Safety of Rwanda (Asylum and Immigration) Bill

Report stage
Wednesday 6th March 2024 Lords Chamber

Report (2nd Day)

Relevant documents: 2nd Report from the Joint Committee on Human Rights, 3rd Report from the Constitution Committee

15:49

Clause 4: Decisions based on particular individual circumstances

Amendment 33

Moved by

[Baroness Chakrabarti]

33: Leave out Clause 4 and insert the following new Clause—
“Decisions in individual claims(1) Section 2 does not prevent—(a) the Secretary of State or an immigration officer from deciding (under any applicable provision of, or made under, the Immigration Acts) whether the Republic of Rwanda is a safe country for the person in question or for a group of persons to which that person belongs; or(b) a court or tribunal considering a review of, or an appeal against, a relevant decision to the extent that the review or appeal is brought on the grounds that the Republic of Rwanda is not a safe country for the person in question or for a group of persons to which that person belongs; or(c) a decision-maker considering whether there is a real risk that the Republic of Rwanda will remove or send the person in question to another State in contravention of any of its international obligations.(2) The court or tribunal may grant an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of the person to the Republic of Rwanda. (3) Section 54 of the Illegal Migration Act 2023 is disapplied for the purposes of this Act.(4) In this section—“interim remedy” means any interim remedy or relief however described (including, in particular, an interim injunction or interdict);“relevant decision” means a decision taken by the Secretary of State or an immigration officer (under any applicable provision of, or made under, the Immigration Acts) that the Republic of Rwanda is a safe country for the person in question.”Member’s explanatory statement
This amendment restores the ability of the Secretary of State, immigration officers, courts, and tribunals, to consider whether the Republic of Rwanda is a safe country and jurisdiction of domestic courts and tribunals to grant interim relief.

[Baroness Chakrabarti (Lab)]

My Lords, on Monday overwhelming majorities of your Lordships voted to amend this Bill by adding compliance with the law to the purpose of deterrence in Clause 1, by requiring a statement from the treaty monitoring committee, before and for as long as Rwanda may be presumed safe, and by allowing such presumption to be displaced by credible evidence to the contrary. It is the last of these that provided the most legal, as opposed to political, protection. Yet even that would become illusory if the dangerous interference with His Majesty’s judges’ jurisdiction in the current Clause 4 passes unamended, so Amendment 33 would restore to decision-makers, and crucially our courts, the ability to consider the safety of Rwanda for people and groups to which they belong.

I draw your Lordships’ attention to today’s thunderer, expressing the personal reflections of the chair of the Joint Committee on Human Rights on her recent visit to Kigali. Decision-makers and courts would once more be able to consider any real risk of refoulement contrary to international law. Vitally, this amendment also restores our age-old common-law tradition of His Majesty’s courts having discretion to grant interim relief while a case is considered—to protect a claimant, in this case, from removal in the meantime. We have had rule-of-law appetisers; this is now the main course, but it must be fast food to prevent filibuster and to allow more votes. That was two minutes; I beg to move.

[Viscount Hailsham (Con)]

My Lords, perhaps within two minutes I will complete my observations to support the amendment moved by the noble Baroness, Lady Chakrabarti. To anticipate what my noble friend the Minister is going to say, I acknowledge that there is force in his prospective argument, which I suspect will be that if we allow these amendments we facilitate a number of unmeritorious applications to the courts, and that will stand in the way of the Bill being effective. There is force in that argument, but I put before your Lordships three considerations that point the other way.

First, the judiciary can be more robust in the way it deals with unmeritorious applications. Furthermore, although I am not an expert in this field at all—I have not practised in immigration law for a long time—a more effective filter could be put in place to weed out the unmeritorious. That is the first point. The second is really the point of principle: I regard it as very dangerous indeed to exclude individuals who happen to be within the jurisdiction from having recourse to the courts for protection. I regard that as a very dangerous proposition, and we should accede to it with the greatest caution. That takes me to my last point, which is essentially a pragmatic one. Those of your Lordships who share my doubts, especially on the matter of principle, should ask themselves whether the Bill is likely to achieve its policy objective. If it is not, we will be doing things that are very bad in principle in support of a policy that will achieve nothing.

My own judgment—I concede that it is a matter of judgment—is that individuals will not be deterred from crossing the channel in small boats by the slight prospect of being relocated to Rwanda. If that is right, we will be doing something that is in principle profoundly wrong in support of a policy that is going nowhere. It is for that combination of reasons that I shall support the noble Baroness. I have spoken for three minutes.

