have to be reminded that we want our Government to comply with international law. I would have thought that was a statement of the obvious. I would have thought it was something around which we could unite, no matter our party or faith. We could have stood together and said that is why we are proud of our country.
What are we going to say when we go to the United Nations, the Council of Europe, the Commonwealth, the EU—if we still have talks with it—NATO or any other part of the world where there is an international organisation? How on earth can we lecture those people about conforming to the international rules-based order when we are prepared to drive a coach and horses through it ourselves? That is why much of what the noble Baroness, Lady Chakrabarti, and many others have said in their amendments is so important. The Government may dismiss it, but they will not win the argument on this one.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank all noble Lords who have spoken in the debate. The overriding purpose of the Bill is to ensure that Parliament’s sovereign view that Rwanda is a safe country is accepted and interpreted by the courts to prevent legal challenges which seek to delay removals and prevent us from taking control of our borders.
Amendments 3 and 7, in the name of my noble friend Lord Hailsham, suggest that the legislation is replacing a judicial finding of fact. The Government respect the decision of the Supreme Court in its judgment. However, the judgment was based on information provided to the court on Rwanda up until summer 2022. Their Lordships 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 Rwanda, which responds to and resolves the concerns raised by the court. Alongside the treaty, the Government have also introduced the Safety of Rwanda (Asylum and Immigration) Bill, which buttresses the treaty, and supports the relocation of a person to Rwanda under the Immigration Acts.
It is our view that Parliament and the Government are appropriately equipped to address the sensitive policy issues involved in this legislation and, ultimately, tackle the major global challenge of illegal migration.
Viscount Hailsham (Con)
On that point, would my noble friend consider a domestic assessor—for example, the Joint Committee on Human Rights? If it were to advise, would he accept that?
Lord Sharpe of Epsom (Con)
My Lords, one of the groups that we are coming on to looks at the organisations and committees that are set up under the treaty. We will return to that discussion about the provisions of the treaty in respect of what my noble friend has just asked. As I say, it would not be right for the delivery of our policy, which is key to our commitment to stop the boats, to be left solely dependent on this.
Amendments 11 and 12 tabled by the noble Lord, Lord German, seek to ensure that individuals relocated to Rwanda must have any asylum claim determined and be treated in accordance with the UK’s international obligations. This is unnecessary in view of the comprehensive arrangements that we have in place with the Government of Rwanda. It is important to remember that Rwanda is a country that cares deeply about supporting refugees. It works already with the UNHCR and hosts more than 135,000 refugees and asylum seekers and stands ready to relocate people and help them to rebuild their lives.
We will get on to this again in a later group, but I remind the Committee that the UNHCR has signed an agreement with the Government of Rwanda and the African Union to continue the operations of the emergency transit mechanism centre in Rwanda, which the EU financially supports, having recently announced a further €22 million support package for it. Indeed, as recently as late December, the UNHCR evacuated 153 asylum seekers from Libya to Rwanda.
The noble Baroness, Lady Hamwee, asked about the international agreements that Rwanda has signed. That is dealt with at paragraph 25 of the policy statement. I will read it for convenience:
“Rwanda is a signatory to key international agreements protecting the rights of refugees and those in need of international protection. It acceded to the Refugee Convention, as well as the 1967 Protocol, in 1980. In 2006 it acceded to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Conventions on the Reduction of Statelessness. Regionally, it is a signatory of the Organisation of African Unity Convention on Refugees in Africa and the 2012 Kampala Convention”.
Paragraph 26 goes on to say that:
“Rwanda’s obligations under these international agreements are embedded in its domestic legal provisions. The Rwandan constitution ensures that international agreements Rwanda has ratified become domestic law in Rwanda. Article 28 of the constitution recognises the right of refugees to seek asylum in Rwanda”.
The presumption which appears to underpin this amendment is that Rwanda is not capable of making good decisions and is somehow not committed to this partnership. I disagree. Rwandans, perhaps more than those in most countries, understand the importance of providing protection to those who need it. I remind the Committee that my noble friend Lady Verma spoke very powerfully on that subject at Second Reading.
The core of this Bill, and the Government’s priority, is to break the business model of the people smugglers. That will not happen if we undermine the central tenet of the Bill, which is the effect of these amendments, and a point that was well addressed by my noble friend Lord Howard. We are a parliamentary democracy, and that means that Parliament is sovereign. Parliament itself is truly accountable, and I therefore invite the noble Baroness, Lady Chakrabarti, to withdraw her amendment.
Baroness Butler-Sloss (CB)
Clause 1(2)(b) says that Rwanda is a safe country, so why is Clause 1(3) necessary?
Lord Sharpe of Epsom (Con)
Clause 1(3) is just a simple restatement of the various facts of the Bill.
Lord Hannay of Chiswick (CB)
My Lords, the noble Lord has rather disappointed me, because he declined totally to address any of the points that your Lordships’ House voted for a few weeks ago—in particular, the 10 criteria by which it would be possible to judge whether the Government’s statement that Rwanda was a safe place was actually true or not. Could he now stand up and deal with those 10 criteria? It would be quite interesting for the Committee to have his account of the Government’s view of those criteria and whether they have been met; if they have not, when they will be met; and what tests they will put them to.
Lord Sharpe of Epsom (Con)
My Lords, this is Committee, and I am speaking to the various amendments in this group. As I have just reminded my noble friend Lord Hailsham, we will get to another group which debates the clauses in the treaty—as regards the various committees and so on that are in place—later in the day.
Baroness Hamwee (LD)
My Lords, I know it is very boring, but could the Minister respond to my question about the legal status and the effect of Clause 1? I am still not clear what attention we should pay to it, were we to be in very formal proceedings rather than debating the situation broadly. In other words, if there is a breach of Clause 1—I do not know whether it can be called a breach; if there is no compliance with Clause 1—then what, in formal legal terms?
Lord Sharpe of Epsom (Con)
My Lords, it is simply the introduction to the Bill, so I am not entirely sure I get the drift of the question of the noble Baroness.
Lord Alton of Liverpool (CB)
My Lords, before the noble Lord concludes, can he say whether he will be formally responding to the Joint Committee on Human Rights, especially before we reach Report?
Lord Sharpe of Epsom (Con)
I have not yet had a chance to read the report, which I believe was published only today, but I will of course read it in due course and respond accordingly.
Lord Paddick (Non-Afl)
My Lords, the Minister seems to rely on the emergency transit mechanism on which Rwanda works with the UNHCR. Can he confirm that this mechanism—which has a maximum capacity of 700—is a temporary processing point for asylum seekers from Libya, and that none of the 1,453 evacuated to Rwanda has actually opted to stay in the country?
Lord Sharpe of Epsom (Con)
My Lords, I do not rely on that at all. As I tried to explain, a variety of aspects of the UNHCR’s work are included in our safety assessment—and that is just one of them.
Lord Garnier (Con)
I apologise for interrupting, because I know that my noble friend the Minister wants to sit down for good. When he spoke to Clause 1(2)(b), was he speaking for Parliament or the Government?
Lord Sharpe of Epsom (Con)
As my noble and learned friend is aware, I speak for the Government.
Lord Falconer of Thoroton (Lab)
Can the Minister indicate when the Government will respond to the report on the Bill by the Constitution Committee of this House?
Lord Sharpe of Epsom (Con)
I am afraid that I do not know; I will find out.
Baroness Chakrabarti (Lab)
I am grateful to all Members of the Committee from around the Chamber for the constructive manner and tone with which these proceedings on the first group have been conducted. Noble Lords will forgive me if I do not mention every excellent contribution; they will understand that is not a discourtesy to Members of the Committee, but, I hope, a bit of kindness to those who have amendments to follow this evening.
I am particularly grateful to the noble Lord, Lord Howard of Lympne, for following immediately, because he was able to crystallise some key issues between us, on my suite of amendments as well as on all the others in the first group. In essence, he had two points: one that I can embrace to some extent, and another that I cannot. I think that he was the first to point out that, in the way that I have formulated my suite of amendments, I have given perhaps too determinative a role for the UNHCR. I explained the reason for that: it was because the Prime Minister said that he was going to assuage the concerns of the Supreme Court. None the less, I take the noble Lord’s point—which was echoed by subsequent speakers, if less robustly—so I hope not to create a determinative role for the UNHCR in the next stage of proceedings, although I also note that many Members of the Committee, including the Minister, referred to the important part that the UNHCR plays in the world on refugees and the convention.
However, the second crucial point—
Lord Howard of Lympne (Con)
Before the noble Baroness goes to the point where she disagrees with me, I thank her for her response to the first point I made. Of course, I do not speak for the Government, but no doubt we will consider the matter further when we get to Report.
Baroness Chakrabarti (Lab)
My Lords, I am again grateful to the noble Lord. However, his second central point was the big constitutional one: that Parliament is sovereign—that is pretty much it—and that the Supreme Court’s decision on 15 November was mere opinion rather than a determinative finding of fact in our system. I am afraid that I must disagree with him on that, in essence for the reasons outlined later in the debate by my noble and learned friend Lord Falconer. He in turn echoed some of the points made by the noble Lord, Lord Clarke of Nottingham, at Second Reading about the dangers that lie in the future should it be possible, in our country, for Governments with large majorities, of whatever stripe, to use legislation to change not only any old finding of fact but a finding of fact that was made recently by our highest court. That is not only silly, to echo the noble and learned Lord, Lord Garnier, but very dangerous in a democracy that is built, fundamentally and first, on the rule of law. Parliamentary sovereignty follows, but Parliament, and the Executive in particular, must have a little respect for the independent referees of our democratic system.
I was grateful to the noble Baroness, Lady Helic, for making the international point that follows from that: that the domestic rule of law is the bedrock of our system, but a quarter of the way into the 21st century, so is the international rule of law. All sorts of terrible consequences come when we do not respect that. She cited wars of aggression and war crimes that, in turn, drive a displacement of people that is leading to the refugee crisis that Governments around the world are trying to respond to. Therefore, she is a great proponent of the international rules-based order, as we know from her other work.
Lord German
Member’s explanatory statement
This amendment, along with Lord German’s amendments to Clause 2, page 2, line 33; Clause 2, page 2, line, 39; Clause 2, page 3, line 3; and Clause 9, page 6, line 38 provide that it is the Secretary of State’s judgement that Rwanda is a safe country and for this judgement to be linked to commencement of the Act. This suite of amendments provides criteria for how that judgement may be made, including compliance by the UK and Rwanda of their obligations under the Treaty in furtherance of the rule of law.
Lord German (LD)
My Lords, in moving Amendment 4, I will speak also to a suite of amendments which go throughout the Bill. Perhaps that indicates the way in which all these things are interconnected, because this suite of amendments will deal with a lot of the concerns that were raised in the Committee in the course of group 1 and will be relevant to any changes that we might pursue on Report.
In summary, these amendments remove the absolute nature of the declaration that Rwanda is safe; enable the courts to consider the safety issue; require the Secretary of State, not Parliament, to judge when Rwanda is safe; and ensure that all the measures this House has considered in its resolution of the treaty are operational and functioning according to our international obligations before the Secretary of State can lay a commencement order before Parliament.
As we have heard, the Bill deems Rwanda to be safe regardless of whether it is in fact safe, and this House has already determined that it is not yet safe. Unlike the use of deeming clauses in domestic legislation, this deeming subclause is being used alongside an international obligation. However, as the Bar Council, among others, points out in its evidence to the JCHR, deeming Rwanda to be safe in order to meet the UK’s international obligations under the ECHR and the refugee convention steps outside the domestic use of deeming clauses. This is particularly so when you take into account the conclusions reached by the UNHCR that the Bill, as well as the treaty,
“does not meet the required standards relating to the legality and appropriateness of the transfer of asylum seekers and is not compatible with international refugee law”.
If the arguments which the Government put forward about it being in the context of international laws are true, why do they not let the courts have their say, finally, about this matter?
Some on the government side are comfortable about overriding our international obligations, maintaining that it is perfectly acceptable to be incompatible with international rules, laws, commitments and obligations of which we are part. I am not a lawyer, but, having read all the evidence given to committees of this House and the other House, and from all the people who have put evidence before us, it seems they represent a minority of legal opinion, and we have witnessed incredible displays of legal acrobatics, most of it on the head of a pin.
Fundamentally, based on Article 27 of the Vienna Convention on the Law of Treaties, no rule of a state’s internal law can be used to justify a breach of an international obligation. Further, as our own Constitution Committee states, to legislate in this way could undermine our constitutional principle of the rule of law. Back in 2020 and again recently it said that
“respect for the rule of law requires respect for international law”.
Today we have that view expressed by the report of the JCHR.
We will hear much more on the rule of law and the words of Dicey. However, this suite of amendments, taken as a whole, will ensure adherence to the rule of law, reinstate the role of the courts, protect human rights, and meet our international obligations. Fundamentally, these amendments seek to safeguard and uphold the UK’s constitution and the rule of law. It is deeply problematic that the terms of the UK-Rwanda agreement have not yet been met, especially as the Government have deemed it as the basis for the declaration in the Bill that Rwanda is in fact safe. In fact, in their own policy statement the Government refer to “assurances and commitments”—those are not things that are happening at this moment.
Through these amendments we seek to ensure that the final arbitration on the safety of Rwanda lies ultimately with the judiciary and not with Parliament. The Secretary of State would come to a decision on the safety of Rwanda but the legality of this decision can be reviewed by the judiciary. This would enable the proper role of the independent judiciary—our domestic courts and tribunals—to review the legality of the Secretary of State’s actions and decisions. The amendments in this suite would mean that the Secretary of State should deem Rwanda safe only if it is safe for every person of every description: women, people of all ethnic minorities and religions, LGBTQI+ people, those in power, those whose political opinion differs from those in power, and every nationality. In coming to their conclusion, the laws of Rwanda and how they are applied should be scrutinised, together with evidence from international bodies and civil society organisations.
The Act could come into force only when the steps set out in Amendment 84 had been met—the Minister spoke of that amendment earlier; we have reached it already. In replying, can the Minister tell the Committee— I think this was a question from the noble Lord, Lord Hannay, as well—which of the matters listed in Amendment 84(1A)(c) are currently in place, which of them will be in place soon, and which will be operational on the date the Government think the Bill will be enacted? For those who have Amendment 84(1A)(c) in front of them, it is the 10 issues raised by the committee which reported to this House on the treaty.
As this House has determined in its resolution on the treaty, it is critically important for the safety of those concerned that any assessment of safety is completed before this Bill comes into force. The judgment on whether Rwanda is safe could be one of life and death. The Supreme Court has already made a factual assessment. Parliament should not be legislating to reverse the Supreme Court’s factual assessment while tying the hands of the judiciary and requiring them to ignore facts placed before them.
Lord Murray of Blidworth (Con)
I thank the noble Lord for giving way. He has said repeatedly that the Supreme Court has held as a fact that Rwanda is an unsafe country. If one looks at the judgment of the Supreme Court, in paragraph 105 the noble Lord will see that the noble and learned Lord, Lord Reed, the president of the Supreme Court, said that Rwanda was unsafe at the time that the Divisional Court was considering the evidence. As my noble friend the Minister said on the last group, the short point is that the question which this Parliament is determining as to the safety of Rwanda is in light of the new arrangements.
Lord German (LD)
As the noble Lord will know, the other clause in the Supreme Court judgment, which he did not refer to, said that it will take a considerable time for those matters to take place. That is why I have asked the Minister in this Chamber, having heard the views of the treaties committee of this House and the matters which it raised after taking evidence last month, whether the provisions in Amendment 84 which are proposed for new Clause 84(1)(c) are in place now. Are they operational? Which ones will be in place, and by when? If we follow the noble Lord’s remarks, that is the judgment that we are trying to make now.
Viscount Hailsham (Con)
It is not only a question of whether they are in place but whether Rwanda is compliant and remains compliant, and whether there are any other reasons to doubt the safety of Rwanda.
Lord German (LD)
Indeed. That is why, in this suite of amendments, the Secretary of State has to take the advice of a number of organisations—not one in particular but a number of organisations. The Secretary of State must produce the evidence to show that the requirements are in place, operational and working according to the decisions that were originally in place as wanting to see this thing through.
Lord Falconer of Thoroton (Lab)
Is it right that what the noble Lord perhaps had in mind when referring to the Supreme Court judgment was its words that the problems in Rwanda were not a lack of good faith on the part of Rwanda but
“its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement … and the scale of the changes in procedure, understanding and culture which are required”?
The noble Lord, Lord German, might also have had in mind that the Supreme Court identified
“a culture within Rwanda of, at best, inadequate understanding of Rwanda’s obligations under the refugee convention”.
Would it be the case that the noble Lord, Lord German, might also have been rather worried that simply having to agree that “We won’t refoule” from a date which I assume would be about a month or two from today sits rather unkindly against that assessment by the Supreme Court? Am I also right in saying that the noble Lord, Lord German, would have been very heartened by the noble Lord, Lord Sharpe, who said that he accepted all that the Supreme Court had said?
Lord German (LD)
My Lords, I am loath to say “yes” to a leading question from a leading lawyer, but he is absolutely right, of course. For those words added to what I said earlier and paragraph 104, which we have already had referred to, the
“necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring”.
If you read the Supreme Court judgment, you will know what we have to test in order to prove Rwanda’s safety. That is what the committees of this House have been trying to do.
This suite of amendments turns it all around. It says that it is the judgment of the Government, which they would have to bring forward in an order for the House to accept, but before that they would have to address all the issues in Amendment 84 which are proposed for new Clause 84(1)(c). They would also have to consult and be certain that they had made the case. If, at the end, Parliament approved the order that the Government had put before it, the courts could intervene and test it on the basis of fact. That is our current procedure for dealing with issues of this sort. I am loath to say that this is back to the future, but it is keeping in track where we stand as a Parliament—how we make decisions, where they are tested and whether they can be tested in the courts.
We cannot allow a dangerous precedent to be set with this overreach of Parliament’s role. The courts need to remain as the check and balance on the exercising of the Secretary of State’s power. Parliament cannot be allowed to overturn the evidence-based findings of fact made by the highest court in the UK, given that this Bill is there for ever and does not look at what happens in the future. We need to stand firm against the Government’s attempt to subvert the separation of powers in this country. Today, this is about asylum seekers; tomorrow, this precedent will be applied to the next group who find themselves as the latest scapegoats of the Government.
I end with the words of the late Lord Judge in this Chamber. I sat here listening to him and I hear those words echoing in my head now. He said:
“the rule of law is a bulwark against authoritarian incursion, and even the smallest incursion threatens it”.—[Official Report, 19/10/20; col. 1286.].
Those are wise words. This suite of amendments seeks to uphold the principle that he espoused so powerfully. I beg to move.
Lord Inglewood (Non-Afl)
My Lords, I regret that I was not able to take part in discussion on the previous group because I was on the train as it began.
The point that has been made here is an important one, which I did not hear elaborated on during the debate on the first group. Without wishing to disparage Rwanda in any way, countries in that part of the world do have a habit from time to time of changing their regimes, and those regimes often have very different characteristics. If you are approaching this problem, which seems to me entirely reasonable in normal circumstances, that the country where the asylum seekers end up should be safe, it does not follow that once it has been ruled to be safe it then continues to be safe. The problem with Clause 1(2)(b) is that, if the wording remains as it is now, even if you go through the procedures that the noble Lord, Lord German, is discussing, once there has been a ruling that the country is safe then there is no means to return to the question if circumstances fundamentally and damagingly change.
Viscount Hailsham (Con)
I commend to my noble friend the concept of the rolling sunset, which he will find in Amendments 81 and 82.