[Lord Inglewood (Non-Afl)]

My Lords, I would like to ask the Minister one question in the context of the provisions in Clause 4. Is it or is it not the Government’s policy that they will look at each individual case, regardless of any other evidence, even if it is only to decide that there are no merits in that particular person’s case?

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will speak only once today, as I did on Monday. The Greens will vote for all the amendments that are called. Some Members of your Lordships’ House quoted the book Nineteen Eighty-Four on Monday, and I have a favourite quote as well:

“Freedom is the freedom to say that two plus two make four”.


It is the freedom to speak truth, even when the ruling party is declaring otherwise.

That is what we are debating today. We are debating whether this authoritarian Government can declare that the objective truth of facts decided by the courts can be overruled. If we allow it, it is another big step towards a dictatorship—intentional or not. I know that the majority of people in your Lordships’ House know that the Government are wrong. I also know that many still cling to the belief that the House of Lords should not vote to stop the Government passing the most draconian of laws.

What are we going to do once we have voted on our amendments, and tried to do our job of improving the Bill, when the Government then ignore us? Will we do nothing again? We did nothing last year when a Minister overruled a vote in this House and gave the police draconian powers via a ministerial decree. It was the first time a Minister had ever used a statutory instrument to overturn a vote in this House, but the Labour Party failed to back my fatal amendment. I look forward to being told that that piece of legislation is going to be repealed as well.

We are paid more than £300 per day to come here and talk and vote, but what is the point of all our hard work if the Government ignore us? Either your Lordships’ House starts to act in defence of our liberal democracy and against the extremists at the heart of government, or we abolish this place and create an elected second Chamber with some backbone. I look forward to more defeats for the Government in these votes.

[Lord Cashman (Lab)]

My Lords, I support this amendment because it encapsulates the principle introduced by the noble and learned Lord, Lord Etherton, and me in amendments on Monday, which we subsequently withdrew and did not move. My noble friend Lady Chakrabarti referred to an article by Joanna Cherry in the Times. I want to quote from it, because on Monday we on this side of the House were assured by others on the opposite side that everything was well and rosy and good in the garden of Rwanda in relation to minorities, particularly LGBT minorities:

“Last week I led a delegation of the Joint Committee on Human Rights to Kigali, the capital of Rwanda. The committee will report on our visit … but in my personal opinion the UK government’s insistence that Rwanda is now a safe country for asylum seekers is a legal fiction … On LGBT rights, I think Rwanda is where Britain was 50 years ago … According to NGOs we met, LGBT people face stigmatisation and discrimination in what is quite a conservative society”.


That chimes absolutely with the evidence I presented to the House from NGO LGBT activists in Rwanda.

[Lord German (LD)]

My Lords, we on these Benches agree that decision-makers and our domestic courts and tribunals are able to properly consider whether Rwanda is safe for an individual or a group of persons. This amendment would restore the proper jurisdiction of our courts and enable them to grant interim relief to claimants, preventing their removal to Rwanda until their cases had been properly considered. Where the considerations involve risk to life or inhuman or degrading treatment, it is critical that cases can be fully and properly considered before an individual is removed. We also support the ability of decision-makers to consider the risks to a group as well as to an individual, and refer, of course, to the matters raised on day 1 of Report.

16:00

The Government respond by saying that their first responders will be able to spot people who are, for example, subjected to modern slavery. However, anyone who has worked in that field knows that it is not just a simple, very short interview that enables people to detect whether someone is subjected to modern slavery. There is a screening process, but how well equipped is that screening process, such that first responders are able to determine that someone is a potential victim? That remains an important question, and this lacuna should be filled by this amendment being supported.

[Lord Lilley (Con)]

My Lords, can I begin by setting the record straight? On Monday, I implied that no noble Lord had mentioned the precedent set in 2004 by the Blair Government in creating an unrebuttable presumption that a list of countries is safe. I am grateful to the noble Lord, Lord Anderson, who is in his place, for alerting me to the fact that he and the Constitution Committee did refer to this precedent. I apologise to him for not having mentioned that. Both he and the committee excused the precedent because it was a requirement of European law, and it was replaced in 2022, so it would appear that removing such a bad precedent was a Brexit dividend, although I am not conscious that anyone has mentioned that.

The most reverend Primate rebuked me for citing this precedent on the grounds that

“two wrongs do not make a right”.—[Official Report, 4/3/24; col. 1336.]

Of course, neither do two rights make a wrong. I do not recall him, any right reverend Prelate or any lawyer, over the many years that that Act was in place, ever decrying it in the way they decry this proposal. What is the difference? The first is that, in those days, the list was all of white countries, and now we are dealing with a black country. I warn the most reverend Primate that he had better check his white privilege and his colonial assumptions, or he might find himself in trouble with some of his bishops.

The second difference is that this changes a court decision, whereas the 2004 one did not. I remind the House of something that I may, of course, not have heard other noble Lords mention: the advice of the noble and learned Lord, Lord Neuberger, who said that

“if a judge makes a policy-based decision with which the legislature is not happy, the remedy in a system with parliamentary supremacy, such as we enjoy in the UK, lies with Parliament. Any decision made by a court can always be reversed by the legislature”.

That is what the Bill does, and I hope we will pass it.

[Lord Murray of Blidworth (Con)]

I rise in response to a point raised by the noble Lord, Lord Cashman, who referred to an article in today’s Times written by a Member of the other place, Joanna Cherry. She is, of course, the chair of the Joint Committee on Human Rights, on which I sit. I attended the same meetings as she did with members of the LGBT community in Rwanda and with the chairman of the Legal Aid Forum. I must tell your Lordships that I do not agree with the views that she expressed in the Times. She obviously comes from a political party that disagrees with this policy, and I am afraid that that has coloured her judgment in this regard. I do not find that the evidence that we heard sustains her conclusions.

We heard that Rwanda is a leading light in the region—east Africa—for the LGBT community. As we heard from the noble Baroness during the previous day of Report, this is a country that does not discriminate against LGBT activity and has very strong general protection against discrimination in its constitution. For those reasons, I am afraid I have the misfortune to disagree with the noble Lord, Lord Cashman.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I was not on the visit to Rwanda with the committee, but I looked at all the notes that were taken, and I want to make it clear that, while the constitution of Rwanda provides remedies for those who have suffered discrimination, the problem is that no cases have ever been brought using that part of the constitution. To say that there are well-established principles and well-established methods to protect individuals has not been tested in the courts—and the opinion of others who were approached was that the place was not safe. Noble Lords heard that from the noble Baroness, Lady Lawrence, on Monday. Unfortunately, when noble Lords say that it depends on how one approaches these things, I am afraid that it does—it depends on whether one has an open mind and listens clearly or does not.

[Lord Cashman (Lab)]

For the record, the Foreign Office travel advice for Rwanda was:

“LGBT individuals can experience discrimination and abuse, including from local authorities. There are no specific anti-discrimination laws that protect LGBT individuals”.


In that instance, I wonder why the UK Government give refuge and asylum to LBGT people from Rwanda.

[Baroness Lawrence of Clarendon (Lab)]

My Lords, I, too, went to Rwanda with the noble Lord and, yes, the constitution talks about LGBT rights—but the difference is that those individuals cannot protest, march or make themselves known out in public. That was what they said to us. I spoke to people individually, and that was the information that I received—that it is not safe for LGBT people.

[Baroness Meyer (Con)]

My Lords, I am the last person to speak who was also in Rwanda last week and attended the same meetings. Like the noble Lord, Lord Murray, what I heard was that it may not be exactly like in some countries but, within Africa, and compared to everything, the witnesses said that they were protected because of the constitution, that gay men could walk in the street holding hands and were not abused, and that Rwanda is a safe enough country to send people. I do not see where this obsession comes from that Rwanda is unsafe, and I suggest, as I said last time, that a lot of people who have preconceived views should go to Rwanda and check for themselves.

[Lord Anderson of Ipswich (CB)]

My Lords, do these exchanges not suggest that many of us are liable to hear what we hope we will hear and that there is good sense therefore, instead of leaving these difficult decisions to the judgment of Parliament, to leave them to the people who are better equipped to make them at the end of the day—including, on an interim basis, as the noble Baroness’s amendment wishes—the courts?

[Lord Coaker (Lab)]

I hesitate to stand up, looking around. We very much support Amendment 33 from the noble Baroness, Lady Chakrabarti. If she wishes to test the opinion of the House, we will certainly support her.