Lord Falconer of Thoroton (Lab)
I am very interested in the amendment tabled by the noble Lord, Lord German. On one view, it is saying that the Secretary of State makes his or her decision only after properly considering all the relevant factors. It may be that what he has in mind is that, thereafter, there can be appropriate review of that by the courts. I assume that he has in mind judicial review. Therefore, it would be the decision of the Secretary of State that was judicially reviewable. It is worth thinking about whether, once that decision had been made and then upheld by the courts because there was a proper basis on which a Secretary of State could reach that decision, in general terms the question of whether the country was safe would not thereafter be open to consideration by the immigration office.
I would not be in favour of that as a matter of principle, but if one is looking for a compromise—this is something that the noble Lord, Lord Anderson of Ipswich, touched upon, and it may be dealt with in later amendments—I would be very interested to hear what the view of the Government is in relation to a situation where, in effect, the Secretary of State had to make a proper decision addressing the proper considerations and that decision was then open to judicial review. Could that be a compromise?
Lord Howard of Lympne (Con)
My Lords, I had not intended to speak on this group, but the noble and learned Lord, Lord Falconer, has just raised an extremely interesting point. He suggested that a decision by the Secretary of State, having considered the factors referred to by the noble Lord, Lord German, should be subject to judicial review. The principles of judicial review are clear: the court does not substitute its own view of matters; it assesses whether the Secretary of State came to a reasonable decision.
Departing somewhat from the Government’s view, one of the problems that I have with the Supreme Court decision is that it was not based on the principles of judicial review. The Divisional Court did approach it on that basis and the Supreme Court said that that was wrong. The Supreme Court, relying on precedents that had never received the authority of Parliament or statute, decided that it should not apply the principles of judicial review, but should decide these matters for itself. That is a very important distinction between what happened in this case, which gave rise to this legislation, and the procedure now being proposed by the noble and learned Lord, Lord Falconer.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise with some hesitancy, in the middle of a rather technical debate, but I would like to make a couple of points on this group. The Committee has already heard from my noble friend Lady Jones of Moulsecoomb who, in her inimitable way, made it very clear that the Green Party remains utterly opposed to the entire Bill and greatly regrets that we gave it a Second Reading—but we are where we are.
From listening to the debate on the first group, a word that came up again and again, which might be surprising to people listening from outside the Committee, was “silly”. Of course, what we are talking about is deadly serious, but the definitions of “silly” are interesting, if you look them up. One is “showing a lack of common sense or judgment”. Common sense and judgment are two things that this group of amendments seeks to introduce to the Bill, so I commend the noble Lord, Lord German, for introducing it so clearly and the noble and learned Lord, Lord Falconer, for his excellent assistance in presenting the argument.
It is a statement of the obvious that Parliament, and certainly your Lordships’ House after our vote on the Rwanda treaty, does not believe that what the Bill states is common sense. It is not based on the evidence and has been disproved. More than that, these amendments are making a person, the Secretary of State, responsible for making a judgment. If we are to have the rule of law, a person has to be identified and held responsible for making that judgment. We are introducing a sense of responsibility and evidence here, which would at least be a step forward.
Lord Purvis of Tweed (LD)
My Lords, I speak briefly in support of my noble friend Lord German. It has been a short debate, in comparison to that on the first group, presumably because some have now given their Second Reading speeches on this Bill and that is sufficient for them. We will just have to go through the grind. It has, nevertheless, been an interesting debate.
I will pick up on the point made by the noble Lord, Lord Howard. Of course, members of the Supreme Court are not here to answer questions, but I understand that they considered whether the Divisional Court was correct in deciding whether Ministers had followed an incorrect process, under law. The Supreme Court’s view was that the question to answer was whether issues of fact on refoulement, which was the origin of the appeal, were to be determined. That is why the Supreme Court made the decision that it did, and that is the relevant part of judicial review. I do not think that the relevant part of judicial review for the Bill is the Supreme Court’s judgment, but that judicial reviews of the process that decision-makers had followed in deciding to relocate anybody to Rwanda can no longer be carried out. That will now be prohibited which, if I may say so, is a major constitutional step, which the Bingham Centre and many others have warned against. I suspect we will hear that in other groups of amendments and, for me, that is the important part of judicial review.
Viscount Hailsham (Con)
I know I am going slightly outside the ordering of clauses, but Amendments 81 and 82 to Clause 9 address the very difficulty that the noble Lord has identified. Circumstances can, and almost certainly will, change. We need to put rolling sunsets in place so that the Bill is never in force for more than, let us say, two years, and that each time it is extended there is a proper assessment of the safety of Rwanda, its compliance with treaties and, incidentally, whether the policy itself is succeeding.
Lord Purvis of Tweed (LD)
I am grateful to the noble Viscount. I listened carefully to what he said, including at Second Reading, and when he comes to make the case I will also listen carefully for that. If he will forgive me for saying so, we will be into the categories of plan C, D, E and F to try to make the Bill a bit better. I refer to the comments by the noble Lord, Lord Kerr, on the first group. These are all silk purse amendments, are they not? We are desperately trying to make something better that, in our hearts, we know cannot be better. We are trying to just take the rough edges off it slightly.
Our approach in this group is to revert the Bill to long-standing common practice for asylum laws that Ministers on those Benches have regularly said is the proper procedure, because it includes executive decision-making, parliamentary approval and then judicial review. That is what we are saying should be the case, because that is what, for years, Ministers have said is the case. We are seeking to restore that. Amendment 84 requires Ministers to report on these areas.
I wrote to the Foreign Secretary in December asking a whole series of questions regarding the treaty. The noble Lord, Lord Sharpe, gave me the courtesy of a substantive reply, and I am grateful for it. I asked specifically about when some of the mechanisms of the treaty would be in operation—for example, on the capacity for decision-making processes in Rwanda, for us to determine whether it would have the capacity and therefore be able to be safe. The noble Lord replied: “Some of the newer mechanisms will be finalised before operationalisation”. I want to know when. The Government are clearly working on it. They must have a working assumption of when they will be in place—so tell us. If the Government are saying that we are the determining body, tell us when those procedures will be in place. They cannot have it both ways and say that we are the determining body but they have the information—that does not cut it any more. If we are the determining body, we must have the information.
This is why I asked about when the judges will be in place. Under the treaty, judges who are not Rwandan nationals will have to be trained on Rwandan law, not UK law. The noble Lord, Lord Horam, who is not in his place, was completely wrong in the debate on the first group about this being similar to the Australian processes. The people who will be relocated will be processed under Rwandan law, not British law, so the judges will have to be trained on it. I asked when that will be complete, because we are obviously not going to relocate an individual where there will be a panel of judges to process them who are not sufficiently trained in Rwandan law. I am sure everybody will agree with that.
The noble Lord, Lord Sharpe, replied: “The proper procedures, facilities and support for relocated individuals, with regard to the judges’ training, will be in place before they are relocated to Rwanda”. The Prime Minister, who bet Piers Morgan that the flights will leave, obviously knows when the judges will be trained—so what is the working assumption of when they will be trained?
I am desperately trying not to make this a silk purse exercise. We are fully in an Alice in Wonderland situation here. In the debate on the earlier group, the Minister said that because things have changed, we should now look at the new country note. The new country policy and information note version 2—and version 2.1 in January, which he was referring to—supersedes the summer 2022 country note. The Minister is saying that the old note should not be taken into consideration because there is a new note—and, if we want to refer to the UNHCR’s up-to-date position we should, as we heard him say, look at annexe 2 of that report. Not only have I read the country policy notes front to end, I also clicked on the annexe 2 links—anybody can do it now on their smartphone. A box comes up with a note that the publication was withdrawn on 11 December 2023. The publication the Minister referred to, which was withdrawn, was from May 2022, which the Supreme Court used as its evidence for the UNHCR.
If we are to be the decision-making body, how on earth are we going to be making decisions when the Government do not tell us even the basic information of when they—not us—think Rwanda will be a safe country?
Lord Ponsonby of Shulbrede (Lab)
My Lords, as the noble Lord, Lord German, said, there is a suite of amendments in this group that, in many ways, cover the same ground as the first group. It is clear from this short debate, as well as the first, that this debate—approaching the Bill by ensuring that the terms of the treaty are being properly adhered to; essentially, we are debating the mechanism for how best to do this—will dominate the whole Committee stage. I hope colleagues can work together to return the best possible solution on this issue.
In the same way that the Opposition do not wish to delay the Bill’s passage, we do not want to create barriers for the scheme to start. Our focus should be on how we monitor and judge the safety of Rwanda, who monitors it, and what should happen if Rwanda is judged not to be a safe country for those being removed to it.
The noble Lord, Lord German, introducing Amendments 4 and 17, said there should no commencement of the Act until Rwanda is deemed a safe country. A number of noble Lords spoke at length on proposed new subsection (1A)(c) in Amendment 84, which are the 10 issues raised by the committee of this House about how that might be achieved. The noble Lord looked at how that might be done, how many of those elements are in place, which are operational and—perhaps more fundamentally—whether Rwanda has the practical ability to fulfil the undertakings in a more long-term way. That is really the point that the noble Lord, Lord Inglewood, made in his brief contribution to this group.
My noble and learned friend Lord Falconer speculated that the Secretary of State could, after making a decision, be open to judicial review. The noble Lord, Lord Howard, said that the Supreme Court did not use the principles of judicial review when it made its decision, but decided the case on first principles. Both my noble and learned friend and the noble Lord are well above my grade in legal matters, but it seems to me that this is another example of possible compromise as we move forward—as there were possible areas of compromise discussed in the debate on the first group.
The noble Lord, Lord Purvis of Tweed, gave his customarily extremely articulate speech on the various provisions in proposed new subsection (1A)(c) in Amendment 84. He spoke of making a silk purse out of a sow’s ear and went through various ways in which that might be achieved—although he made his reluctance to do so very clear. The noble Viscount, Lord Hailsham, spoke about his Amendments 81 and 82, on the rolling sunsets, as he described them, which we will get to on a subsequent group.
So, really, this whole group is trying to make sure that the Government are properly held to account. As I said in my introduction, our focus will be on how to monitor and judge the safety of Rwanda, who monitors it, and what Parliament’s role is in that, rather than putting up a barrier against the Bill itself.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, I am grateful to all noble Lords who contributed to this debate, and in particular to the noble Lord, Lord German, for opening. I acknowledge the spirit across the Committee of approaching this matter by looking to see what can be amended and not setting out to wreck the Bill, as the noble Baroness, Lady Chakrabarti, said on the first group.
Baroness Jones of Moulsecoomb (GP)
I would like to wreck the Bill—just so the Minister knows.
Lord Stewart of Dirleton (Con)
I accept that and I did hear the noble Baroness make that point from the Benches opposite.
Since summer 2022, when judicial review proceedings in relation to the migration and economic development partnership began, the United Kingdom and the Government of Rwanda have worked to refine and improve that partnership. This has strengthened not only the operational readiness of Rwanda to receive and support migrants relocated under the partnership but the legal footing of the agreement and the commitments both sides undertake to ensure that national and international obligations and standards are met, having scrutinised closely and carefully all the circumstances of the country and information from appropriate sources.
Rwanda has a long history of supporting and integrating asylum seekers and refugees in the region. It has also been recognised internationally for its general safety and stability, strong government, low corruption and gender equality. I quote from what the Kigali-based comprehensive refugee response officer, Nayana Bose, of the UNHCR said in December 2021—mark the date:
“Rwanda has done an excellent job integrating refugees in the national education system, including urban refugees in the national community-based health insurance plan, providing them with national ID cards and offering them livelihood opportunities”.
As the Committee is aware, the Bill is underpinned by the treaty, Article 10 of which in particular sets out the assurances for the treatment of relocated individuals in Rwanda, including abiding by the refugee convention in relation to those seeking asylum. Furthermore, pursuant to Article 3 of the treaty, the parties agree that the obligations therein
“shall be met in respect of all Relocated Individuals, regardless of their nationality, and without discrimination”.
Under this commitment, Rwanda will treat all groups of people fairly. We have assurances from the Government of Rwanda that the implementation of measures within the treaty will be expedited. The treaty will follow the usual process with regard to scrutiny and ratification. I note that amendments tabled by noble Lords on this topic will be debated in the group to follow.
Amendment 17 would also oblige the Secretary of State to consider Rwanda safe only if it was deemed so for every descriptor of person as set out in Section 7(3) of the Illegal Migration Act. In relocating individuals to Rwanda, decision-makers will make a case-by-case decision about whether there is compelling evidence that the particular circumstances of each case would mean an individual would be at risk of serious and irreversible harm were they to be relocated to Rwanda. This means that each person’s circumstances are considered before relocation. We therefore consider the amendment unnecessary.
Amendments 24 and 27 relate to the roles of courts and tribunals. It is important that we recognise that these are considered decision-makers in relation to relocating individuals to Rwanda, and they may have a say in it.
Amendment 27 in particular would place an obligation on courts and tribunals to consider any claim that Rwanda may breach its international obligations by removing an individual to a country that was unsafe for them; that an individual may not receive fair and proper consideration of their asylum claim; and that Rwanda will not act in accordance with the terms of the treaty. This obligation is unnecessary. Rwanda is as committed to this partnership as we are. We have worked closely together to build this partnership and have trust that the commitments in the treaty will be upheld. That is why we have introduced the Bill, which reflects the strength of the Government of Rwanda’s protections and commitments given in the treaty, allowing Parliament to confirm the status of the Republic of Rwanda as a safe third country.
The noble and learned Lord, Lord Falconer of Thoroton—I speak to his later contribution, rather than when he was assisting the noble Lord, Lord German, with legal analysis—posed the question of whether judicial review might be applicable. My noble friend Lord Howard of Lympne took up that point as well. On that aspect, I refer noble Lords to the terms of Article 22 of the treaty, which provides:
“In the event of a dispute arising out of or relating to this Agreement, including any question regarding its existence, validity, termination, interpretation or implementation, the Parties shall refer the dispute to the Joint Committee which shall meet within 14 … Working Days to discuss and seek resolution to the dispute by consultation”.
Therefore, the process by which matters will be addressed, if there is some shock to the operation of the system once it is operational, is set out in the terms of the treaty and operates on the level between the two countries.
Lord Falconer of Thoroton (Lab)
I thank the noble and learned Lord for answering the question, but I am not sure that answers the point. Suppose the position were that the UK said, “You haven’t implemented it properly”; the effect of this Act would be nevertheless that a Minister and every single deciding body would have to decide that Rwanda was a safe country. I am not quite sure how Article 22 responds to the suggestion that I think the noble Lord, Lord German, makes in his amendment that judicial review should be available—albeit, as the noble Lord, Lord Howard of Lympne, said, it would be the decision of the Secretary of State as to whether it was a safe country. Could the noble and learned Lord address that suggestion?
Lord Stewart of Dirleton (Con)
My Lords, in relation to the operation of the treaty during its currency, we should bear in mind that a monitoring committee is in place, which examines these things on a going-forward basis, keeps them under supervision and reports back.
Annexe B of the treaty also sets out the claims process for relocated individuals and how they will be treated. It sets out clearly that members of the first instance body, who will make decisions on asylum and humanitarian protection claims, shall make such decisions
“impartially, solely on the basis of evidence before them and by reference to the provisions and principles of the Refugee Convention and humanitarian protection law”.
In preparation for the potential relocation of individuals, officials in the United Kingdom have worked together with Rwandan officials to develop and commence operational training for Rwandan asylum decision-makers. Most recently, Home Office technical experts, in collaboration with the Institute of Legal Practice and Development, delivered a training course aimed at asylum decision-makers in Rwanda.
Lord German (LD)
My Lords, I wonder if the Minister might tell us how long the course was, how many people were training and where they were from.
Lord Stewart of Dirleton (Con)
I do not think the noble Lord will be especially surprised to hear that I do not have those facts to hand, but I will undertake on behalf of the relevant department to communicate with him in writing on that topic.
The course focused on applying refugee law in asylum interviews and decision making—
Lord Scriven (LD)
The UN has reported on the treaty and the deficiencies that the Supreme Court referred to. In January, it noted in paragraph 20 of its report that training, based on its historical review of what is required in such circumstances, is normally of limited use. Over and above the training, what else has been put in place for those decision-makers to ensure that they fully abide by and understand their obligations, not just within Rwandan law but international agreements?
Lord Stewart of Dirleton (Con)
My Lords, as I said when I was responding to a point from the noble and learned Lord, Lord Falconer of Thoroton, the presence of British officials and foreign judges in Rwanda, looking at these matters and collaborating to resolve them, will clearly inculcate an atmosphere and a spirit of proper observance.
Lord Kerr of Kinlochard (CB)
My Lords, the Minister speaks in the future tense—that the presence of British judges and the training “will” have that effect. I guess he is right; it may very well have that effect. But the point is that we are asked to declare Rwanda safe now. I hope the Minister is going to answer the questions from the noble Lord, Lord Purvis, about timing: when do we expect Rwanda to produce the new asylum law? When do we expect the judges to be appointed? When do we expect the system that is to be devised to ensure that there is no refoulement? When will that system be created? When are the Government going to see it? When will the House see it? If we are asked to say that Rwanda is safe, then we have already voted that we cannot ratify the treaty until the measures set out in Amendment 84, which were in the International Agreements Committee report, have come into effect. It is all very well the Minister speaking in the future tense; he has to tell us now when things are going to happen.
Baroness D'Souza (CB)
My Lords, I may have missed it, but could the Minister say whether Rwanda has drafted a refugee law?
Baroness Hamwee (LD)
My Lords, can I add to the Minister’s list the number of judges who have agreed to go to Rwanda and work there, and indeed the number of officials, and for how long?
Lord Stewart of Dirleton (Con)
My Lords, it is a matter of working towards having the safeguards in place. We have received assurances from the Government of Rwanda that the implementation of all measures in the treaty will be expedited. The point is that we are working with them to accomplish that end. We have already developed and commenced operational training—
Lord Purvis of Tweed (LD)
I am grateful to the Minister. That is the closest we have got to an answer: “working towards”. Can we pursue that a wee bit more? If the Rwandan Government are “working towards” putting safeguards in place, that means they are not currently in place. Is that correct?
Lord Stewart of Dirleton (Con)
Just before the noble Lord stands up or resumes his position, I have specific information on the point he raised earlier on information available electronically. I am told that the page on the GOV.UK site to which he was referring was in fact withdrawn on 11 September 2023 and has been superseded by one dated 11 January 2024.
Lord Purvis of Tweed (LD)
I am grateful. I clicked on it half an hour ago. Maybe they can do some clicking in the Box, because the information the Minister has just provided is false. He needs to correct the record, but he can do it in writing to me if he so wishes.
Lord Stewart of Dirleton (Con)
I think a discussion on this point would be taking up too much of the Committee’s time.
Lord Purvis of Tweed (LD)
As the Minister confirmed to me, by definition, the safeguards that would make Rwanda safe are not in place, because the Rwandan Government are “working towards” having them in place. Why then are we asked to determine that Rwanda is currently safe when the Minister has said it is not?
Lord Hope of Craighead (CB)
My Lords, might I add to that question? Is the noble and learned Lord the Minister not embarrassed by the word “is” in the clause, which I will address in the next group? It is the language of that particular provision that causes embarrassment to the Government. They really need to face up to the significance of using the word “is”.
Lord Stewart of Dirleton (Con)
My Lords, taking the contribution of the noble Lord, Lord Purvis of Tweed, together with that of the noble and learned Lord, Lord Hope of Craighead, I think that brings us to considering where we are with the decision of the Supreme Court, and how that sits with what we, as a Government, are inviting the House to do at this stage.
The point is—and it is one which has been anticipated by noble Lords contributing on this and the previous group—that the factual basis on which the Supreme Court reached its decision has changed. The factual basis on which the Supreme Court reached its decision was frozen in time, as it were, by the court of first instance. Since then, considerable development has taken place. The facts have changed; we are entitled to move forward. I also do not consider that that there is anything—
Lord Scriven (LD)
I thank the Minister for giving way. In January, the UN gave an assessment of where the Rwandan immigration system is. Paragraph 18 of that report states:
“As of January 2024, UNHCR has not observed changes in the practice of asylum adjudication that would overcome the concerns set out in its 2022 analysis and in the detailed evidence presented to the Supreme Court”.