I just say to the noble Lord, Lord Murray, in defence of the Select Committee system, that sometimes there are differences of opinion on Select Committees. However, it is a really important point of principle about Parliament that reports from Select Committees, both in this and the other place, are hugely respected, even when there is a division of opinion. We need to be careful about suggesting that a chair of a Select Committee has come to an opinion because of their party-political allegiance. That is a difficult point to make. In my experience, chairs of Select Committees of all political parties have sometimes made very difficult decisions and come to very different conclusions from those of the party of which they are a member. That important point of principle underpins our democracy, and we need to be careful about suggesting that the chair of a Select Committee has been openly influenced by party-political allegiance to come to a particular conclusion. Going down that route is dangerous.

The point about this, as my noble friend Lady Chakrabarti outlined, is to try to give immigration decision-makers the opportunity to see whether a particular decision is able to be challenged in the courts and whether an individual’s rights need to be protected. My view is that this is of course about the rule of law, but the courts are there to ensure that justice is done. Justice in this case requires the ability for the law, as it impacts an individual, to be tested in the courts. That strikes me as fundamental to how the rule of law operates.

As the noble Viscount, Lord Hailsham, said, sometimes that is really inconvenient to Governments. Sometimes it is really convenient to all of us. Justice is an important part of our democracy and goes alongside the rule of law. I just say to my noble friend Lady Chakrabarti that I think that is what her Amendment 33, supported by others, seeks to do and why we would support it.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, this was a brisk debate that touched on a number of very important points. The noble Baroness, Lady Chakrabarti, in opening, developed her point with admirable concision, which I fear I will be unable to match in responding. None the less, in answer to her points relating to the protection of claimants—the same point raised by my noble friend Lord Hailsham from our Benches—we say that those protections are to be found in the Bill and the treaty and the mechanisms which they set up.

My noble friend challenged us on three specific points. He first said that, in his belief, the judiciary can be more robust in the way that it treats unmeritorious claims. Respectfully, I agree and I do not suppose that anyone in the Chamber would disagree. My noble friend went on to say that it is dangerous to exclude persons who are within the jurisdiction of our courts from their jurisdiction. In the special circumstances with which this Bill is concerned, I consider that the protections of such persons as are involved through the scheme of the Bill are guaranteed adequately by our arrangements with the Republic of Rwanda and the oversight that we have in place.

My noble friend went on to ask whether the policy was likely to achieve the aim of deterrence that we have sought with the Bill. He quite properly rehearsed his view to the House that he thought that it was unlikely to be the case. All I can say in response is that, for the reasons set out by my noble friend Lord Sharpe of Epsom, I beg leave to disagree.

My noble friend Lord Inglewood posed the question of whether it is government policy to look at each individual case. In relation to that, I refer him to Clause 4 of the Bill, which permits decisions based on the individual circumstances of particular applicants.

The noble Baroness, Lady Jones of Moulsecoomb, accused the Government of extremism and authoritarianism. I detect gratitude on the part of noble Lords on the Opposition Front Bench that, unlike on Monday, her fire was directed at the Government principally, instead of at their party. But she returned to the attack that she mounted on Monday. I disavow any suggestion that the Government are motivated by either extremism or authoritarianism.

There was another brisk debate involving the noble Lord, Lord Cashman, and the noble Baronesses, Lady Kennedy and Lady Lawrence, and my noble friends Lady Meyer and Lord Murray of Blidworth on these Benches. The conclusion, or the final submission in relation to that debate, was given from the Cross Benches by the noble Lord, Lord Anderson of Ipswich. I accept that noble Lords, having informed themselves by travelling to Rwanda and considering the position on the ground, have reached contrary views. The noble Lord, Lord Anderson of Ipswich, invited us to consider that the appropriate forum for discussion and consideration of these points is the courts. His Majesty’s Government begs to disagree: we find appropriate protections for claimants in the arrangements made for supervision by officials in real time via the structures set up in the Act to examine Rwanda’s compliance with its obligations. As we have heard in previous debates, one of the core principles that the Bill is seeking to address is to limit challenges that can be brought against the general safety of Rwanda.

16:15

Amendment 33 seeks to remove Clause 4 and replace it with a new clause. This new clause would not prevent a decision being made about whether it is safe to remove a person or any particular group of people to Rwanda, the courts and tribunals from reviewing such a decision, and a decision-maker from considering the risk of refoulement when making decisions on relocating people to Rwanda. This amendment would therefore completely undermine the objectives of the Bill.