What the UNHCR is saying is that, as of January this year, it has seen no evidence that the issues that the Supreme Court had in its evidence have been addressed to make Rwanda a safe country.
Lord Stewart of Dirleton (Con)
My Lords, we disagree with the views of the UNHCR on that point. As noble Lords were reminded at an earlier stage, the UNHCR is not the sovereign Parliament of this country.
Baroness Lister of Burtersett (Lab)
Will the Minister give way? Just a moment ago, he said that Rwanda was “working towards”—that is not the same as “is”. I hate to say it, but it would appear that he is contradicting himself.
Lord Stewart of Dirleton (Con)
I do not think that that is the case. I think that by saying that Rwanda is continuing to work on a process is to say that it is working on making things safer—not that they are not safe already.
Baroness Kennedy of The Shaws (Lab)
My Lords, I am sorry to interrupt. We have not received any evidence as to how this change has taken place in this short period. Rather than an assertion, what evidence is being placed before this House as to what is taking place and what has taken place to totally change the assessment of safety? I really would like to hear what the evidence is.
Lord Falconer of Thoroton (Lab)
My Lords, could I assist the noble and learned Lord in relation to this? There is a document called Safety of Rwanda (Asylum and Immigration) Bill, and what this rather excellent document reveals—no doubt the noble and learned Lord will correct me if I am wrong—is that, since the Supreme Court decided, there has been the agreement that has been entered into, which is really just making legal and international law commitments they had already given, and that just before the Supreme Court gave its judgment, two courses were held, one from 18 to 22 September 2023 and the second from 20 to 24 November 2023, in which a number of Rwandan officials were trained, as the document says, to have a better understanding of the refugee convention.
Apart from those two courses and the entering into of the agreement the Minister referred to, will he tell us what else has happened since the rendering of the Supreme Court’s judgment, which I think was a few weeks ago?
Lord Stewart of Dirleton (Con)
More than a few weeks ago, I think, but what we have is an internationally binding treaty between two sovereign states. That—if the noble and learned Lord will bear with me—is of the utmost significance in considering such matters.
Lord Falconer of Thoroton (Lab)
Am I right in saying that the legally binding commitment commits Rwanda to do the things, particularly in relation to refoulement, which it had already promised—although not in an agreement—to do? Am I right in saying that the very judgment which the noble Lord, Lord Sharpe, said an hour ago the Government respect, would take considerable time to take effect because of cultural understanding and the need for very substantial change? I am looking for something other than simply signing an agreement to do with that which it had already promised to do, which the Supreme Court said it was not in a practical position to deliver. Will the Minister tell the Committee what has happened that gives one confidence that that which the Supreme Court says will take time will in fact be ready in an instant?
Lord Stewart of Dirleton (Con)
It is not a matter of being ready in an instant. The work is being undertaken. The point is that we have a specific treaty commitment not to refoul. As the noble and learned Lord knows, but just to remind the Committee, that is not to send people from Rwanda anywhere other than back to the United Kingdom; and, specifically, not to send them to places where they might be subject to torture or mistreatment; and, further, not to send them back to the countries from which they emerged if those countries are deemed dangerous.
Baroness Kennedy of The Shaws (Lab)
Have we bought through financial consideration special treatment for the people we send for asylum, as distinct from anyone else being considered for asylum; or is the asylum system as a whole being reformed? If we are buying them business class, as distinct from sitting at the back of the bus, does that really conform to our high standards of the rule of law and the protection of human rights? Or are we just buying something a bit special for the folk we are intending to put on a plane?
Lord Stewart of Dirleton (Con)
My Lords, the Government enter into diplomatic arrangements such as treaties with other countries on behalf of the Government, the people and the country of the United Kingdom. Decisions on how to approach handling immigration or asylum claims elsewhere are surely matters for other countries. We would not trespass upon their independence and privileges in order to negotiate on behalf of them with a separate sovereign country.
Baroness Kennedy of The Shaws (Lab)
Is their whole system to be reformed in order that we can be confident of the quality of decision-making?
Lord Stewart of Dirleton (Con)
I think the noble Baroness has my answer, but the point is this: we do not impose or seek to impose upon anyone; nor, when the noble Baroness talks about buying privileged status, would I go along with that. What I am talking about and what the Government are seeking to enact in this measure is a commitment with a forward-looking, democratic country which is signatory to the same treaties and international obligations as we are.
Baroness Williams of Trafford (Con)
The noble Baroness, Lady Lister, is about to stand up to intervene. I am aware she has not been here for the whole of this debate.
Baroness Lister of Burtersett (Lab)
I am sorry to intervene again, but I have been here for the whole debate. May I take the Committee back to the noble Lord, Lord Scriven, quoting from the UNHCR? The Minister said that we do not agree with the UNHCR, but it points out that its conclusions are based on
“UNHCR’s own extensive experience in capacity development of national asylum systems”.
Is the Minister saying that this Government have more experience than the UNHCR of the capacity of countries to change? It makes it very clear that training is not enough and that there needs to be systemic change and a change of culture.
Lord Stewart of Dirleton (Con)
As I say, this is now a matter of a treaty commitment by that country. We surely accept the possibility that countries have changed. We know the trauma Rwanda has gone through in the comparatively recent past, and we support and acknowledge the work it is attempting to do as a forward-looking African country, looking to provide solutions as opposed to exporting problems.
Lord Howard of Lympne (Con)
These questions have ranged far and wide, but was not the one issue, as I understand it, on which the Supreme Court came to its decision the risk of refoulement? That is covered in the treaty, and anybody would be able to see and know whether anyone was refouled in breach of international law and the concern expressed by the Supreme Court.
Lord Stewart of Dirleton (Con)
I am grateful to my noble friend. The matter is entirely patent on the Supreme Court’s decision. It is about refoulement. We now have a treaty commitment preventing that happening.
Lord German (LD)
I have a straightforward and simpler question for the Minister. Paragraph 20 of the policy statement states:
“in order to implement the treaty, the GoR will pass a Rwandan asylum law in the coming months”.
When will that law be produced? Has it already been passed? If not, when will it be passed? If it is going to be passed after we pass this Bill, obviously, the treaty cannot be enabled.
Lord Stewart of Dirleton (Con)
I do not have information specific to the questions the noble Lord raises.
Lord Berkeley (Lab)
I have listened very carefully to this debate. I was particularly interested in the comments from my noble and learned friend Lord Falconer about training people in Rwanda. I think he said there were two weeks of training. For any treaty to work, it must be between countries that are equal. My impression is that we are telling the Rwandan Government and people what to do, putting pens in their hands and making them sign without properly training them and giving them the experience to act equally to what we are looking to do ourselves. I may be wrong—perhaps the Minister can put me right.
Lord Stewart of Dirleton (Con)
I think the noble Lord overstates the matter. Advice and assistance are being provided to assist a country to shape its laws and culture in a way which is consistent with ours. The work Rwanda has undertaken is substantial. Work has been done in response to the decision of the Supreme Court, albeit, as my noble friend Lord Howard of Lympne pointed out, that that decision ultimately related to refoulement, which is expressly covered in the treaty.
Lord Falconer of Thoroton (Lab)
The noble Lord, Lord Howard, is correct when he says that the fundamental reason why the Supreme Court said no to this was the risk of refoulment. But it said that the risk of refoulement was caused by Rwanda’s asylum system, which was totally defective across the board. Rwanda could not prevent refoulement because its system was so bad. The judgment refers to
“its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement … and the scale of the changes in procedure, understanding and culture which are required”.
That is what the Supreme Court identified as being required. So it is both accurate but rather misleading to say it was only refoulement. There was the risk of refoulement because of the failures. Would that be the Government’s understanding of the position?
Lord Stewart of Dirleton (Con)
People cannot be refouled to a different country under this treaty. They can be sent back to the United Kingdom; that is as far as it goes.
Lord McDonald of Salford (CB)
The Minister rests a great deal on a signature on a treaty with a country that—with the current Government—has in the last decade refouled over 4,000 refugees sent by Israel to Rwanda. That was the current Government of Rwanda behaving badly with refoulement. Why is the Minister so confident that the same Government are so fundamentally different and reformed?
Lord Stewart of Dirleton (Con)
Well, my Lords, the treaty is governed by our laws, by the Government of Rwanda and by international law. For a former diplomat, the noble Lord seems to have very little confidence in the ability of treaties to regulate the conduct of Governments between one another.
Lord Purvis of Tweed (LD)
For the Minister to be persuasive in response to that question, he would not have said that they are working towards putting safeguards in place—safeguards which have to be in place, in respect of the point about refoulement made by the noble Lord, Lord Howard. The Minister said that they were working towards putting safeguards in place. The noble Lord, Lord Sharpe, said no relocation would take place before these safeguards were in place. So can the Minister at the Dispatch Box reconfirm that position: that no individual will be relocated before the safeguards—including the appeals mechanism, the training and the capacity-building—are in place? And when will the date be for when relocations of individuals can happen? I ask because we will be informed in Parliament that all of those safeguards are in place; not that they will be in place or are being worked towards, but that they are in place.
Lord Stewart of Dirleton (Con)
I can answer the first part of the noble Lord’s question in the affirmative. On the second part, I cannot give a date.
Viscount Hailsham (Con)
As I understand it, my noble and learned friend is effectively saying that, because the treaty is going to be in place, Rwanda can be presumed to comply with its obligations. However, Clause 1(4) of this Bill says:
“It is recognised that … the Parliament of the United Kingdom is sovereign, and … the validity of an Act is unaffected by international law”.
“International law” is very widely defined in subsection (6). If that is true of this country, is it not also true of Rwanda, and why should we necessarily believe in its commitments to the treaty?
Lord Stewart of Dirleton (Con)
Another noble Lord is perhaps too ready to disparage the activities and views of the Rwandan Government. As to the first point, paragraph 54 of the Constitution Committee’s report, which was published recently and quoted by the noble Lord, Lord German, towards the beginning of this debate, says:
“It is the case that United Kingdom Parliament is sovereign, and therefore may enact legislation which breaches international law. It is also true that the validity of an Act of Parliament, in domestic law, is not affected by international law. Nevertheless, the United Kingdom is still subject to the provisions of international law”.
I do not disagree with anything that the Constitution Committee says in that document. The United Kingdom and this Government take their international commitments extremely seriously, but this measure, this treaty and this Bill are drawn up in response to a considerable problem. People are dying, and a huge amount of money is being spent by the United Kingdom in accommodating people, many of whom have no business being here in the first place. This Bill is an attempt to drive the matter forward.
As the noble Lord, Lord Coaker, said when winding up for the Opposition Front Bench at Second Reading, a number of things are being done already. He endorsed them on behalf of his party. He spoke about the directions against criminal groups to try to break their business model. He spoke about the enhanced levels of co-operation with our partners on the continent of Europe. Patently, however, while this is a complex and multilayered problem, these things are not working of themselves and the Government have taken a view that we must take further measures to try to stop the boats.
Lord Kerr of Kinlochard (CB)
The noble Lord, Lord Howard, is quite right that the crux of the Supreme Court judgment is the question of refoulement. Ex-diplomats tend to take treaties very seriously. They read Article 10.3 of the treaty with Rwanda, which says:
“The Parties shall cooperate to agree an effective system for ensuring”
that refoulement does not occur. I repeat:
“The parties shall cooperate to agree an effective system”.
That is the crux of it. Where is that system? Can we see it? If we could see that system, it might help us to determine whether Rwanda is safe.
Lord Stewart of Dirleton (Con)
The noble Lord is aware that, as I explained a moment ago, the provisions of the treaty will send people to the United Kingdom only. They will not and cannot be refouled under the treaty and the arrangements we have with Rwanda.
Lord Kerr of Kinlochard (CB)
Why then does the second sentence of Article 10.3 exist? Why is there? Why does it say:
“The Parties shall cooperate to agree an effective system for ensuring that removal contrary to this obligation”
which the Minister refers to “does not occur”?
Why do we need a system? If the Minister is completely confident, why have this Government signed a treaty that has a fallback to say what should happen if refoulement does occur? When will we see that system to ensure the fallback—the safety net? When are we going to see that? It is not good enough for the Minister to say that refoulement cannot happen because we have signed a treaty. The Government have also signed a treaty containing a provision for what happens if refoulement nevertheless occurs.
Lord Stewart of Dirleton (Con)
My Lords, it is entirely prudent and appropriate to anticipate contingencies in the terms of a document such as a treaty.
Lord Falconer of Thoroton (Lab)
The noble and learned Lord is taking a much tighter and more defensive position than the Government themselves are taking. They accept the proposition of the question put by the noble Lord, Lord Kerr. They do not say that Article 10 is enough on its own. They say the following:
“The Supreme Court concluded that changes needed to be made to Rwanda’s asylum procedures in order to ensure compliance with the principle of non-refoulement”.
They accept the proposition. That is paragraph 76 of the Government’s own statement. So tell us what changes and where we have got to. It is not enough—and the Government accept that it is not enough—just to rely on Article 10.
Lord Stewart of Dirleton (Con)
My Lords, I have adverted at some length already to the Monitoring Committee that is in place and to the work currently under way by judicial and bureaucratic civil servant staff assisting the Rwandans in working through these matters.
Lord Inglewood (Non-Afl)
My Lords, I am feeling slightly confused at this point. Am I correct in saying that the Government accept that, at present, Rwanda has not fully adhered to the commitments that it has given and that it follows that, by reference to those tests, it would be unsafe? As I understand it, even if the Government did nothing, if this Bill goes on the statute book as currently drafted, no changes will take place in the wider world and, suddenly, Rwanda becomes a safe country. Is that the reality of what we are looking at?
Lord Stewart of Dirleton (Con)
My Lords, the intention of the Bill is to provide that Rwanda is a safe country. As I have explained to the noble and learned Lord, Lord Falconer of Thoroton, in discussing Article 22 of the treaty, in the event of some disturbance to that situation the matter will be approached on a Government-to-Government basis by the convening of the relevant committee within 14 days.
Returning to a text which was prepared earlier for me, I ask the Committee to bear in mind that Article 10 of the treaty sets out particular assurances for the treatment of relocated individuals in Rwanda, including abiding by the refugee convention in relation to those seeking asylum. Furthermore, pursuant to Article 3 of the treaty, the parties agree that the obligations therein shall be met in respect of all relocated individuals, regardless of their nationality and without discrimination. Under this commitment, Rwanda will treat all groups of people fairly. Furthermore, Article 10(3) in the treaty sets out clearly that the only place to which Rwanda can remove individuals—we have covered this ad longam—is the United Kingdom, which ensures that there is no risk of refoulement.
For noble Lords who remain concerned as to whether the Rwandan Government will abide by the treaty, the independent monitoring committee will be in place to ensure that obligations in the treaty are adhered to. For an initial period of at least three months, there will be enhanced monitoring; that shall take place daily to ensure rapid identification of, and response to, any shortcomings. I refer the Committee in that regard to Article 15(7) of the treaty. This enhanced phase will ensure that monitoring and reporting take place in real time. Individuals who are relocated to Rwanda will be able to raise any issues of concern, should they arise, with the committee. It should also be remembered, as I have said on a number of occasions, that this is a legally binding treaty that will become part of Rwandan domestic law.
Taking all of this into consideration, I submit that these amendments are unnecessary. Further, they undermine the objective of the Bill, unnecessarily delaying, potentially, the relocation of individuals to Rwanda. I therefore ask the noble Lord to withdraw his amendment.
Baroness Bennett of Manor Castle (GP)
My Lords, if the Committee will forgive me, slid into an earlier part of the Minister’s response was a reference to some glowing statements about the progress within Rwanda on gender equality. Those statements should not be allowed to be left standing, because although we have been very much focused in this debate on refoulement, we are assuming that if refugees—in particular, women refugees—are given status in Rwanda they will remain and have to live in Rwanda. On those glowing statements made about gender equality there, yes, it is well known that Rwanda has made considerable progress in terms of parliamentary representation and ministerial representation—indeed, more progress than our own Parliament has.
None the less, is the Minister aware that in Rwanda, 83% of women work in the informal sector or are in low-wage occupations, earning on average 60% of men’s incomes? Its National Gender Statistics Report 2021 revealed that physical violence affected 36.7% of women and girls aged 15-49 in Rwanda. Will the Minister acknowledge, with regard to his earlier remarks, that making claims about gender equality progress in Rwanda needs to be done with caution?
Lord Stewart of Dirleton (Con)
I respectfully agree with the noble Baroness that it is important to look at such matters with caution. In relation to the figures which she cites, the statistics concerning domestic violence would be primarily, one presumes, a matter for Rwandan society itself.
Baroness Bennett of Manor Castle (GP)
I am sorry: those were not domestic figures but general violence against women and girls figures.
Lord Stewart of Dirleton (Con)
I am very aware of the noble Baroness’s campaigning work on the topic, and she will be aware that the bulk of violence visited upon women criminally is within the domestic setting.
Baroness Lister of Burtersett (Lab)
Given that, what is the basis for the Minister’s assertion about gender equality, which was also made in the letter of the noble Lord, Lord Sharpe, to Peers? Can he give us some references, since the noble Baroness has?
Lord Stewart of Dirleton (Con)
With respect to the important point which the noble Baroness tables, I have a feeling that this matter is dealt with in a later group. I do not have the figures to hand at the moment. If we do not touch upon that in a later group, with which I may not be concerned—I have not had a look at that, as a result of the division of labour on these Benches—then on the point which the noble Baroness makes, which reflects the original question, I will make sure that those figures are either brought out in the scope of the debate or are the subject of correspondence.
Lord Scriven (LD)
To be helpful, as the Minister finds his place, what is clearly becoming a bone of contention between the Government Front Bench and the Committee is the progress that has been made. To help us before we get to Report, can the Minister write to noble Lords who have taken part in this debate to show the significant progress—that is the phrase he used—that Rwanda has made to deal with the concerns of the Supreme Court? We would then have some evidence before we get to Report to see the exact content of those significant reforms.
Lord Stewart of Dirleton (Con)
I am happy to take up the noble Lord’s suggestion. We will correspond with him and other noble Lords who have participated in this debate.
I touched on the role of the independent monitoring committee. We have heard about the presence of persons from outwith Rwanda offering their expertise and skills, bolstering the system that will rule in these situations.
The noble Baroness, Lady Bennett of Manor Castle, made a point in relation to the situation in Rwanda. Of course, the Committee ought to be reminded that it is not the intention of the Government that this be a means of sending people to Rwanda; our intention is that people who want to come to Britain will be deterred from following illegal routes travelling to Britain. We intend to use Rwanda as a deterrent for those people. Rwanda itself is safe. The point is that the people who want to travel to Britain will be deterred from travelling if they know that they will be taken instead to Rwanda. This is expressed in a legally binding treaty, which will become part of Rwandan domestic law.
Taking all of what has been said, including the extensive extemporary interventions from Members on all sides, I submit to the Committee that these amendments are unnecessary. They undermine the Bill’s objective. They unnecessarily delay matters in relation to the relocation of individuals and the deterrent effect of which I spoke. I therefore invite the noble Lord to withdraw his amendment.
Lord German (LD)
My Lords, I congratulate the Minister on keeping his cool during this debate, because he has had a lot of information requests thrust at him.
If you were to separate this group of amendments into two halves, the first is about the process by which Parliament deals with the results of the Bill and how it should do it, looking at normal parliamentary practice. That is what was at the heart of this group; we should do it in a proper and appropriate manner. When the Government have determined that it is safe, according to the conditions laid down for them by this House, they would put an order before this House and the Commons, which would be voted on and could have a judicial end if necessary. That was the purpose of this group of amendments.
The second half of the group is much more about what we know in order to make that decision about whether Rwanda is safe. We have heard, “Rwanda is safe, but we’re going to make it safer”. We have heard “It will be expedited”, “We are working towards the treaty” and “We are”—as written down—“seeking assurances and commitments”. All those are in the future tense. The House is being asked to change our mind about what it has already determined, and we need to have the evidence to make that determination. On the most fundamental, simple question—whether, to implement the treaty, the Government of Rwanda will pass a new Rwandan asylum law—we do not know the answer, let alone having answers to all the other questions raised. We do not know where we will be by the time we get to Report.
On the issue of process, bearing in mind the idea of rolling sunset clauses—we need to look a judicial review and everything else—all those matters are important, but they do not deal with what happens before the Rwanda treaty is enacted; they deal with afterwards. I am interested in what happens both before and after, to find solutions which meet the needs of this Committee.
In a sense, I am in a quandary. If you were to ask me after listening to this debate to make a decision on whether Rwanda is safe, the answer would be, “I don’t know and I’ll come back later—but please tell me when I should come back”. As far as I can see, the Committee does not know when that will be. We have had no evidence, dates or timings, or rollout of information to help us make that decision. I hope that we will see it. If we do not, we certainly will be back. In the meantime, I beg leave to withdraw my amendment.
Lord Hope of Craighead
Member's explanatory statement
This amendment, read with new subsections 1(7) and 1(8), seeks to give effect to the proposition that Parliament cannot judge Rwanda to be a safe country until the Rwanda Treaty has been, and continues to be, fully implemented.
Lord Hope of Craighead (CB)
My Lords, I have four amendments in this group: Amendment 6, 14, 20 and 26. They are all part of a single package. They are designed to address, in a slightly different way, the points that have been debated in the two previous groups. In a way, we are on very familiar ground, because we have covered the ground in considerable detail, particularly in the exchanges with the noble and learned Lord, Lord Stewart, at the end of the last group.
I take the Committee directly to the wording of Clause 1(2)(b). That clause states, as we know, that the
“Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country”.
I am concerned with the word “is”. By way of preamble, I am not speaking entirely for myself in being unduly troubled by the fact that the Government are asking your Lordships to reverse the finding of the UK Supreme Court of 15 November last year. The court said that there were:
“substantial grounds for believing that the removal”
of claimants
“to Rwanda would expose them to a real risk of ill treatment, as a consequence of refoulement”.
In other words, it was not a safe country as defined for the purposes of the Bill by Clause 1(5).
However, that finding was based on the evidence which was before the court. Indeed, that was evidence which was before the Divisional Court a year before in 2022, as the noble Lord, Lord Murray of Blidworth, reminded us. In a sense, it was talking about material which has moved on. At least, other things have moved on since the facts were gathered together, which was the basis of that finding. It is important to note that the document which was available at that time was not the treaty but the then memorandum of understanding between the two Governments, entered into in April 2022. That had some quite important differences to what we now find in the treaty.
As all judges know, decisions on matters of fact are open to review if there has been a material change of circumstances. I am very far from saying that there has been a sufficient material change to justify a different finding, but in principle, that finding is open to be looked at again if the circumstances change. Certainly, things have moved on since 2022. As I mentioned a moment ago, there is a new treaty. As for Parliament taking upon itself the responsibility of making the judgment referred to in Clause 1(2)(b), I suggest that one has to be quite sanguine about it and just recognise that there are circumstances where judgments can be looked at again. No judge is going to be particularly aggrieved if people suggest that this should be so.
If I was still in the Supreme Court, I would just shrug my shoulders at this and let Parliament carry on and do what it likes, as indeed it can. The President of the Supreme Court, the noble and learned Lord, Lord Reed of Allermuir, is a Member of this House, but unfortunately, he is disqualified by reason of his office from coming to address us. There is a mechanism by which, if he was unduly troubled, he could submit in writing his views for us to take into account. So far as I know, he has not done that, and I am not greatly surprised that he did not think it necessary to do that.
When I said that Parliament can do what it likes—even if, as is plainly the case here, what it is doing is plainly in conflict with our international obligations and therefore deeply regrettable—it must think very carefully about what it is doing. It must be careful in the choice of words. If it is going to take the place of judges who are very careful in their choice of words when they issue their judgments, it must exercise the same degree of care and skill. That is all the more important in view of the way the Bill gives effect to the judgment. It is surrounded by so many barbed-wire fences, all designed to prevent that judgment ever being challenged in any UK court under any circumstances. This means that the judgment your Lordships are being asked to make is crucial to the safety, lives and well-being of everyone, wherever they come from, who are at risk of being removed to Rwanda.
Lord Anderson of Ipswich (CB)
My Lords, I cannot of course surpass the noble and learned Lord, Lord Hope, in quality but I can at least claim the advantage in quantity: I have seven amendments in this group to his four.
We discussed in the first group of amendments why Parliament is ill equipped to make the fact-specific and time-specific judgment asked of it by the Bill—that Rwanda is a safe country. I suppose that on Wednesday we will look at how this difficulty is compounded by restrictions on access to the courts, which is the most troublesome aspect of the Bill.
The amendments in this group do not provide answers to either of those concerns of constitutional principle. Instead, and very much as a second-best option, at least as far as I am concerned, they accept the proposition that Parliament should be the decision-maker and seek to make something workable out of it. The past few hours have surely served as a warning, following the similar warning delivered by the International Agreements Committee at the end of last year, that this House could not, as the noble and learned Lord put it, in all conscience sign off now or in the near future on the proposition that Rwanda is a safe country. The Minister came very close in the last debate to admitting the obvious—that this is at best a work in progress. If he is as sensible as I think he is, he should be very grateful for the olive branch that is Amendment 6 in the name of the noble and learned Lord, Lord Hope.
We turn to the question of what Parliament would need in order to make its judgment—the letter promised to the noble Lord, Lord Scriven, will be a welcome start, but it could not of course be enough—and how to ensure that this judgment can be revisited over time. My Amendments 15, 16, 77, 83, 88, 89 and 92 in this group, on which I am grateful for the assistance of the Law Society of England and Wales, are put forward in that spirit of slightly grubby compromise.
Amendment 15 provides for an independent reviewer to review the implementation and operation of the Rwanda treaty and report on it, initially at three-month intervals and thereafter annually. The objective is to produce an impartial report which Parliament can use to come to its own view. I am indebted for that idea to the noble Lord, Lord Carlile, a former independent reviewer himself, who signed the amendment but unfortunately cannot be here today. I accept that there are bodies other than an independent reviewer which could give us the expert advice that we need to make the judgment required of us under Clause 1. It may not be realistic to expect the Government to accept the UNHCR or indeed the Joint Committee on Human Rights for that purpose. The noble and learned Lord, Lord Hope, suggests involving the independent monitoring committee established under the UK-Rwanda agreement. There is a good deal of logic in that and it might be a satisfactory solution, so long as its reports are published in full and without interference by the joint committee—the body made up of officials from the two Governments and hence anything but independent—to which the monitoring committee, under the scheme of the treaty, reports. For that reason I see attraction in the approach of the noble Lord, Lord Coaker, in his Amendments 64 and 65, which cut out the middleman and require the monitoring committee to report directly to Parliament.
Lord Blunkett (Lab)
My Lords, I speak to Amendment 8 and associated Amendment 72 in my name. I am grateful to the noble Lord, Lord Kerr, and to the right reverend Prelates the Bishop of Bristol and the Bishop of St Edmundsbury and Ipswich for their support. I have also added my name to Amendment 64 tabled by my noble friend Lord Coaker.
I have tabled Amendment 8 for several reasons in relation to what happens to those who would find themselves translated to Rwanda should this Bill become law and should there be time for the Government to find the mechanisms and processes to make it work, which is in considerable doubt. Nothing that I say this evening should be taken as any endorsement whatever for any part of the Bill, because I do not believe that it will work or that it is acceptable in terms of our international conventions.
I take up the point made at the end of the last group by the Minister, when making a gallant effort to defend the Government, that this is about deterrents. The deterrent is Rwanda. The deterrent is the refusal, through the Nationality and Borders Act and then the Illegal Migration Act, to allow people to claim asylum when they reach our shores if they do not come with the appropriate accreditation and passport. As there are no current resettlement routes outside the particular routes for Ukraine and Hong Kong that are currently working, anyone outside those bespoke processes is denied asylum in the UK. The previous Home Secretary and her predecessor both made it very clear that what they were doing here was indicating that someone who came without those papers and processes was illegal. By being illegal they became, in the words of Suella Braverman, a criminal—they therefore broke our values and should not have the right to be processed here but instead should be transferred to Rwanda.
My amendment and the associated Amendment 72, which deals with the treaty requirements, are very simple. Someone who is offshored and can justify their asylum claim by showing that they are a genuine refugee should be allowed back into the country. That was true of the Australian scheme mentioned earlier, which incidentally was about picking people up in the 1,000 nautical miles of sea before people reached Australia and translating them back to the processing company.
The one thing the Australian scheme had in common with the Rwanda scheme is the cost: it ended up at £1 million per individual, which is what we will end up with here. They had that in common.
What the Rwanda scheme does not have in common with the proposition from, I repeat what I said a few weeks ago, the very far-right Prime Minister of Italy, the leader of Brothers of Italy—I do not know whether Members on the Benches opposite accept that she is a genuine right-winger—for offshoring to Albania is that those who are adjudged to be asylum claimants and shown to have refugee status will be transported back to Italy. They have the right to come back to the country that originally transported them out.
I want to make this clear, although at this time of night the message probably will not get across, but I do not believe that Members of the House of Commons understood what they were passing. I do not mean to be patronising, but I just think that they did not take account of the detail; neither did the public. I do not think they understood that it is a one-way ticket. We are not offshoring by any known concept of that process, but showing Rwanda, as I just described, to be a threat. If it is a threat, it is a threat. What is the threat about Rwanda? It is that it is Rwanda.
The Bill is a one-way ticket that, bizarrely, allows asylum to be claimed or not. In the responses at the end—and I gave notice of this at Second Reading—I would be interested in knowing what happens if someone who is not allowed to claim asylum in the UK, having been transported to Rwanda, chooses not to claim asylum in Rwanda. It cannot be presumed that, because they had tried to claim asylum in the UK and were criminalised when denied it, they would claim asylum in Rwanda. Perhaps we could park that and someone can give me an answer.
Let us say that they do claim asylum in Rwanda: they will end up no different from those who have not claimed asylum, because they will be in Rwanda. Sadly, those who have demonstrated their legitimate claim to asylum, and therefore are refugees by every international convention, will be in exactly the same position as those who are adjudged not to be refugees but who remain in asylum. The only two categories among those who can reach the UK from Rwanda are those who are claiming asylum in the United Kingdom as Rwandans, or those who cannot be transported from Rwanda to the country of their origin because it is unsafe and who are allowed back under the Bill. Those are the only two categories. Those who are not allowed back are those who have actually demonstrated their refugee status. This is Alice in Wonderland stuff; it is absurd.
If this is all about sending signals to the traffickers that their business model is broken, we would really be breaking the asylum seekers rather than the organised criminals. They would simply say to people, “If you are going to be transported to Rwanda, but you demonstrate your refugee status, you will remain in Rwanda, just as those who do not will remain in Rwanda”, the asylum seekers will disappear into the ether. Organised criminals are to be dealt with in subsequent groups in Committee. Genuine refugees will find themselves in the hands of organised criminals and part of modern slavery. We know that that will happen, because that is what organised traffickers will tell asylum seekers: “We will give you a telephone number. Ring it, and we’ll find you a job and a bed, and we’ll own you”.
If there is anything moral in how we stop people coming across the channel in dangerous small boats, it is not the morality of sending away the organised traffickers. It is the immorality of encouraging people to disappear into the hands of those same organised criminals.
I am suggesting that—as with Giorgia Meloni, and every other system in the world that has ever existed, as far as I know—those who demonstrate their refugee status, and have been transported from the country they finally reached, should be allowed to come back as refugees. It might not fit the threat of Rwanda that we talked about earlier, and will talk about in subsequent groups, but it would fit our commitment to our international obligations and the human rights of those individuals. If we do not do that, we are developing a concept of the United Kingdom as a country that will not only breach all international conventions that we have signed but our basic morality. That would be demonstrably dangerous for this country and other parts of the world in years to come.
Baroness Kennedy of The Shaws (Lab)
My Lords, the full incoherence and madness of the Bill has just been exemplified in the speech of the noble Lord, Lord Blunkett. The many possibilities here are incredible, such as the idea that asylum seekers may well receive the advice that when they get to Rwanda they should not apply for asylum. What do the Rwandan people do then? We should ask ourselves that question: where do you send them back to? To Britain, whence they came—they are not applying for asylum here—or back to France, our great partner in trying to deal with the crime that is emanating across Europe, with which we need to be collaborative, and need intelligence and serious investigation into criminal gangs?
I was rather attracted by the suggestion of the noble and learned Lord, Lord Hope, that we change the tense and make it about the future: that if Rwanda does become the safe country we are being asked to vote that it is, that we feel it has a legal system capable of making these assessments, and it is properly monitored, and we receive evidence—I have mentioned evidence before—we must be sure of that, and putting it into the future might be rather appealing. The one thing I had concerns about was when the noble and learned Lord said that this would not cause delay. I am hoping that there will be delay.
I do not want to see people being flown to a place in which this great project of modernising and improving the system will take place. If it is going to happen at all, I want it to have happened before we send anybody there. I happen to take the view, unpopular among many, that exporting people and sending them away is part of the problem. We are not doing as Italy’s ultra-radical, proto-fascist leader Ms Meloni is doing, which is asking the Albanians to do on Italy’s behalf what the Italian system would be doing. We are not asking for that; we are sending them there. We are exporting a problem.
I am concerned about the issue of delay and perhaps the noble and learned Lord, Lord Hope, will respond at some stage. I see him getting to his feet; maybe he can help me.
Lord Hope of Craighead (CB)
I do not quite understand the point that the noble Baroness is making. When I talked about delays, I meant the delay of implementing the Bill—putting the various people in place for the monitoring to take place. The fact is that the committees I mentioned already exist. The distinction is between that situation and setting up new independent monitoring, which will take time. That is my only point, but of course I appreciate that all the time that is necessary should be taken to be absolutely sure that implementation has been achieved. That is a different question.
Baroness Kennedy of The Shaws (Lab)
So the delay we were talking about is delay in the implementation of this legislation. I remind your Lordships of an example of that. The Human Rights Act passed in 1998. The point was made at the time that it would not come into operation until 2000, because it was accepted that there would have to be considerable training and learning before it could possibly take effect in the courts in a sensible way. We had to make sure that decisions would be made in a way that complied with that Act and the European convention. We recognised that, if you want to create change of that sort, there have to be concomitant changes in systems, training, lawyering and judging.
So I would certainly want to see evidence of more than four days of training. The International Bar Association is involved in training lawyers and prosecutors around the world in relation to, for example, coercive interrogation, as we politely call it, to prevent the torture of people who are arrested and to make sure that, to comply with the rule of law, we do not use those kinds of practices to extract confessions in our systems of law around the world, because we have learned that confessions extracted in that way are never reliable. Training takes place, but we all recognise that four days of training does not produce the goods. Two sets of four days of training, as we have had so far in Rwanda, do not create a change in the culture.
We are talking about something much more substantial and meaningful in changing systems. I remember, because I was in the radio studio with him at the time, when the Supreme Court’s judgment came out and Lord Sumption and I were asked, on the “Today” programme’s podcast, about the effects of it and the Government’s response that they were going to pass a Bill in which they said that the country was safe. He was absolutely shocked and said it would be disreputable to do such a thing. Why did he say that? He said it himself on the programme: it is the systems that are problematic here. The outcome of refoulement is a result of inadequate systems. To change them would be a substantial challenge, and not one that can be completed in a matter of months. The story is that somehow the evidence on which this was based was outdated, but we must have evidence of substantial change before we can possibly consider the Bill as an acceptable one to put through this House.
I certainly cheer on the amendment from the noble and learned Lord, Lord Hope, and any other amendments that may come forth that will delay this, but we know that this is really about an election that is coming up, in which this has become a very heated issue. There is a desire on the Prime Minister’s part to fulfil Ms Braverman’s dream: that she will see a flight go into the air to Rwanda, carrying on it some of these asylum seekers. That is the dream; that is the election flag that has to go up the flagpole. All I can say is that it would be unfitting, inappropriate and unworthy if this Parliament passed the Bill for that reason.
Lord Bishop of Lincoln
My Lords, I rise to speak because I suspect I am in a minority as one of the very few Members of this House who have had direct contact with Rwanda, having had 10 years’ engagement with the diocese of Kigali, the capital city, and the great joy of visiting the country and seeing life outside in the countryside. One of the most moving things of my nearly 40 years of ministry was praying at the national memorial for the holocaust in Kigali with a local bishop who had lost so many members of his family. He was still so distraught that I had to find the words for our prayer together.
I put on record that I have come across so many wonderful Rwandans who would be hugely great examples to us individually of the practice of forgiveness and trying to make life beautiful again after a terrible tragedy. I can think of one instance where I met a priest; most of his family had been murdered, and in an act of forgiveness he took the murderer of his loved ones into what was left of his family, because he felt there was a requirement upon him to demonstrate and show forgiveness in this terrible situation.
It is also true, in my experience, that Rwanda has done a remarkable job in developing its economy. I was going to say it was a “tiger economy”—that is perhaps the wrong fauna for the Great Lakes region, but there have been real strides forward in their economy. Of course, people have been very eager to support their President because he has largely delivered to them peace.
It is also my direct experience, relating to what the noble Baroness, Lady Kennedy, said, that the institutions of civil society remain substantially undeveloped. It seems to me that, although we may agree with the noble and learned Lord, Lord Hope, and might want to say that Rwanda could in the future be a third-party partner in dealing with these issues, I would strongly say that that day has not yet come.
Of course, I am not in principle against the idea of third-party partnerships; it is very interesting what we hear about Italy. It seems to me that what is required is a real, dedicated commitment to a partnership among western nations in seeking to see how this could be done effectively and generously towards those whom we categorise as criminals, many of whom have suffered dreadful trauma and persecution in their homeland, which is the only reason they have taken the risk and put themselves in the hands of these dreadful criminal gangs.
It is also very important that we take account of the fact that, if we are going to even think about the prospect of sending people to a third-party country, there has to be a guarantee, as evidenced in Amendment 8, that people have a right to return and establish their claims here. If this is not allowed, it is simply a case of our throwing the problem away. That seems to me to be simply immoral, and not something that we as a nation should be contemplating.
We need to look very carefully again at putting this burden on the people of Rwanda and how we might think much better about working together with other nations in developing a pattern that will help us, in the longer term, cope with huge further migration through climate change, which we have not even contemplated yet and which will affect us very deeply.
Baroness Butler-Sloss (CB)
My Lords, it is a great pleasure to follow the right reverend Prelate, with his fascinating and personal knowledge of Rwanda, and the very useful advice he has given us this evening. I have put my name to the seven amendments set out by the noble Lord, Lord Anderson of Ipswich, and I do not intend to refer in great detail to any of them, particularly at this time, because I would like to get home before midnight, if that is possible, and I am in the last group.
Shortly, the points I wanted to make are these: it is obvious that Clause 1(2)(b) is out of kilter with Clause 1(3). You only have to read Clause 1(3) to see that the Government of the Republic of Rwanda has “agreed to fulfil”—that seems to me to be partly in the present, but almost certainly partly in the future. In the treaty, which we pored over in the debate that I listened to and did not speak in—I thought enough people had spoken—the 10 requirements that we discussed are clearly not all fulfilled. The right reverend Prelate points out—and he knows; he has been there—that the structures are not all yet in place.