The amendment is not necessary because there are appropriate safeguards in the Bill. These safeguards allow decision-makers and the courts to consider a claim that Rwanda is unsafe where it relates to the particular circumstances of an individual person, as I said a moment ago in answer to the question posed by my noble friend Lord Inglewood, and, if there is compelling evidence to that effect, to grant interim relief where removal would result in a real, imminent and foreseeable risk of serious and irreversible harm for the individual before their appeal was determined.

As my noble friend Lord Sharpe of Epsom set out on Monday, the Bill builds on the internationally binding treaty, reflecting the strength of the Government of Rwanda’s protections and commitments. The treaty, alongside the evidence of changes in Rwanda since summer 2022, which details the evidence His Majesty’s Government have used to inform our assessment on the safety of Rwanda, concludes that Rwanda is safe for the purposes of asylum processing, and the published policy statement outlines the key findings. The assurances we have negotiated in our legally binding treaty with Rwanda address the concerns of the Supreme Court, such that Rwanda is safe in general, and make detailed provision for the treatment of relocated individuals in Rwanda, ensuring that they will be offered safety and protection with no risk of refoulement. 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.

His Majesty’s Government and the Government of Rwanda have agreed and begun to implement assurances and commitments to strengthen Rwanda’s asylum system. This includes: devising new operational training to Rwandan asylum decision-makers; establishing clear standard operating procedures which will capture new processes implemented through the treaty; and strengthening procedural oversight of the MEDP and asylum processes through enhanced monitoring functions delivered by the monitoring committee. In advance of agreeing the treaty, we worked with the Government of Rwanda to respond to the findings of the court by documenting Rwanda’s existing asylum procedures and practice in the standard operating procedures relating to and reflecting the current refugee status determination and appeals process.

[Lord Kerr of Kinlochard (CB)]

Have the procedures required under Article 10.3 of the treaty to ensure that refoulement does not take place, as it did in the Israeli case, yet been devised?

[Lord Stewart of Dirleton (Con)]

My Lords, the Israeli case to which the noble Lord, Lord Kerr of Kinlochard, referred was—I make this point first—a completely different circumstance from the provisions set out in our Bill and the accompanying treaty. I will have to revert to the noble Lord on the specific point he raised, which is whether those procedures are in place as yet, or whether they come under the context of those to which I made reference—whether they are being worked up and implemented. If the noble Lord is content with that answer, I will correspond with him. I am grateful to him for indicating assent.

As I was saying, we will ratify the treaty only once we are satisfied that all necessary implementation is in place, and the treaty will be expedited. As I was saying in relation to the noble Lord’s point a moment ago, we continue to work with the Rwandans on this. As we set out to the House on Monday—

[Baroness Butler-Sloss]

If the treaty has to be agreed and the Government have to be satisfied, how can they expect us to recognise that Rwanda is at present safe?

[Lord Stewart of Dirleton (Con)]

My Lords, I think, with respect to the noble and learned Baroness, that that point has been canvassed extensively on previous occasions.

As we set out on Monday, the legislation required for Rwanda to ratify the treaty passed that country’s lower house on 28 February, and it will now go to that country’s upper house. Once ratified, the treaty will become law in Rwanda. It follows that the Government of Rwanda would then be required to give effect to the terms of the treaty in accordance with its domestic law, as well as international law. As my noble friend Lord Lilley set out on Monday, it is inconceivable that Rwanda will not implement carefully and considerately, and we continue to work at pace with the Government of Rwanda on implementation.

We therefore do not consider it necessary to make the proposed changes to Clause 4 to permit decision-makers or courts and tribunals to consider claims on the basis of Rwanda’s safety generally, or that Rwanda will or may remove persons to another state in contravention of its international obligations or permit the courts and tribunals to grant interim relief, other than where there is a real, imminent and foreseeable risk of serious and irreversible harm. There are ample safeguards in the Bill, and these amendments would be contrary to the Bill’s whole purpose.

To conclude, we have made it clear that we cannot continue to allow relocations to Rwanda to be frustrated and delayed as a result of systemic challenges on its general safety. In this context, the safety of a particular country is a matter for Parliament and one in which Parliament’s view should be sovereign. The evidence that we have provided and the commitments made by the United Kingdom and the Government of Rwanda through this internationally binding treaty enable Rwanda to be deemed a safe country. The Bill will allow Parliament to confirm that it considers that it has sufficient material before it to judge that Rwanda is in general safe and makes it clear that the finding cannot be disturbed by the courts.