The noble and learned Lord the Minister made a brave effort to say that Rwanda is safe and, following discussions, will be safer. That is splendid wording, but it does not really work in this House, when we look at the fact that the Government want this House to say, despite our vote on the treaty debate, that Rwanda is safe when it patently is not. Speaking as a former lawyer as well as a fairly long-term Member of this House, I cannot believe that any Government are asking us to say that something is what it may well be—and for the sake of Rwanda, if it really wants our refugees, I hope it will be —when, quite simply, it is not there yet. Right around the Committee, we have all been saying that from the first few words, so how on earth can the Government expect the House to agree to a phrase that the,
“Act gives effect to the judgement of Parliament”—
Parliament including us—that Rwanda is safe?
I very strongly support what has been said by my noble and learned friend Lord Hope of Craighead. It seems to me that to some extent, subject to issues of modern slavery to which we will come in another group, the Bill could be partially redeemed by two points. One has been set out by the noble and learned Lord in Amendment 6, and the second is set out in the various amendments headed by my noble friend Lord Anderson of Ipswich about an independent reviewer. If you had the twin of “will be” when it is ready, and an independent reviewer to assist the Government to say that at least the requirements in Clause 1(3) and the 10 requirements in the treaty have been met, then I have no doubt that the Government could say, “Now we can send people to Rwanda”. However, I plead with the Government: I cannot believe that they are really expecting us to say that that which is not safe is safe at this stage.
The Earl of Kinnoull (CB)
My Lords, I am not sure that my noble and learned friend should call herself an ex-lawyer. That was very good indeed.
At Second Reading, I said that we live in a constitution that is akin to a three-legged stool, with Parliament, the Government and the judiciary in a balance between those legs. I think it is very important to realise how key to our constitution that stool really is. Clause 1(2)(b) represents grit in the relationship between those legs: the requirement that this House enters into a judgment that many in the House feel is very wrong, a judgment which is everlasting. At Second Reading, my noble friend Lord McDonald of Salford very eloquently spoke about the political risk within Rwanda at the moment. The judgment is largely in a vacuum, because a number of questions have been fired at the Minister about where we are with safety. That is very difficult for our House to do and is grit. That represents further grit because of course it will be something that the judiciary has to take account of when it comes to determine anything under the Bill.
That is why I find the amendment package that my noble and learned friend Lord Hope has put together so very attractive. I hope the Government will look at it for the reason of logic alone and for a second reason, because the second half of my submissions at Second Reading were to do with the Salisbury/Addison convention. That is a convention about creating a smooth relationship between two of the legs of that stool. Indeed, we are here tonight because of that convention: we are working late, sitting extra late tonight, in order to speed things through because part of that convention deals with speed of consideration.
I do hope the Government will think of the convention in relation to how the noble and learned Lord, Lord Hope, has expressed the amendments and the provisions in the Bill that represent grit in the relationship. We have a convention that is all about promoting a relationship, and we have a Bill before us that is all about putting grit in the relationship. This has to be thought of in terms of the convention.
Baroness Jones of Moulsecoomb (GP)
My Lords, each and every amendment proposed to this Bill shows the sheer nonsense of it. We are being forced by this Government to deny reality. We are being forced to create an enduring piece of legislation that states the proposition that Rwanda is “conclusively” safe, which cannot be rebutted even by conclusive proof to the contrary. This is Alice in Wonderland; it is complete and utter nonsense.
I have signed Amendments 6, 20 and 26 in the name of the learned Lord—I am sorry, it is very late—the noble and learned Lord, Lord Hope of Craighead. I have tucked myself under his coat-tails because they are incredibly sensible amendments. They at least require the Rwanda treaty to be given effect and to remain fully implemented for the Act to have effect.
However, even with that, I am not sure that we can legislate that Rwanda is conclusively safe, so my Amendment 93 would go further. It would require the whole Act to be scrapped on the day that the Secretary of State is presented with evidence that Rwanda is not conclusively a safe country. Noble Lords might call this a wrecking amendment; I would call it a huge dollop of sanity in the mad world of this Bill. Surely the Minister and all other noble Lords should support this. Why would anyone want a piece of legislation to exist on the statute book with a key provision that
“Every decision-maker must conclusively treat the Republic of Rwanda as a safe country”,
if Rwanda is not conclusively safe? Rwanda is either conclusively safe or it is not. If it is conclusively safe, why do we need legislation to force decision-makers to treat it as such? If it is not conclusively safe, why would we force decision-makers to treat it as though it is? This clause is either pointless or plainly false. I struggle to see how this Bill was ever written. Did lawyers really write this Bill? I cannot believe that anyone is going to defend it when it is so patently stupid.
Lord Inglewood (Non-Afl)
My Lords, I rise just to say that I entirely agree with those who have said that we should look carefully at the direction of travel suggested by the amendments from the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, and encourage the Government to do the same.
It seems to me that the Government have got themselves into a pretty strange position. In proceeding with what they want to do, they have given themselves a binary choice: either legislate a fundamental untruth or find a way of establishing a system that will bring about and give confidence on the safety of Rwanda. If they do not want to do the former—and they should not—they must investigate ways of doing the latter.
Lord Falconer of Thoroton (Lab)
My Lords, I shall first address the remarks of the right reverend Prelate the Bishop of Lincoln. Speaking entirely for myself, nothing I say is intended to cast any aspersions on the state of Rwanda, the suffering that it has gone through or the plight in which it currently finds itself. I found his remarks incredibly moving. The Supreme Court made clear that it was not a lack of good faith that had led Rwanda to be in the position that it is in; it was just that Rwanda did not have a system that could properly deal with the analysis of asylum claims in a way that would be acceptable to the commitments that we as a country have made to asylum seekers.
I agree very strongly with what the noble and learned Lord, Lord Hope of Craighead, and the noble and learned Baroness, Lady Butler-Sloss, said: that Clause 1, in so far as it says that
“Rwanda is a safe country”
is not right, and it would be wrong for us as a Parliament, or as the House of Lords, to agree to that which we know is wrong.
May I address the four alternatives that are now before the House as a means of trying to deal with that? First, the noble and learned Lord, Lord Hope, has proposed that one can give effect to the provisions of the legislation only if the joint committee, set up under Article 16 of the recent Rwanda-UK treaty, says that the agreement is being complied with, and that committee would have to act on the advice of the monitoring committee. In principle, that sounds quite a good idea. As the noble and learned Lord acknowledged, one should recognise—I do not say this in a disparaging way—that the joint committee is just the two Governments.
If it is the joint committee alone, that gives no additional assurance. Because the UK Government want to do this come what may, it is hard to imagine that the Rwandan Government are going to say that they are not complying with a treaty which they say they are complying with and have committed themselves to complying with. If it was only the joint committee under Article 16, that would not provide much protection, I say with some respect.
The amendment proposed by the noble and learned Lord, Lord Hope, says that the joint committee has got to act on the advice of the monitoring committee. Only if the monitoring committee positively advises that the agreement is not being complied with will the joint committee of the two Governments be prevented from giving the advice that it wants to give. I have no idea how this monitoring committee will work. It will presumably be 50:50 on each side. If it is paralysed, I do not know whether the noble and learned Lord’s proposed requirements would then be satisfied. If the joint committee was not getting positive advice one way or the other, it would still be able to give the assurance that one gives. Could that be dealt with by a number of tweaks? It might well be possible.
Subject to those points, I can see attraction in what the noble and learned Lord, Lord Hope, is saying. The only other point I have on his proposal is that the Minister appears to escape any duty at all. Should we not have it so that the Minister is subject to judicial review on the decision he takes about whether to implement the treaty?
Lord Hope of Craighead (CB)
My Lords, I am grateful to the noble and learned Lord, Lord Falconer, for his comments on the significance of the joint committee. I would introduce it only at the beginning. For the future, it is entirely a matter for the monitoring committee to advise on whether the system is being fully implemented, once it has started up. One could remove the joint committee altogether and just have it rest entirely on the monitoring committee; that would be very close to the position of the noble Lord, Lord Anderson, and indeed that of the noble Lord, Lord Coaker. We are working towards a solution of some kind, but I welcome very much the helpful comments of the noble and learned Lord.
Lord Falconer of Thoroton (Lab)
I am grateful. The other proposal, which my noble friend Lord Coaker has put his name to, as well as the noble and learned Lord, Lord Hope, is to get the monitoring committee to decide. Then one of the only wrinkles would be: how does this monitoring committee work? It would require a positive assertion by the monitoring committee that the terms of the agreement are being broken. If the committee cannot get that, for example because it is deadlocked, then this potential Act would be given effect to. That is the second alternative.
The third alternative is the proposal by the noble Lord, Lord Anderson, that there be an independent reviewer. If that reviewer says it is not safe, this potential Act would be given effect to, as I understand it, only if there is a resolution by the House of Commons saying that it is safe. That has some attractions, but I am not attracted to it at the moment. First, the House of Commons has already shown its willingness—not because its Members are dishonourable people but because they are whipped by the Government, who have a significant majority—to pass a Bill that uses the word “is”. Secondly, surely such a resolution has the same vice as the Bill: one is asking Parliament to sit in judgment on the question of whether Rwanda is a safe country, and that is an inappropriate activity for Parliament.
I am in favour of one or other of the proposals of the noble and learned Lord, Lord Hope, in Amendments 15 and 16, or the monitoring committee—subject to my anxiety about how it would work. I strongly submit that we should not let the Minister off the hook; he or she should be subject to judicial review.
Of course, one has great sympathy with what the noble Baroness, Lady Jones of Moulsecoomb, said. However, our attitude—although it sticks in the gullet—nevertheless has to be to try to make this Bill work. My own view is that, if you are going to do offshore processing or deportations to safe countries, the one thing you have to be sure of is that you are acting in accordance with the law.
What makes this Bill so discreditable is not necessarily the policy, which people can disagree with, of offshore processing in third countries, but trying to do something like that in breach of the law. We should be working to get to a point where we are acting in accordance with the law.
Lord Kerr of Kinlochard (CB)
I agree with the noble and learned Lord, but I would like to say a word in defence of the amendments in the name of the noble Lord, Lord Anderson of Ipswich. Mine is the louche, unlearned name on the otherwise very learned list, alongside the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile.
We would be in a different situation if the independent reviewer, in a reasoned public document, put forward the case that the country was not safe—that refoulement was happening or could happen and there were not adequate systems to stop it. Here, we are talking about the difficulty of working out what it will be like when the treaty is in operation. Then, the reviewer would be presenting the House of Commons and Secretary of State with a report which, let us say, is critical. Then, it would be more difficult for the House of Commons to conclude that it did not care about the evidence. If there was such evidence, unlike the present situation, the House would have to say, “We reject the evidence”. I therefore stick with my louche support for the learned amendment.
As for the other learned amendment in the name of the noble and learned Lord, Lord Hope of Craighead, I understand it and it seems to have much merit. It has two possible downsides. First, the monitoring committee works for the joint committee, which is strange when you think about it—you might think it should be the other way around. It would therefore be very important, as the noble Lord, Lord Anderson, said, that the monitoring committee’s reports be published in full.
The second possible downside is the composition of the committee. The noble and learned Lord, Lord Hope, spoke about one member of the committee. Another member is Alexander Downer. That seems to me to be a bit of a downer. This is a man who is chairman of Policy Exchange and who invented the Australian scheme. This is the man who pressed hard for push-backs—actually shoving the little ships off to Papua New Guinea—which is something our Royal Navy has always refused to contemplate. The committee has to be comprised of persons independent of both parties. I am not quite sure how independent Mr Downer is of the Government.
My name is also on nine amendments, I have to tell the noble Lord, Lord Anderson, and on the amendment to which the noble Lord, Lord Blunkett, spoke. I see some attraction in the Blunkett scheme. If the Government are convinced that the system in Rwanda is fair and convinced that asylum seekers are given a fair hearing and assessment, why should we not accept that, if they are given asylum status, they should come here? The beauty of this is that he is turning offloading into offshoring. The distinction is one that some of us in the House have not always seemed quite to follow.
Lord Murray of Blidworth (Con)
I thank the noble Lord for giving way. Does he agree that the divisional court in the Rwanda proceedings upheld the principle of remote, third-country processing—that it was lawful in UK law—and that decision was upheld in the Court of Appeal and was not appealed further to the Supreme Court? So I think the noble Lord would agree that it is unquestionably and entirely lawful.
Lord Kerr of Kinlochard (CB)
It is a breach of international law. The noble Lord made the same point when we had the same debate at Second Reading. It is at variance with the refugee convention and with the European Convention on Human Rights Articles 2, 3 and 13. It may be that in the UK domestic courts it is not seen as a problem; it certainly does not seem to be seen as a problem by the noble Lord, Lord Murray. For me, it is a problem. For a country which purports to support the international legal system, it should be a problem.
Baroness Chakrabarti (Lab)
My Lords, I do not think the Committee needs to apologise for an element of repetition and even circularity in contributions on the various groups, because that is the nature of the Bill before us. It is a relatively short Bill, but its provisions are interconnected, as are the different approaches that Members of the Committee have taken to amend them.
Let us take stock for a moment, because we have been on a bit of a stream of consciousness. Members of the Committee have expressed different opinions about whether offshoring per se is acceptable. To my mind, the exchange we have just heard reveals that we do not currently have legal authority in the UK that says that processing asylum claims in another country is unlawful. I agree with the noble Lord, Lord Murray of Blidworth, on that, but I have to say that my instincts are with the noble Lord, Lord Kerr of Kinlochard, on the fact that this is going to be debated for many years to come and we have not had higher court determination of it. It is a debated point internationally. That is a point we can put aside for the moment. There is another question in this Bill, about what is and what might be in the future.
I think that most Members of the Committee have either agreed or even reluctantly conceded that what is is a little different from what we are working on and what might be in the future, which then takes us to how we change the future and how we evaluate changed facts in the future. Then, under the scheme of what is before us, there is first the question of the treaty and then the question of the Bill before us that the Government propose to make an Act. I think there is some considerable support for Amendment 14, which says that the treaty—which is currently a very important trigger in the Government’s scheme, because it is the treaty coming into force that makes the Act come into force—needs to have been effectively implemented, so that facts change on the ground in Rwanda before even the treaty that is the current trigger for the Act can come into force. I certainly agree with that. There are different approaches in the amendments as to how that should be measured, but I think it is just logical that until the treaty, as suggested by your Lordships’ International Agreements Committee, is effectively implemented, even under the scheme of the Bill as drafted, the Act should not come into force.
Then we have a range of amendments offered in subsequent groups about what commencement should look like in the Bill, and later we will have very important debates about judicial oversight and not ousting the jurisdiction of both domestic and international courts.
Lord Horam (Con)
I have two points. First, to correct the noble Lord, Lord Kerr, there is precedent in the Australian situation, in that, under the Australian rules, the Government of Nauru make the decisions, with assistance, training and support from the Australian Government. The Rwanda situation is exactly the same. We are trying to bring in training, support and assistance to the Rwandan Government, so the two examples are exactly the same. Australia’s, which has been working successfully for 10 years, has all-party support and is hugely successful. If I may repeat the point I made earlier in the day, there is a great prize here: if we can get genuine agreement on this subject, there is the prize of having a proper, whole immigration policy which the whole country can support, not just this Rwanda business.
Lord Kerr of Kinlochard (CB)
I hate to cross swords with the noble Lord, but I am afraid that what he is saying is factually incorrect. The Australian hearings in Nauru are for asylum in Australia. The hearings that the Rwandans would carry out in Rwanda for people who came here would be for asylum in Rwanda.
Lord Horam (Con)
The people who are being investigated in Nauru want to go to Australia. Similarly, the people who will be investigated in Rwanda want to come here. The situation is exactly the same.
Baroness Chakrabarti (Lab)
Within that debate about processing and offshoring is a question as to whether, if you succeed in your asylum claim when you are processed over there, you then stay over there or come back to the country from which you are sent. That is a crucial debate that is being fudged here.
Lord Horam (Con)
The situation here is exactly analogous to that in Australia, which has been working successfully for 10 years.
The other point in this debate, in reference to the interesting amendment from the noble and learned Lord, Lord Hope, is the importance of the monitoring. I agree with him and the noble Lord, Lord Anderson, that the more transparent and obvious this is, the better it will be for everyone. Fundamentally, we cannot expect the law to do everything. We all know that there are many laws which are not adhered to in practice. It may go wrong on the ground floor in a way that lawyers, for all that has been said in the treaty, are not aware of until it is too late. You therefore need a strong monitoring committee whose information is available to this House and the general public, because you cannot do it any other way. The law cannot encompass what may happen in future.
That is a crucial point from this debate. I would have thought that my noble friend the Minister could accommodate the relative transparency of the monitoring committee, which has independent people on it. The noble Lord, Lord Kerr, may not like some of them because they disagree with him, but the committee is none the less independent. Precisely because of that, it will have people of differing views. The Government should look at that in response to the tone of this debate.
The Lord Bishop of Southwark
My Lords, I will speak in favour of this group, particularly Amendments 6, 14 and 20, but I wish to avoid the circularity, as the noble Baroness, Lady Chakrabarti, was saying, that has been inevitable on something so interconnected.
The Home Secretary has said that
“we will not operationalise this scheme until we are confident that the measures underpinning the treaty have been put in place; otherwise, the treaty is not credible”.
This set of amendments enables this approach, so if the Government are not willing to accept these amendments, can the Minister explain how they will ensure that the obligations of the treaty—to quote the treaty itself—
“can both in practice be complied with and are in fact complied with”?
This is an even more pertinent question since any recommendations arising from the monitoring arrangements in the treaty are non-obligatory. To take just one example from the Government’s own evidence pack, a new asylum Bill is required in Rwanda before an assessment of the implementation of the treaty can be made. When will this legislation be published and will it be, to use the official term, fully operationalised before any flights take off?
Much wisdom has been articulated in this Chamber today. I urge the Government to listen and act accordingly.
Lord Coaker (Lab)
My Lords, my Amendments 64 and 65 seek to address the problem that all noble Lords have been seeking to address: Clause 1(2)(b), which basically says that Rwanda is a safe country. The noble and learned Lord, Lord Hope, was quite right, when moving his Amendment 6, to point out that the word “is” is absolutely fundamental to the meaning of the Bill and is why there is such a debate among your Lordships.
The Government are stating that Rwanda is safe, but all the evidence points to it perhaps becoming safe in the future or, in the words of the noble and learned Lord, Lord Stewart, “working towards” being safe. That is not the same as “is” safe, which is the fundamental dilemma. I say to the Government that if something is completely and utterly wrong—such as the use of the present tense when it should be a future tense—it does not matter what you do, you simply cannot answer the questions that are being put. Two and two has to make four, yet the Government are arguing that two and two is three. It is ridiculous, it is nonsense, and it will not stand up.
I do not mind if my Amendments 64 and 65 are not legally watertight. I accept that. I am not sure the amendment in the name of the noble and learned Lord, Lord Hope, is the best amendment, though I am sure it will be legally watertight. The noble Lord, Lord Anderson, has proposed an independent reviewer. There can be a debate between us as to which is the best option, and there may be other, better options. I would prefer that the whole Bill was opposed and defeated, but we have said we are not going to block or delay it. I know it is disappointing to some, but that is the reality of where we are.
What we are seeking to do, therefore, is to work with others to mitigate the impact and improve the Bill. However, the Government’s response so far has been to say that all the criticisms are not correct and Rwanda is safe because we are legislating to say it is; the rest of the debate and the very reasonable points that are being put forward are dismissed. I am sure when the Minister replies, he will—unless I am mistaken —have a brief which says that the monitoring committee has established in Article 15 of the treaty and there is no need for any of this to be included.