Before I sit down, I return in a bit more detail to the matter which the noble Lord, Lord Cashman, started with his comment and which was answered by others. As we have set out previously, the constitution of Rwanda includes a broad prohibition of discrimination and does not criminalise or discriminate against sexual orientation in law or policy. As part of the published evidence pack, the updated country information note gave careful consideration to evidence relating to the treatment of LGBT individuals in Rwanda. Rwandan legal protection for LGBT rights is, as we have heard, generally considered more progressive than that of neighbouring countries.

I will conclude my submissions with reference to the point raised earlier by my noble friend Lord Lilley when he spoke about the precedent set by the 2004 legislation and referred to the views of the noble and learned Lord, Lord Neuberger, in relation to parliamentary supremacy. As my noble friend correctly quoted, it is a matter of this country enjoying parliamentary supremacy. Parliamentary supremacy is at the heart of accountability to Parliament and, through Parliament, accountability to the people about whom my noble friend Lord Howard of Lympne has spoken so eloquently during the debate on this Bill.

In conclusion, I submit that the noble Baroness should not press her amendment for the reasons I have given. Were she to do so, I have no hesitation in inviting the House to reject it.

[Baroness Chakrabarti (Lab)]

As always, I am grateful to all noble Lords, particularly those who spoke briefly. I am grateful to my supporters, not least the noble Viscount, Lord Hailsham. Defending our constitution and the rule of law runs very deep in his family, and he has brought such honour to his family, your Lordships’ House and our country with his contributions on this Bill. To the noble Lord, Lord Lilley, I say simply that, in this case, the Supreme Court did not attack the policy; it made a finding of fact, as it is entitled to do.

I am grateful to all Members of your Lordships’ House who participated in such good faith on the trip to Rwanda, as part of the Joint Committee on Human Rights. As we have heard, even in good faith there can be a dispute of fact between parliamentarians, let alone people on different sides of your Lordships’ House. Forgive me, but the man of the match in answering that predicament was the noble Lord, Lord Anderson of Ipswich, who said that this is what courts are for. I am grateful, as always, for the support of my noble friend Lord Coaker.

The Minister kindly apologised for the lack of concision, but a psychiatrist would always find the magic words hidden in the many. On a previous occasion, he told us that Rwanda was to become safe by decree. Today, he told us that this is about special circumstances. The road to hell is not just paved with good intentions; it is paved with special circumstances as well. He speaks rightly of parliamentary sovereignty. We are part of Parliament, and parliamentary sovereignty is not executive domination.

I am particularly sad that parts of today’s debate contrasted with what we heard yesterday in the debate on foreign affairs, when so many noble Lords, including those from the Government Front Bench, spoke about the importance of the international rule of law. Today, the Home Office is on parade and we hear exactly the opposite. It is time to trust the courts, and it is time to test the opinion of the House.

16:27

Division 1

Ayes: 278

---

Labour: 125
Liberal Democrat: 70
Crossbench: 65
Non-affiliated: 6
Bishops: 6
Conservative: 4
Green Party: 1
Plaid Cymru: 1

Noes: 189

---

Conservative: 167
Crossbench: 11
Non-affiliated: 6
Democratic Unionist Party: 4
Ulster Unionist Party: 1

16:40

Amendment 34

Moved by

[Baroness Lister of Burtersett]

34: After Clause 4, insert the following new Clause—
“Section 57 of the Illegal Migration Act 2023Section 57 of the Illegal Migration Act 2023 (decisions relating to a person’s age) does not apply in relation to removals to the Republic of Rwanda.”Member's explanatory statement
This amendment disapplies section 57 of the Illegal Migration Act 2023 in relation to removals to the Republic of Rwanda, to restore the ability of domestic courts and tribunals to fully consider suspensive judicial review claims regarding removal decisions taken on the basis of age assessments of unaccompanied children, given that the Rwanda Treaty “does not cover unaccompanied children”.

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to move Amendment 34, in my name and that of my noble friend Lord Dubs and with the welcome support of the right reverend Prelate the Bishop of Chelmsford and the noble Baroness, Lady Neuberger. Worded slightly differently to those tabled in Committee in relation to removals to Rwanda, the amendment would ensure that any unaccompanied child wrongly assessed as an adult could challenge their assessment in domestic courts and tribunals from within the UK and could make that challenge on the basis of the facts and not just the law. In other words, we want to minimise the risk of any unaccompanied child being sent to Rwanda, which the treaty supposedly rules out but acknowledges might happen because they have been wrongly deemed to be an adult. I am grateful to ILPA, the Refugee and Migrant Children’s Consortium and RAMP, of which I am an associate, for their help.