That way lies a legislative impasse. We are asking the Government to listen to what is being put forward. The real question of the debate is not whether Amendment 6, 16 or 64 is better, but what are the Government going to do in response to the legitimate criticisms being made? We want some sort of mechanism to understand how the Government are going to implement the treaty and ensure that implementation is successful. What happens if it is not? What happens if the obligations are put forward but not achieved?
The noble and learned Baroness, Lady Butler-Sloss, asked: if Clause 1(2)(b) is right, why do you need Clause 1(3)? The Minister could not answer her question because Clause 1(3) sets out the future obligations on Rwanda, whereas Clause 1(2)(b) says that there is no need for those obligations because it is already safe. The Bill contradicts itself, as the noble and learned Baroness, Lady Butler-Sloss, pointed out. However, all the Government say is that we are wrong and they are right and so they are going to carry on. That is no way to legislate. The Government want their Rwanda Bill, so they are going to get their Rwanda Bill. The least they can do, however, is listen to what people are saying and make the Bill make sense and actually do what it says it will.
As for my Amendment 64, I am perfectly willing to look and see whether other amendments are better or whether there is a better way of doing this. The real question is: are the Government simply going to dig in and refuse any amendment or appeal to them to make the Bill more logical than it currently is? I say to the Minister that we will have to come back to this on Report. It is clearly important for us, in deciding how we do that, to hear what the Government have to say.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords for speaking in this group, and in particular the noble and learned Lord, Lord Hope, for his introduction.
The UK and Rwanda entered into the migration and economic development partnership with a commitment to develop new ways of managing flows of irregular migration by promoting durable solutions, and so breaking the existing incentives that make people embark on dangerous journeys to the UK. The UK and the Government of Rwanda have a shared vision regarding the necessity for the global community to enhance international protection for asylum seekers and refugees, underlining the importance of effective and operational systems that provide protection to those most in need.
This partnership is part of a suite of measures to tackle illegal migration and builds on wider collaboration with Rwanda on many shared issues. As I have set out previously, we have assurances from the Government of Rwanda that the implementation of all measures within the treaty will be expedited. The treaty itself will follow the usual process with regards to scrutiny and ratification. I say to the right reverend Prelate the Bishop of Norwich that I am afraid I cannot improve on that, and I will continue to defer to the Home Secretary.
I would like to provide reassurance to noble Lords that the treaty enhances the role of the previously established independent monitoring committee, which will ensure that obligations under the treaty are adhered to in practice and will be able to take steps to address any concerns at an early stage. Therefore, the Government argue that the amendments in the name of the noble and learned Lord, Lord Hope of Craighead, are not necessary, although I of course take his points about words. As the noble and learned Lord said, the Bill reflects the strength of the Government of Rwanda’s protections and commitments given in the treaty to people relocated to Rwanda in accordance with the treaty. It addresses the point made by the Supreme Court that Rwanda’s systems could be strengthened, on the basis of the facts before the Supreme Court at the time.
Amendment 14 in particular would impose a requirement for the joint committee for the migration and economic development partnership to provide a declaration to the Secretary of State confirming that the mechanisms specified in Article 2 of the treaty have been implemented. Without such a declaration, the effect of the amendment would be that the treaty could not be regarded as fully implemented. This is unnecessary. We have assurances from the Government of Rwanda that the implementation of all measures within the treaty will be expedited.
I turn to Amendments 15, 16, 77, 83 and 88 in the name of the noble Lord, Lord Anderson of Ipswich, and Amendments 64 and 65 in the name of the noble Lord, Lord Coaker. The monitoring committee is independent of both the UK and Rwandan Governments. It was established under the memorandum of understanding that originally underpinned the partnership. The treaty enhances the monitoring committee’s role. Article 15 of the treaty provides that the UK and Rwanda must establish and maintain a monitoring committee for the duration of the term of the agreement. This means that both parties are obliged to ensure that the monitoring committee continues in operation for the life of the agreement, and this obligation is binding in international law.
The Government have already established robust reporting mechanisms. The monitoring committee’s terms of reference and enhanced monitoring plan are available publicly on GOV.UK. They set out that, during the period of enhanced monitoring, the monitoring committee will report to the joint committee, which is made up of both UK and Rwandan officials—as set out in Article 15(4)(b)—in accordance with an agreed action plan, which will include weekly and bi-weekly reporting as required.
It would be helpful to go into more detail on this. The treaty includes enhanced provisions to provide real-time independent scrutiny of Rwanda’s asylum procedures, aimed at preventing the risk of mistreatment contrary to Article 3 of the ECHR before it has the chance to occur. This addresses the findings in the Supreme Court proceedings that under the previous arrangements, as set out in the memorandum of understanding, the work of the monitoring committee would necessarily be retrospective.
In addition, the new provision of the monitoring committee’s own complaints system will allow relocated individuals and their legal adviser to make direct and confidential complaints regarding any alleged failure to comply with the obligations in the agreement. That enhanced phase will ensure that monitoring and reporting take place in real time, so that the monitoring committee can rapidly identify, address and respond to any shortcomings or failures to comply with the obligations in the agreement, identify areas for improvement, or urgently escalate issues prior to any shortcomings or breaches placing a relocated individual at risk of real harm. That will include reporting to the joint committee co-chairs within 24 hours in emergency or urgent situations.
As per Article 15(4)(c) of the treaty, the monitoring committee will make any recommendations to the joint committee that it sees fit. The monitoring committee will otherwise produce a formal written report for the joint committee on a quarterly basis over the first two years of the partnership, setting out its findings and making any recommendations. Following notification to the joint committee, the monitoring committee may publish reports on its findings as it sees fit. At least once a year, it will produce a summary report for publication. We consequently consider these arrangements, which have been carefully agreed with the Government of Rwanda and will be binding in international law, to be sufficient to ensure continued compliance with all the terms of the treaty.
Finally, I am grateful to the noble Lord, Lord Blunkett, for his Amendments 8 and 72. Clause 1 sets out the obligations to which the Government of Rwanda have committed under the new treaty. The proposal in these amendments does not reflect the arrangements under the treaty. Requiring persons whose claims are successful in Rwanda to be returned to the UK would be against the spirit and intention of the treaty and the partnership. Those relocated to Rwanda are not intended to be returned to the UK, except in very limited circumstances.
It is the Government of Rwanda who will grant refugee status to those relocated to Rwanda through the treaty, which will underpin the migration and economic development partnership, not the UK Government. The grant of refugee status in Rwanda does not confer on that person any rights in the UK, as would be the case for any other person granted refugee status in Rwanda who had not been relocated from the UK. Anyone who wishes to come to the UK in future would have to apply through legal routes—through a work or family route. However, there would be no guarantee that they would be accepted.
As my noble friend Lord Murray of Blidworth noted, relocating asylum seekers to a safe third country to process their claim is compliant with the UK’s obligations under the refugee convention, as confirmed by the High Court and the Court of Appeal. The Supreme Court did not disturb that finding.
Lord Blunkett (Lab)
Perhaps the Minister will answer two very simple questions. First, where else in the world have people been offshored but actually offloaded, as opposed to having the process completed and their refugee status acknowledged in the country they have reached? Secondly, what happens if people do not claim asylum in Rwanda?
Lord Sharpe of Epsom (Con)
Under the terms of the Bill, a person will be relocated if they have made a protection claim—that is, an asylum claim—in the UK. But, to be clear, we can also remove those who do not. On the other point, we have heard a very lively debate on other examples from around the world; I am afraid that I am not an expert on those examples, so I am not able to opine further.
Lord Hannay of Chiswick (CB)
My Lords, I was living in hope that the Minister would respond to my comments. On an earlier group he declined to answer my questions about the compatibility of what is being proposed by the Government with the criteria set out by this House some weeks ago, with a majority of 43, as being necessary to have been operationalised and in effect before Rwanda could be considered a safe place. Will he now take the opportunity to work his way through those 10 points? I am of infinite patience, but he said that he would do so on a later group. Can he now do so, please?
Lord Sharpe of Epsom (Con)
I am afraid that I will not at this precise moment, but I again defer to the Home Secretary, who made his views very clear on operationalising the Bill.
As my noble and learned friend Lord Stewart of Dirleton set out earlier in the debate, Rwanda has a strong record of welcoming asylum seekers and looking after refugees, and it has also been internationally recognised for its general safety and stability. Those relocated to Rwanda will be given safety and extensive support, as detailed in the treaty. I am grateful to the officials in the Government of Rwanda for all their efforts, particularly for the provisions for real-time and comprehensive monitoring of the end-to-end relocation and asylum process for individuals relocated under the partnership. I hope that I have at least been able to go some way to responding to the amendments from the noble and learned Lord, Lord Hope, and that, on that basis, he is content not to press them.
Lord Hope of Craighead (CB)
My Lords, I am grateful to all noble Lords who have spoken in this very interesting debate. I am particularly grateful to those who have offered some support to my Amendment 6, which seeks to reword the clause with the word “is” in it, substituting words that are far more in keeping with certainly what I think the majority of the Committee has been discussing throughout the proceedings this afternoon. I am very disappointed with the Minister’s reply, because he simply brushes it aside as not necessary. However, anybody who listened to the debate with care would see that it is absolutely necessary to change the wording of that clause, and we will certainly have to come back to it on Report. As for the various options, we have a menu. I think those of us who have put forward suggestions as to how the matter might be regulated will think carefully as to where we go from here, but we will certainly come back to it on Report.
My only other point is that I was very taken with the point made by the noble Lord, Lord Blunkett, about whether the House of Commons appreciated the significance of offloading people to Rwanda, and particularly those who, when they reach there, do not claim asylum. It is a horrifying situation, with these people just cast adrift in a country which, as the noble Lord, Lord Kerr, said, probably has no connections with what they were looking for—and indeed, they probably had a variety of good reasons for coming to the United Kingdom. It is a deeply disturbing situation and I have no doubt that the noble Lord, Lord Blunkett, will pursue the matter a little further, because it really illustrates the harshness of the measure that we are being asked to consider. Having said all that, I withdraw the amendment.
Viscount Hailsham
Viscount Hailsham (Con)
My Lords, I will speak also to Amendment 13. I will be very brief, because the hour is late. At this time I am usually putting my dogs out, but on this occasion I have the pleasure of addressing your Lordships’ House.
The effect of Amendment 9 is to delete Clause 1(4), and the effect of Amendment 13 is to delete Clause 1(6). It is worth just reminding your Lordships what these two clauses say. Clause 1(4) says:
“It is recognised that … the Parliament of the United Kingdom is sovereign, and … the validity of an Act”—
any old Act, incidentally—
“is unaffected by international law”.
You then go to Clause 1(6) to see what is meant by “international law”, and that is everything to which we have ever put our name, which is there in very considerable detail. So the first question that your Lordships should ask yourselves is, why on earth is it there? I have no doubt that, as a matter of strict law, the statements are correct, but why are they there? They serve no legislative purpose whatever. I think I know why they are there: it is to provide comfort to the Braverman wing of the Conservative Party—and I, for one, do not wish to provide comfort to that wing of the Conservative Party, which has been bringing disrepute on the party which I have served for 40 years.
We then go on to consider: does it serve a purpose? Clearly, it does not. But what it does do is damage our reputation for probity, because any bystander reading the Bill will come to the conclusion that the given word of the United Kingdom, expressed in treaties and in international law, is not worth credit. I do not wish to give people that interpretation. Nor, for that matter, does the report of the Select Committee on the Constitution of your Lordships’ House, published on 9 February.
I commend to your Lordships paragraphs 54, 56 and 57. Paragraph 54 acknowledges that it is true that the validity of an Act of Parliament in domestic law is not affected by international law. Nevertheless, the United Kingdom is still subject to the provisions of international law. Paragraph 55 states:
“We agree with Lord Bingham that respect for the rule of law requires respect for international law”.
Paragraph 56 states:
“Legislation which puts the UK in breach of international law undermines the rule of law and trust in the UK in fulfilling future treaty commitments”.
The summary section, paragraph 57, states:
“We reiterate that respect for the rule of law requires respect for international law. Legislation that undermines the UK’s international law obligations threatens the rule of law”.
It concludes:
“We invite the House to consider the consequences should the enactment of this Bill in its current form breach the UK’s international obligations”.
These two clauses are unnecessary. They are damaging to our reputation, serve absolutely no legislative purpose and should be removed from the Bill. I beg to move.
Baroness Chakrabarti (Lab)
My Lords, I am very proud to have signed the two amendments tabled by the noble Viscount, Lord Hailsham. When I first looked at them, I thought that, given the scale of obscenity that this Bill perpetrates, maybe this is flotsam— maybe this is just stating the obvious that for many years we have passed Acts of Parliament and sometimes aspects of domestic legislation have subsequently been found to be in breach of international law. As a matter of domestic law, a statute is not automatically invalid because it breaches international law without incorporation of the kind that we had with the EU and the Human Rights Act.
However, having spoken to the noble Viscount and thought again about the contemporary implications of provisions such as those in Clause 1(4) and Clause 1(6), I felt compelled to agree with him and to sign up to his amendment. We are sending a signal, initially to domestic civil servants, diplomats and Ministers, including in the context of the Ministerial Code, that we do not think our international obligations matter. That is a very significant cultural concern. It was perhaps the noble Viscount who made the point in relation to the Rwanda treaty earlier that we are saying, in the context of this Bill as a whole, that it is going to be alright, that Rwanda is not just going to be safe in the future but we can assume that is it safe now because of this treaty, this international binding agreement that Rwanda will of course respect because it is binding in international law—while simultaneously we are saying that international law does not affect the validity of UK law.
That is an extraordinary position, and an extraordinary position to put UK civil servants in—whether in the Border Force or the Home Office or whether they are diplomats anywhere in the world. Perhaps my noble and learned friend Lord Falconer of Thoroton will comment on this in a while as a member of the Constitution Committee. There are real tensions for Ministers and their duty to comply with the rule of law to put a provision such as this in primary legislation, notwithstanding the traditional point about the delicate relationship between the validity of domestic law and international law.
Then there is the bigger, existential question. At this particular moment in the world, in its state of insecurity, the United Kingdom’s position on Russia and Ukraine, events in the Middle East, Houthis and China is to say that international law matters. Across the Atlantic, Mr Trump has made some remarkable comments about his NATO allies. We are saying one thing, including with our arms, military support and rhetoric, about the importance of international law—“Do not breach it, because if you do, you will find us standing in your way”—while we pass a provision like this at the same time. I apologise to the noble Viscount for not seeing the vital importance of his amendments to begin with, but I certainly do now.
Week after week your Lordships’ House has noble Lords, including Ministers, talking about various parts of the world and the importance of the UK as a permanent member of the Security Council, and everything it will do and has attempted to do over many decades, including by military force, to uphold the international rules-based order— and then there is a dinner break or a change of personnel, and we have the Home Office back here saying that it will pass legislation to state that international law does not matter. That cannot continue. For those reasons, I am proud to support the amendments of the noble Viscount, Lord Hailsham.
Lord German (LD)
My Lords, the noble Viscount, Lord Hailsham, mentioned the Constitution Committee, and Amendment 10 in my name also seeks to reinforce the position of that committee’s reports to this House. It comes to something when an amendment has to try to define the purpose of this House, but the amendment states that
“the primary responsibility of Parliament and the courts is to uphold the constitution of the United Kingdom, including that constitution’s fundamental commitment to the rule of law”.
The bit we are talking about here is the separation of the two legs of the stool, as mentioned by the noble Earl, Lord Kinnoull—Parliament and the courts.
It is the role of Parliament to enact legislation, and it is the role of the courts to apply legislation to the facts. Clause 1(2)(b) breaches that separation of powers between Parliament and the courts. Further to that, Parliament is overriding the role of the courts by replacing a factual assessment of the courts with a deemed factual assessment by Parliament. The courts have procedures to evaluate evidence and determine the facts. In asylum cases they assess safety and risk daily. Parliament exists to legislate rather than make these assessments based on the valuation of evidence. Although the sovereignty of the UK Parliament is an established principle of the UK constitution, there are huge consequences when legislation is enacted which significantly impacts that separation of powers. The Bill is a dangerous precedent in which legislation could be used to reverse factual conclusions, jeopardising the rule of law as well as the separation of powers.
We may think that this legislation is for other people in our society—for people not like us—but the precedent this sets can be taken and applied more widely to achieve a political aim. We need to be alive to how marginalised people in our society are treated, and this is a marker of the values and priorities of our Government, who make decisions that affect us all.
It is clear from the debates in Committee that Members are not comfortable with what the Government are trying to do with this legislation: to replace the findings of fact of the highest court in the land with their own assessment of fact based on evidence yet to exist, in practice. We would mock other countries for trying to do that; that is why this amendment is so important, to lay down what Parliament and the courts are for.
Lord Hannay of Chiswick (CB)
My Lords, I support the two amendments tabled by the noble Viscount, Lord Hailsham, which are entirely valid. It strikes me as a bit odd that the Government assure us, again and again, that nothing in the Bill is in breach of our obligations under international law. They say that with great determination, and I am not suggesting that they do not believe it, but, in that case, these clauses are completely, totally and utterly unnecessary. On the other hand, if the Government have doubts about it—and certainly, the Home Secretary was bound to give a warning that he was not absolutely sure this would pass muster under our international obligations—then of course they want to put clauses like this in, which totally invalidates the claim that they are not breaching international law.
I ask the Minister to reply to a very simple question; I know there is a reluctance to reply to questions, but let us try this one. For a very long time, this Government —this country—worked to the principle of “My word is my deed”. Is that still so? Yes or no?
Baroness Lawlor (Con)
My Lords, I welcome the Government’s determination to stop the boats, and I commend the provisions to disapply six sections of the Human Rights Act 1998 and to leave open to a Minister of the Crown whether to comply with an interim remedy from a court or tribunal that prevents or delays removal. I wish the Government success and hope the Bill will succeed, but it needs further tightening to avoid potential legal challenges that would prevent it from achieving its aims.
My Amendment 32 therefore is to disapply, for the purposes of the Bill, the relevant international arrangements and other law that prevents the UK from controlling its borders. The first reason for this amendment is a practical one. It is pointless to make a law that is unlikely to work. That, sadly, seems to be the case for the present Bill unless it is amended. The second reason is a deeper one. There is no doubt that there is a popular wish for the small boats to be stopped, and that one of the reasons why the Government were elected was to control our borders. Unless they make a law strong enough to withstand whatever challenge might be brought to it through national or international law, the Government will fail the people on whose support the laws made to govern Britain should be grounded. Trust in the democratic system, with its political parties, Parliament, Government and the judiciary, will be lost.
I do not accept the narrowness of contemporary theory about the dominant position that international treaty law should command. The apparent demand that international law should trump UK law is a form of legal and ideological utopian internationalism.
Lord Falconer of Thoroton (Lab)
Is it therefore the noble Baroness’s position that if there were extensive refoulement by Rwanda, that would not be a reason for not having the Bill?
Baroness Lawlor (Con)
That is not my view. My view is that, none the less, given the ingenuity of many noble and learned Lords in this House, and members of the judiciary, barristers and solicitors outside this Chamber, there may very well be intelligent and ingenious challenges that will hold up the operation of the Bill. That is why I want to bring forward my amendment.
By contrast, there are treaties that govern trade, diplomatic or military alliances, and they deal with the national interests of a state and, at one remove, its people. Many who advocate the pre-eminence of international law base themselves on theories of universal rights formulated in the heady days of treaty-making in the decades after World War II—for a European world, by and large, and circumstances very different to our own. These arrangements have provided a quasi-legal framework—
Baroness Bennett of Manor Castle (GP)
I am sorry—the phrase “for a European world” makes me wonder whether the noble Baroness believes that internationally agreed human rights should apply around the world and not just in Europe.
Baroness Lawlor (Con)
I thank the noble Baroness for her interjection. I am referring to the treaties emerging from the post-Second World War world, which was very much a European world at that time, to deal with circumstances such as the Holocaust and others, which had been left over from and arisen from it. I agree that there has been constant movement in this area. For instance, the European court at Strasbourg continues to make judicial interventions that sometimes try to push the European Convention on Human Rights much further than it was initially drafted to cover.
However, if I might continue, these treaties were conceived for a European world, by and large, and circumstances very different from our own. As I have said, these arrangements provide for potentially unlimited numbers of people from outside this country to command priority over the express and explicit wishes of its citizens.
Today, mass immigration threatens the democratic arrangements of western countries, the political systems on which they rest, and the stability on which societies and their economies depend. The threat does not stand over Britain alone. The failure of Governments all over Europe to stop clandestine or illegal immigration is destabilising them and their political arrangements. The difficulty of controlling long land borders all over Europe and the difficulties thrown up by the Schengen rules—now, I fear, ignored in many cases—have brought instability and undermined the democratic order. So too have international obligations embedded in domestic law and constitutions. The Sweden Democrats, who advocate tight controls on immigration, have shot to being the largest party in the centre-right governing bloc. For Denmark’s left and its social democratic Prime Minister, Mette Frederiksen, Denmark’s greatest challenge is non-western immigration. Italy can no longer process the volumes of asylum seekers arriving in small boats in Lampedusa and has called on the EU to help. France passed a measure on immigration, only to have the very amendments that had allowed it to pass, after 18 months to two years of wrangling, struck down by the constitutional court.
The UK is in a more fortunate position than these countries, since it is subject neither to Schengen nor the constraints of EU membership. This country and its people have the power to make their own laws. Their legitimacy derives not from arrangements made for times and circumstances different from our own—for a Eurocentric world, to be interpreted by internationalist institutions at a remove from democratic accountability that are often unaccountable for the consequences of the rules they liberally apply. I refer to my noble friend Lord Howard, who is not in his place: the question of democratic accountability must be central to any debate on controlling the UK’s borders.
Our Government have indeed recognised this in drawing up the present Bill, but they have held back from the final measure needed to make it effective. My amendment, like the same one proposed in the other place, will ensure that the Bill is fit for purpose—a purpose fervently desired by the people of this country.
Lord Jackson of Peterborough (Con)
My Lords, I rise to support the amendment in the name of my noble friend Lady Lawlor. I will speak generally about the Bill very briefly, and the amendment, and also say why I strongly oppose the amendments in the names of my noble friend Lord Hailsham and the noble Baroness, Lady Chakrabarti, which are pernicious and dangerous. I cannot believe that, when my noble friend Lord Hailsham sought election in the county constituency of Sleaford and North Hykeham in 2010, he would have told his constituents that he would seek to disregard the rights and privileges of Parliament in favour of supranational legal entities and international treaties, because I suspect that that would not have been a very popular point of view to take. But that seems to be the logical implication of the amendment he has put forward today.
The Bill does contain some important statements of principle, in that it reasserts the sovereignty of Parliament and its right to legislate to cut through the morass of alleged international norms which currently frustrate the ability of the United Kingdom to control its own borders, in Clause 1(4). The partial disapplication of aspects of the Human Rights Act—
Baroness Butler-Sloss (CB)
Does the noble Lord realise that the Government, and previous Governments, have signed and ratified the international agreements and treaties about which we are talking?
Lord Jackson of Peterborough (Con)
Well, I will develop my argument about the tension between domestic legislation, parliamentary sovereignty and the rights and privileges of Parliament, and the international obligations and a universalist human rights regime which many noble Lords seem very content to support in preference to the former.
Lord Falconer of Thoroton (Lab)
I apologise for interrupting the noble Lord, whose complaint appears to be about supranational bodies. I do not know if he is aware—I am sure he is—that his own amendment disapplies
“any provision made by or under the Immigration Acts,”—
that is domestic law—
“the Human Rights Act 1998”—
that is domestic law—and
“any other provision or rule of domestic law (including any common law)”.
Why is he complaining only about supranational bodies when his amendment seeks to disapply great tranches of domestic law?
Lord Jackson of Peterborough (Con)
Well, the noble and learned Lord will be well aware that the Human Rights Act 1998, for instance, arose from the European Convention on Human Rights and the obligations in domestic legislation to that particular convention. I am sure there are other examples—
Lord Jackson of Peterborough (Con)
The hour is late, so if the noble and learned Lord will permit me—
Lord Falconer of Thoroton (Lab)
I would be grateful for an answer to the question of what the noble Lord says about
“any other provision or rule of domestic law (including any common law)”.
Nobody could suggest that was derived from abroad.
Lord Jackson of Peterborough (Con)
As the noble and learned Lord will know, the amendment is worded such that it is declaratory and unambiguous. I am glad he has allowed me to make the point that the amendment my noble friend Lady Lawlor and I put down is explicit and unambiguous, so that it cannot be misinterpreted further down the line, outside this Chamber in the judicial setting. That is why it is copper-bottomed. It may not be quite to his liking, but it is there for a reason and the wording serves a specific purpose.
I will continue, as the hour is late. As I have explained, the amendment aims to disapply, for the purposes of this Act, the relevant international arrangements and other laws which prevent the UK controlling its borders, as the people of this country have elected their Government and their Members of Parliament to do. To that end, the laws we pass in this Parliament must be clear and unambiguous. The noble and learned Lord, Lord Reed, the President of the Supreme Court, in dismissing one claim in a judgment on 15 November—that of ASM, an Iraqi—said that a court may not
“disregard an unambiguous expression of Parliament’s intention”.
I agree with what my noble friend Lady Lawlor said about the narrowness of contemporary theory and the universalist view, a logical corollary of which leads to a belief in open borders. It is practically impossible, in the current regime, for us to control our borders while we remain encumbered by international obligations which seek to subvert and undermine the sovereignty of this Parliament.
Lord Falconer of Thoroton (Lab)
I completely agree with the noble Lord, Lord Jackson of Peterborough, that we do indeed need to address the immigration problem, but surely it would be better to address it in accordance with the law than in breach of the law.
Lord Jackson of Peterborough (Con)
I hope to address the point made by the noble and learned Lord, Lord Falconer. Yesterday, I was in Huntingdon town hall watching a play recreating the trial of Charles I, which took place from 20 to 30 January 1649. Obviously, it did not end well for Charles I, who was arraigned on a charge of treason for making war against his own people. What he really did, of course, was that he usurped Parliament. He grabbed for himself the age-old privileges, that Parliament then said it bestowed upon itself, of a sovereign Parliament. It was the ultimate demonstration of the rights and privileges of that Parliament to put to death for the first time in history its own King. The point is that the sovereignty of this place is a precious thing, and I think that the amendment put forward by my noble friend Lord Hailsham unbalances the three-legged stool that the noble Earl, Lord Kinnoull, who is no longer in his place, referred to in his earlier comments.
I draw attention specifically on that issue to—noble and learned Lords will no doubt be aware of this reference—AV Dicey’s doctrine of the supremacy of Parliament. The eighth edition of the textbook, Introduction to the Study of the Law of the Constitution, was published in 1915. It outlines the concepts of parliamentary sovereignty and the supremacy of Parliament. The three key points of parliamentary supremacy were that: Parliament can make any laws, it cannot be overridden by any body and cannot bind its successors nor can it be bound by its predecessors. The wider point is that we are a dualist Parliament. We do not cut and paste international treaties into law without proper scrutiny and oversight. Obviously, that involves primary and secondary legislation going through the proper procedures in this Parliament. That has been upheld by the Appellate Committee of the House of Lords in its time and of course by the Supreme Court. Treaty obligations have effect in domestic law only so far as they are expressly incorporated into domestic law. The sovereignty of Parliament is fundamental to our rule of law and cannot be circumscribed by international law, opinions or even conventions.
In the case of R v Lyons in 2002—it is a very important point, so I hope noble Lords will forgive me if I read it in full— Lord Hoffmann, stated that
“it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them... It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. ... The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not”.
In Bradley and Ewing’s authoritative book Constitutional and Administrative Law, it is clearly stated that the legislative supremacy of Parliament is not limited by international law:
“the courts may not hold an Act void on the ground that it contravenes general principles of international law”.
Indeed—as the noble and learned Lord, Lord Falconer, will be aware—the Labour Government in 1998 specifically reaffirmed the sovereignty of Parliament in relation to the Human Rights Act.
The amendment that we put down specifically makes that point. As I draw to a finish, I want to say to noble Lords that convention and international treaty obligations can be circumscribed and undermined to an extent by government. I draw noble Lords’ attention, for instance, to the prisoner vote issue of 2005. When I served in the other place, it was very much the settled view across the parties, including the Labour Government and the leader of the Opposition, that we would not accept prisoners who had been incarcerated with custodial sentences over a certain period receiving the vote. That was anathema to David Cameron, the case being Hirst v UK (No. 2) ECHR 681 [2005]. There was no outcry or uproar then; there was a settled consensus in this sovereign Parliament that the British people were not prepared to subsume their views, attitudes and opinions on prisoners sentenced to life imprisonment having the vote, having those civil and human rights that other people did. This issue will come up again when we debate later in this Committee the issue of marriage of whole life-tariff prisoners. One other example of course is that Madam Merkel disregarded the Dublin convention in 2015, allowing over a million Syrian refugees to come to the country in breach of Germany’s obligations under various treaties.
In conclusion, this Bill is of course imperfect; it is flawed. I may not even have voted for it when I was still in the other place, but that is another issue. Some noble Lords clearly want to hobble the Bill, make it inoperable and kill it with multiple amendments. We know that; it is only honest to say so. But the amendment moved by my noble friend Lord Hailsham moves the dial far too much towards judicial activism and away from parliamentary sovereignty. For that reason, I must ask noble Lords to resist it.
Finally, to those potentially assuming a ministerial responsibility later this year on the other side of this Chamber, I say, “Be careful what you wish for”. If Labour is elected to government, it will have to put into place an election manifesto; the people will have given it the faith and trust so to do. To undermine that by subjugating parliamentary sovereignty to international treaty obligations, which may change against the interests of a Labour Government and the British people, is a hostage to fortune. Undermining parliamentary sovereignty may seem a prudent thing to do in Opposition, but the burdens of higher office mean that, one day, the boot may well be on the other foot. For those reasons, I very strongly support the amendment in the name of my noble friend Lady Lawlor and resist the amendments moved by my noble friend Lord Hailsham and the noble Baroness, Lady Chakrabarti.
Lord Dodds of Duncairn (DUP)
My Lords, Amendment 80, in my name and that of my noble friend Lord Morrow, relates to the application of the Bill across all parts of the United Kingdom. I want to explore with the Government—I would be interested in hearing their response—whether, despite Clause 8(1) stating that the Bill
“extends to England and Wales, Scotland and Northern Ireland”,
that is in fact the case, given the effects of Section 7A of the European Union (Withdrawal) Act 2018. That is of course the conduit by which EU law flows into Northern Ireland under the Northern Ireland protocol, also known as the Windsor Framework.
Whatever one’s view of the merits of the Bill, it appears to apply across the UK with equal effect. That is according to the Bill and of course it should be the case: immigration law has always applied with equal effect right across the United Kingdom; otherwise, the danger is that one part of the country will be operating different rules, with all the attendant consequential problems that would arise. So what is the position and what effect would the Bill have on Northern Ireland?
As we know, under Article 2 of the Northern Ireland protocol, which remains fully in place today despite the recent Command Paper which the Government have published, there is no diminution of rights for Northern Ireland compared with what previously existed under the Belfast agreement. The Government argue that the issues of immigration are not captured under that provision, and that therefore the Bill can proceed and Article 2 does not have any effect. However, in my view there is no doubt that Section 7A of the European Union (Withdrawal) Act 2018 allows for the continuing application to Northern Ireland, uniquely within the United Kingdom, of the Charter of Fundamental Rights and EU general principles.
I refer the Committee and the Minister to the recent High Court case in Belfast and its judgment in the Aman Angesom case, on 18 October 2023. This was a case of judicial review and at paragraph 94 of that judgment it was stated:
“The combined effect of section 7A of the European Union (Withdrawal) Act 2018 … and Article 4 of the Protocol limits the effects of section 5(4) and (5) of the EUWA 2018 and Schedule 1, para 3 of the same Act which restrict the use to which the Charter of Fundamental Rights and EU General Principles may be relied on after the UK’s exit”
from the European Union. It continued:
“Thus, the Charter of Fundamental Rights remains enforceable in Northern Ireland and falls within the ambit of Article 2(1) of the protocol”.
Within the Charter of Fundamental Rights of the European Union is Article 18, which has rights of asylum. Is it not the case that despite the Bill stating in Clause 8(1) that it extends to Northern Ireland, because we do not have a notwithstanding clause in relation to Section 7A of the 2018 Act, Northern Ireland is in fact not now in the same position—or would not be in the same position—as the rest of the United Kingdom, were this Bill to proceed unamended? If that is so, the Government need to be totally transparent and open about it. We have had examples recently of legislation coming to this House, including a recent debate on a matter to do with trade, in which amendments were tabled to illustrate the fact that despite that legislation being silent on the matter, major provisions of that Bill could not apply to Northern Ireland because of the effects of the protocol/Windsor Framework.
Baroness Meyer (Con)
My Lords, I will speak against Amendments 9, 10 and possibly 13. I declare that I am a member of the Joint Committee on Human Rights but, personally, I did not agree to the full report. Like the noble Baroness, Jones of Moulsecoomb, who is not in her seat, I have to say that I am not a lawyer, but I am a woman and therefore I am a pragmatic person.
The one thing about this Bill is that everybody criticises it, but nobody gives us an answer on how to deal with what is a huge problem. As a pragmatic person from the outside, I see it as a totally political discussion rather than people getting together to try to find a solution. The problem is that there is no silver bullet solution to regaining control of our borders, dealing with immigration and how to deal with all those people dying coming into the United Kingdom.
As I see it, the Strasbourg court states that members have an obligation to comply with interim measures, but it does not say anywhere that they are compelled to do so. Therefore, the argument that Parliament will undermine the rule of law by authorising Ministers to decide whether to comply with Rule 39 measures, is incorrect.
The other argument advanced by people opposing the Bill is that our reputation across the world will be damaged, but this is not a proven belief. It is unsubstantiated. The reality is that the whole international migration system has got totally out of control. Our Government are taking decisive actions to protect our country’s border, strengthen our national security, stop the appalling trade and, ultimately, avoid many unnecessary deaths.
Is not the primary duty of any Government to keep their citizens safe and the country secure? British citizens generally welcome migrants and value the importance of migration, but they are becoming more and more reticent at the idea of footing the bill, seeing the pressures on our NHS, schools and housing. This Bill is not anti-immigration but a pragmatic response to the urgent crisis. One cannot compare previous waves of immigration, such as those of the Jews and others who were forced to leave their country and were limited in their numbers. Faced with the scale and cost of the current migration into the United Kingdom, doing nothing is not an answer.
I realise that this Bill is not perfect, but it is a first step. If we do nothing, there will be political consequences, as the noble Baroness pointed out earlier, and we can see that in the rise of populism and anti-immigration movements in the rest of Europe. This is why I object to these amendments; they will strip away parliamentary authority to decide not to comply with the Rule 39 interim measures and therefore go against the whole idea of this Bill.
Lord Anderson of Ipswich (CB)
I am prompted to intervene by Amendment 80, so ably introduced by the noble Lord, Lord Dodds. Although I do not support that amendment, I think that he has raised a very significant issue. He referred to Article 2 of the Northern Ireland protocol, as amended by the Windsor Framework, and to the principle of non-diminution of rights. The Northern Ireland Human Rights Commission, as he knows, has a statutory duty under the Northern Ireland Act 1998 to monitor the implementation of Article 2 to ensure that there is no diminution of rights.
As the Northern Ireland Human Rights Commission explains in its advice on the Rwanda Bill, referred to in the Constitution Committee’s report last week—and I declare an interest as a member of that committee—the rights not to be diminished include the EU procedures directive. That requires, among other things, by Article 27, that a third country can be considered safe only where the authorities are satisfied that key human rights principles will be respected. The procedures directive cannot be satisfied by a deeming provision; that is not how EU law works. It requires decision-makers to be untrammelled by legal fictions, and it requires convincing evidence that third countries are safe in practice. So there would appear to be a clear mismatch between what the Bill says and what the procedures directive preserved in Northern Ireland says.
My understanding is—although I submit to noble Lords from Northern Ireland on the detail of this—that this by no means a theoretical question. Official statistics do not provide an accurate picture of the extent of human trafficking on the island of Ireland, but the Northern Ireland refugee statistics for December 2023 record that there were 3,220 people receiving asylum support in Northern Ireland, and they were eligible for that because they were destitute on arrival.
To echo the call from the noble Lord, Lord Dodds, for transparency and openness in this matter, my questions to the Minister are as follows. Does he agree with the Northern Ireland Human Rights Commission report, and in particular its conclusion that Clauses 1 and 2 of the Bill are contrary to the principle of non-diminution of rights under Article 2 of the Northern Ireland protocol? When he responds to the noble Lord, Lord Dodds, on his Amendment 80, would he also explain how, consistently with the Northern Ireland protocol, this Bill can apply in Northern Ireland at all?
Lord Murray of Blidworth (Con)
My Lords, I shall speak to Amendments 9 and 13. I obviously have the greatest respect for my noble friend Lord Hailsham and the noble Baroness, Lady Chakrabarti, but let us look at the two subsections whose removal they called for at the beginning of the debate. Clause 1(4) says:
“It is recognised that … the Parliament of the United Kingdom is sovereign, and … the validity of an Act is unaffected by international law”,
and Clause 1(6) defines what the term “international law” means. There is nothing at all controversial in either of these clauses: indeed, Clause 1(4) is a classic statement of the legal position. I am afraid that I find it frankly bizarre for speeches to be made in this Committee expressing outrage that the Government have had the temerity to put them into Clause 1, as though they were dark secrets to be discussed only among lawyers in quiet corners of the Inns of Court. It is simply a frank statement and it has every place in Clause 1, where it will help the courts interpret the provisions of the Bill. Indeed, one can see that the interpretation provision at the end of the Bill refers back to Clause 1(6). For those reasons, I oppose the amendments proposed by my noble friend.
Baroness Bennett of Manor Castle (GP)
My Lords, acutely aware of the hour, I will be extremely brief and restrain myself. I offer Green support for Amendments 9, 10 and 13 and I will simply say about Amendment 9—I declare my position as co-chair of the All-Party Parliamentary Group on Hong Kong—that I invite noble Lords who are opposing these amendments to turn this around and say how we would feel when the Chinese Government say, “Well, we’re just going to ignore the Sino-British joint declaration”—as indeed the Chinese Government do and we rightly condemn that behaviour, and I hope will continue to do so.
On the second point, I commend the noble Lord, Lord German, for trying to fix the British constitution. It is a brave attempt, particularly at this hour of the evening. I was reminded, looking at his amendment, of the conclusion of the historian Peter Hennessy, the noble Lord, Lord Hennessy, that we suffer from the fact that our constitution—uncodified or unwritten, whichever you prefer—relies on people being “good chaps” who will just follow along and do the right thing. We are well past the point, it is very clear, when we can rely on the Government being good chaps.
Lord Coaker (Lab)
My Lords, I shall make a couple of brief comments. The noble Viscount, Lord Hailsham, in his Amendments 9 and 13, makes a hugely important point. I say to the noble Lord, Lord Jackson, that I would be quite happy, if I were to be able to stand again, or indeed vote at the next general election, for my party to stand on the principle that it will abide by international law. That is something by which the Labour Party would be proud to stand. It is clear, with respect to his own party, that there is a division, frankly, between the position that the noble Viscount, Lord Hailsham, holds, where he espoused what was the traditional and in my view the well-respected view of the Conservative Party, and the view of the Conservative Front Bench, which is to the right of the noble Viscount but to the left of the noble Lord, Lord Jackson. I am afraid that the noble and learned Lord, Lord Stewart, is getting it not just from His Majesty’s Opposition but from the right and left of the Tory party. We will be interested to see how he responds to that.
On the issue that
“the validity of an Act is unaffected by international law”,
the noble Lord, Lord Murray, mentioned Clause 1(6), which details the international law that can be ignored or is irrelevant under the Act. It is quite astonishing. If noble Lords have not read Clause 1(6), or have not got it in front of them, it is worth looking at. Virtually every international treaty or convention which this country has been a proud member of, often for decades, is simply to be ignored or considered irrelevant to the validity of the Act. These comprise
“the Human Rights Convention, the Refugee Convention, the International Covenant on Civil and Political Rights of 1966, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, the Council of Europe Convention on Action against Trafficking in Human Beings done at Warsaw on 16 May 2005, customary international law, and any other international law, or convention or rule of international law, whatsoever, including any order, judgment, decision or measure of the European Court of Human Rights”.
Lord Jackson of Peterborough (Con)
I may be pre-empting the noble Lord—incidentally, I very much hope that if there is a Labour Government he will be a senior figure in it, because his service in the other place was exemplary—but what is his answer to the material change in geopolitical circumstances since the time of the 1951 convention and the European Court of Human Rights? There is an incompatibility between the weapons available in current domestic law and the stresses from international treaty obligations. What will his party do to square the circle?
Lord Coaker (Lab)
We will not take unilateral action but seek to work within the international framework to bring about any refinement that needs to be made, as many other countries across the world do in the light of their circumstances. I ask the noble Lord and the noble Baroness, Lady Lawlor, a question that the noble Baroness, Lady Bennett, just posed: why can we take action in the Red Sea? Because we are conforming with international law. Why can we say what we are saying to China about its attitude to Taiwan and its appalling attitude to Hong Kong? Because of international law. Why can we support Ukraine in the way we are? Because of our adherence to international law. In the past, as he will know, serious questions have been raised when people have been said to have acted in a way that was inconsistent with international law. That is its importance.
Anarchy will arise across the world if everyone simply abandons that and pursues what they consider to be their own interests. That way lies disaster. All I am saying, in a small but very important way, is that we do not believe we should be able simply to ignore international law in this Rwanda Bill. That is not the right approach for His Majesty’s Government.
Baroness Lawlor (Con)
I thank the noble Lord for letting me clarify. I specifically mentioned international diplomatic, military and trade treaties, which are in the interests of a country and its people. The contrast was with international treaties made some years ago for different circumstances. We may well be able to make international treaties to deal with global problems in future, but the international treaties to which the noble Lord referred govern maritime trade, security alliances and other matters, and they are direct and immediate in their impact on the people of this country. My point is that we must defend the interests of people, Parliament and democracy, because we cannot have laws that are not grounded in trust.
Lord Coaker (Lab)
That is an interesting point, but you cannot pick and choose. You cannot simply decide that you do not agree with something at a particular time and abandon it. If we suddenly decided, because a new Government with a particular political ideology had been elected, to abandon a treaty with X and another with Y, we would have no case with respect to numerous countries around the world. As we have heard from the noble Lord, Lord Patten, the new Chinese Government simply abandoned everything that they negotiated on the withdrawal from Hong Kong. That is a new circumstance, but it is not right in any sense of the word that they unilaterally abandoned the international treaty.
That is the fundamental point at the heart of what the noble Viscount, Lord Hailsham, is saying. The proud tradition of this country—not just his party—is to adhere to international agreements, to be able to walk into a room full of diplomats and for them to know that, when we say something, we mean it and it will be adhered to. Sometimes it is on the basis of trust built up over decades, and we play with it at our peril.
Lord Murray of Blidworth (Con)
A moment ago we heard the noble Lord read out the list of the international conventions set out in Clause 1(6), as though in some way it would disapply them domestically. That is clearly not the effect of the drafting. All Clause 1(6) does is define what the term “international law” means in other places in this statute. It is just a definition clause, so I am unsure why the noble Lord felt obliged to read it out as though it was of great importance, on the basis that were resiling from these conventions. As was clear from my noble friend’s speech, we are not in any way resiling from these obligations.
Lord Coaker (Lab)
If Clause 1(6) is completely purposeless and meaningless, it is worth the noble Lord asking the Minister why the Government have included it in the Bill. It obviously has to mean something if it is included in the Bill. All I am doing is reading from the Bill, which says that
“the validity of an Act is unaffected by international law”.
It then goes on to define “international law”. I am simply pointing out that there is a big list of international conventions and legal treaties that we have been members of for decades, in many cases, which we are now saying unilaterally do not apply with respect to this Bill. That is a very significant constitutional change and something to be regretted.
That is why I welcome the fact that the noble Viscount, Lord Hailsham, has tabled Amendments 9 and 13. I say to the noble Lord, Lord Jackson—I thank him for his nice remarks about me—that one of the ways the Labour Party can win at the next general election is to say that we are proud to stand up for the international law to which this country has traditionally adhered, and propounded across the world. That is why we take action in many areas of the world to reinforce those rules. The international rules-based order is something of which we can be proud. The Labour Party will stand—or indeed fall—on the basis of being proud to stand for that.
Baroness Meyer (Con)
That was devised in the 1950s when the circumstances were quite different and were more important than taking care of the citizens of this country.
Lord Coaker (Lab)
Of course taking care of the citizens of this country is necessary and important. There is no debate in the Chamber about that. The noble Viscount, Lord Hailsham, started the debate by saying that all of us want to stop the boats and believe that illegal migration is harmful to the country. I say, and I believe my party will say, that the levels of legal migration are too high, and something needs to be done in a controlled and managed way. The debate is about how you do that and what the correct policy response is. That is where the division is. The division is not about whether we need to stop the boats; of course we do. We need to do something about the levels of migration; but to do it in a way that undermines the standing of this country in the world is not the way.
Baroness Meyer (Con)
The noble Lord says that the Labour Party agrees that we need to stop the boats and reduce illegal and legal migration because it is unsustainable. But who has come up with a better solution? Those are just steps towards a solution.
Lord Coaker (Lab)
We have. The noble Baroness may disagree with us, but we have put forward a number of proposals involving tougher action to tackle criminal gangs, including more co-operation with our European partners—particularly France—and tackling the problem at source. That would be done through the re-establishment of the aid budget, which the noble Baroness’s party cut; however, I do not want to get party political about this. Those are the sorts of things we have suggested. The noble Lord shakes his head, but that does not mean that we do not have a plan—simply that he and the noble Baroness disagree with it. That is the nature of political debate. In supporting the amendments from the noble Viscount, Lord Hailsham, we are saying that undermining international law is not the way to tackle a problem that we all agree needs to be sorted.
Lord Stewart of Dirleton (Con)
My Lords, I am grateful to all noble Lords who have participated in this debate, which has been a far-ranging one given the nature of the amendments. Clause 1(4)(a) and (b) states that it is recognised
“that the Parliament of the United Kingdom is sovereign”
and that
“the validity of an Act is unaffected by international law”.
That is a statement in conventional terms of constitutional reality. My noble friend Lord Murray of Blidworth expressed it with his characteristic clarity and concision. We have heard nothing in this debate—not from my noble friend Lord Hailsham, not from the noble Baroness, Lady Chakrabarti, not from the noble Lord, Lord German, on the Liberal Democrat Benches—to disturb that reality.
I will take matters out of the order in which they were presented, to deal with them conveniently. The noble Lord, Lord Coaker, replying a moment ago from the Opposition Front Bench, asked for a word about the status of the instruments enumerated in Clause 1(6). Following on from what I said, it is not the case that the Bill jettisons those commitments. It says—as my noble friend Lord Murray of Blidworth said—that this provision exemplifies what is meant by international law. When it lists these provisions, it does so for the purpose of stating what is, again, the constitutional reality—that the validity of an Act is unaffected by international law. That includes those provisions. That is and always has been the case. I appreciate that not all Members of the Committee think that it should be the case. We have heard cogent submissions from Members of the Committee to that effect. However, the point is that it is the case until such time as Parliament decides otherwise.
Baroness Chakrabarti (Lab)
I shall be brief. Why did the Minister put that on the face of the Bill, when all the lawyers in the Committee agree that, as a matter of domestic law, unless a treaty is incorporated directly, it is not justiciable in the UK courts? None the less, as a matter of international law, our word is binding. My noble friend Lord Coaker made it very clear why it is so important in this dangerous world that our word should be binding. If this is just a statement of domestic law, why was there the need to put it in the Bill? Is it because the Minister wants to show a bit of ankle to his friends who are pushing even further to the right with their amendment? What on earth are the Government trying to signal with this kind of statement in primary legislation?
Lord Stewart of Dirleton (Con)
There are a number of points that I could address there. As for the matter of me as a Minister showing ankle—the noble Baroness of course speaks metaphorically—I found it as difficult to comprehend as I found the references to a “Braverman wing” of the Conservative Party.
I go back to the submission of the noble Baroness earlier on. International law, as she is well aware, operates on the international plane, not on the domestic plane. There could be no greater restraint on state action than a treaty, and that is what the Government propose to deliver. She gave a submission earlier about the implications for Ministers and indeed for civil servants. To reassure her, I say that this does not bear on the actions of civil servants fulfilling their duties to assist the Government.
The noble Lord, Lord Hannay of Chiswick, referred to Section 19(1)(b) of the Human Rights Act. He was, I think, disparaging about the use of that provision, as opposed to Section 19(1)(a), which more familiarly is a statement given by the promoter of a Bill that, in his or her view, it is lawful. Of course, there is nothing unusual about the use of Section 19(1)(b) in these circumstances; it is entirely appropriate, which is why it appears in the Bill. It was used, for example, by the last Labour Government in, I think, the Communications Act 2003—I might be corrected on that, but it has been used by Labour when in government in those circumstances.
Lord Falconer of Thoroton (Lab)
Can the Minister say how many times it has been used in total?
Lord Stewart of Dirleton (Con)
The noble and learned Lord will not be surprised to hear that I do not have the figure to hand, but I imagine it is readily available from Westlaw.
The noble Lord, Lord Hannay, said, “Answer yes or no, does our word continue to be our bond?”, or words to that effect. It continues to be our bond within the circumstances of the incontrovertible constitutional position set out in Clause 1(4)(b). The United Kingdom and this Government take their obligations—
Lord Hannay of Chiswick (CB)
I wonder whether I can encourage the Minister to try that out on some foreigner with whose country we are signing a binding agreement, by telling him, “We will shake hands on that but, by the way, we can do what we like afterwards”. He ought to try it; he would find it quite an interesting experience.
Lord Stewart of Dirleton (Con)
That would be a treaty commitment of the sort that is the strongest bond that two countries can enter into, as we have been reminding the Committee. The conventional statement of constitutional reality—as I described it and as my noble friend Lord Jackson of Peterborough described it in his submission, citing AV Dicey—was little more than a reassertion of the position that applies in law and that always has.
The Bill, as currently worded, enables Parliament to come to the same conclusion and provides a statutory finding that decision-makers, including courts or tribunals, will conclusively treat Rwanda as a safe country. Amendments 9 and 13, in the name of my noble friend Lord Hailsham, seek to remove the provision that recognises the sovereignty of Parliament and the provision that confirms that the validity of an Act is unaffected by a domestic court’s or a tribunal’s view that there is a conflict with international law. That is at the core of the Bill, and many of its other provisions are designed to ensure that Parliament’s conclusion on the safety of Rwanda is accepted by the domestic court. The treaty, alongside the evidence of changes in Rwanda since summer 2022, to which we referred, will enable Parliament to conclude that Rwanda is safe, and the new Bill provides Parliament with the opportunity so to do.
I note that Amendment 10 in the name of the noble Lord, Lord German, is a probing amendment that makes it clear that the primary responsibility of the courts is to uphold the constitution of the United Kingdom, including the constitution’s fundamental commitment to the rule of law. That amendment again sets out the status quo. But the rule of law, as a concept, is difficult to tie down in a series of short statements, and I fear that the noble Lord’s amendment would be productive of debate in the abstract, producing perhaps more heat than light.
I again assure the Committee that the United Kingdom continues to be bound by and respects its legal and international obligations. The Bill is predicated on both Rwanda’s and the United Kingdom’s compliance with international law in the form of the treaty, which itself reflects the international legal obligations of the United Kingdom and Rwanda. It does not legislate away our international obligations. The purpose of the Bill is to say that, on the basis of the treaty and the evidence before it, Parliament believes those obligations to have been met—not that we do not care whether they have been. I repeat that the Government take their international obligations, including those under the ECHR, very seriously. There is nothing in the Bill that requires the United Kingdom to breach its international obligations.
As noble Lords will know, states take different approaches to their different international law obligations. Some states treat international law as automatically forming part of their domestic law, but the United Kingdom and other countries with a similar background, including many Commonwealth countries, with which we share so much, have a dualist system in which a treaty ratified by the Government does not alter the laws of the state unless and until it is incorporated into national law by domestic legislation.
On Amendment 32, tabled by my noble friend Lady Lawlor, this legislation provides that a court may grant interim relief, which prevents removal to Rwanda, only where it is satisfied that there is a real, imminent and foreseeable risk of serious and irreversible harm. As my noble friend put it in her submission, the Bill needs tightening. We do not accept the amendment proposed by her and my noble friend Lord Jackson of Peterborough. None the less, I invite the Committee to consider that in the course of the discussion and the interventions which were made on my noble friends, matters of interest and importance emerged.
We do hold that law has to command public support and that it should emerge from public consideration, whether through our common law, which does no more than evolve to meet certain essential propositions that bargains should be sustained and that harm should be punished and compensated for, or whether it emerges from a representative Parliament. None the less, the law dare not risk moving too far from the confidence of the public. The risk to the maintenance of institutions and public peace of judicial activism and overreach moving too far away from what the public is prepared to appreciate is, I think, the point that my noble friends took.
My noble friend Lady Meyer added to the discussion by stating that while the Bill was, in her words, not perfect—that has been something of a leitmotif running through the submissions which we have heard today, and indeed at Second Reading—it is none the less not holding itself out as a silver bullet. It is not perfect because—to quote my noble friend Lord Hannan of Kingsclere—in a dull and sublunary world, very few things are capable of perfection. However, as my noble friend Lady Meyer pointed out, it is rather a pragmatic response to an urgent crisis. I commend my noble friends for their thoughtful analysis of the problems facing other countries grappling with the impact of mass migration, and the risks to their own domestic systems which have been identified as flowing therefrom.
I have said to the Committee and will say again that, as I think we heard earlier from my noble friend Lord Sharpe of Epsom, other countries are watching keenly the experience of this country in moving legislation of this sort. It is clear that this is a huge problem. I readily accept everything that the noble Lord, Lord Coaker, said from the Opposition Front Bench as the last submission to this group about the need to work with our partners abroad to devote resources to smashing the pernicious grip of criminal gangs on people’s lives. However, as I said at Second Reading, we are doing all of that now and there is no simple answer to the problem, and that is why the Bill is being advanced.
I will revert to Amendment 32. As I said, the legislation provides that a court may grant interim relief preventing removal to Rwanda only where it is satisfied that there is a real, imminent and foreseeable risk of serious and irreversible harm. That is the same threshold which can lead to a temporary suspension of the duty to remove under the Illegal Migration Act. These measures are necessary to ensure compatibility with the European Convention on Human Rights and to ensure that the grounds by which people can challenge removal are appropriately narrow. This amendment also undermines the safeguards that we see as necessary to ensure that the Bill and the Illegal Migration Act are compatible with the United Kingdom’s international obligations. The Illegal Migration Act and the Bill include provision for a person subject to removal to a safe third country to make a limited class of suspensive claim on the grounds that they would face a real risk of serious and irreversible harm were they to be removed.
The threshold for serious and irreversible harm is a high one. The harm in question must be both imminent and permanent. This reflects the test applied by the European Court of Human Rights when considering whether to indicate an interim measure under Rule 39, meaning that the United Kingdom courts will have to consider these questions before they are progressed to Strasbourg, further undermining the case for Strasbourg to intervene.
I turn to Amendment 80 tabled by noble Lord, Lord Dodds of Duncairn. The Northern Ireland position was also adverted to in the debate on group 1 by the noble Baroness, Lady Ritchie of Downpatrick. She is not in her place, but I apply my remarks across the House. The Bill will apply in full in Northern Ireland, as it will across the whole United Kingdom. Nothing in the Windsor Framework or the Belfast/Good Friday agreement changes that. I seek to provide reassurance to the Committee in relation to the constitutionally vital point raised by the noble Lord, Lord Dodds of Duncairn.
The Government’s position is clear that the Bill’s provisions relate to administrative matters of asylum procedure and as such do not engage Article 2. This is because the Bill does not relate to the United Kingdom’s departure from the European Union, rights given effect in domestic law in Northern Ireland and underpinned by EU law before the end of the transition period, or the specific rights contained in the Belfast/Good Friday agreement which concern Northern Ireland’s particular circumstances. Any suggestion that the relevant chapter of the Belfast/Good Friday agreement should impinge on the Bill implies that the rights in the agreement are far more expansive than is the case. The Government will continue to defend the application of the Bill on a United Kingdom-wide basis.
I offer further reassurance to the noble Lord, Lord Dodds, and his colleagues on those Benches, with the letter written by my learned colleague in the other place the Minister for Immigration, Michael Tomlinson KC, to Sir Jeffrey Donaldson of the DUP dated 19 January 2024. He said that as he set out in debate and at Second Reading on 12 December, the Bill applies across the entire United Kingdom, and
“neither the Withdrawal Agreement nor the Windsor Framework do anything to cut across that position. I do recognise, however, the concerns raised by your colleagues in Parliament as to whether the Bill may have specific interactions in that regard”.
Nothing in the Bill affects the required incorporation into domestic law of the ECHR, as required in the agreement, or the ability of domestic courts to consider issues of compatibility. Nor does the Bill alter the capacity of the domestic courts to overrule incompatible legislation of the Northern Ireland Assembly with convention rights. The noble Lord referred the Committee’s attention to the Charter of Fundamental Rights. The Government have underlined consistently that the Charter of Fundamental Rights does not form part of domestic law anywhere in the UK, including Northern Ireland.
Lord Anderson of Ipswich (CB)
I want to be clear. I referred to the provision of the procedures directive which requires a case-by-case decision on whether a third country is safe. I contrasted that with Clause 2(1) of the Bill, which says that:
“Every decision-maker must conclusively treat the Republic of Rwanda as a safe country”.
Is the Minister saying that there is no difference between those provisions, or is he accepting there has been a diminution of rights under the procedures directive and saying that it does not matter? If that is case, can he explain why it does not matter?
Lord Stewart of Dirleton (Con)
My Lords, I do not wish to enter into a matter that lies outwith my department and sphere of responsibility at this hour. With the noble Lord’s permission, we shall write.
Having offered those reassurances to the unionist Benches, I offer this conclusion. We have devised a solution that is innovative and within the framework of international law. It is a long-term solution that addresses the concerns set out in the Supreme Court judgment and ensures that this policy can go ahead, paving the way, as I said earlier, for other countries to look at similar solutions. I invite my noble friend to withdraw his amendment.
Viscount Hailsham (Con)
My Lords, I have just two points. First, I am extremely grateful for the support I have received from the noble Lord, Lord Coaker, but most especially from the noble Baroness, Lady Chakrabarti. We share many concerns about this Bill.
Secondly, I have said enough for tonight, and I beg leave to withdraw my amendment.