This amendment is about ensuring the best interests of the child, in line with our duties under the UN Convention on the Rights of the Child as translated into UK immigration law and strongly advocated by the Children’s Commissioner. In Committee, a number of noble Lords detailed the evidence of the significant number of child asylum seekers wrongly assessed as adults, which I will not repeat. However, I note that just last week a study by the Centre for Criminology at the University of Oxford revealed that child asylum seekers with ongoing age disputes, under the Nationality and Borders Act 2022, were arrested, charged and convicted as adults and ended up in adult prisons at serious and obvious risk of harm. This is shocking.

The Minister failed to engage seriously with the evidence presented in Committee of frequent wrongful age assessment and of how the supposed safeguards he has now outlined three times already exist and simply are not working. Instead, he—and in some cases, his colleagues—tried to argue either that the amendment was unnecessary, which I will come to, or that it was harmful because it would act as an incentive to adults to represent themselves as children and would undermine the Bill’s supposed deterrent effect. Well, the deterrent argument was disposed of in Committee by the noble Lord, Lord Kerr, and the noble Baroness, Lady Brinton. I cited from the impact assessment for the Illegal Migration Bill that

“The academic consensus is that there is little to no evidence”


of immigration policies having a deterrent effect.

The incentive argument ignores the permission stage that was built into the judicial review process to weed out weak, frivolous or unmeritorious claims. Ultimately, if an asylum seeker is found to be an adult, they can then be removed, but first they will have been through a proper, thorough age assessment process involving qualified and experienced social workers as well as due legal process, which allows for consideration of the factual and legal correctness of the age assessment.

That brings me to why this amendment is so necessary. Without it, a child can be sent to Rwanda as an adult on the basis of a short visual assessment by two immigration officers, who are now defined in law as a relevant authority for age assessment purposes. This is despite the Home Office’s own advice that physical appearance and demeanour represent

“a notoriously unreliable basis for assessment of chronological age”.

The much-vaunted scientific methods, prayed in aid in Committee, do not even come into play if the age is decided on the basis of immigration officers’ visual assessment.

It was then argued that there was nothing wrong with a child having to challenge an age assessment from Rwanda. I am sorry, but there is everything wrong with that. It will be difficult for a probably traumatised child to make their case virtually—and it will have to be purely on legal grounds—and to access suitable legal support and representation. During that time, they will be placed in adult accommodation, which could be unsafe. Even if they are successful, there is the unedifying prospect of them being sent back to the UK as objects in a cruel game of pass the parcel. To quote the noble Baroness, Lady Mobarik:

“Surely, flights returning traumatised children to the UK from Rwanda are not an image that the UK Government, the Rwandan Government or the public wish to see”.—[Official Report, 19/2/24; col. 429.]


Such an image would shame us, and we have a duty to safeguard the best interests and welfare of children by ensuring that they are not wrongly sent to Rwanda as adults.

I hope, therefore, that noble Lords from all Benches will support this amendment. I beg to move.

16:45

[Lord Dubs (Lab)]

My Lords, I would like to endorse the arguments used by my noble friend Lady Lister and to fully support this amendment. We all know that child assessments are difficult, and they can be traumatic for the children concerned. I know of an example where a girl, who was quite sensible and coherent, was being interviewed, and then, when she left the interview, she was traumatised, deeply upset and it was a very distressing experience. It will be even more distressing if so much more hangs on the outcome.

Officials can get it wrong; it is difficult to assess the age of children, and this modest amendment simply seeks to provide a safeguard against getting it wrong. Yes, the Minister can say that if we get it wrong, the child can be brought back from Rwanda—what a terrible thing to subject a child to. Asylum-seeking children are among the most vulnerable of all asylum seekers, and I hope the House will support the amendment.

[The Lord Bishop of Chelmsford]

My Lords, I rise also to support Amendment 34. I will keep my comments brief because I fully support the statements from the noble Baroness, Lady Lister, and the noble Lord, Lord Dubs. But please do not mistake my brevity with the level of importance that should be attached to this issue. Safeguarding is not some burdensome requirement but a moral and legal imperative. It is for this reason that I repeat the request that I made in Committee for a child’s rights impact assessment to be published.

It is welcome that the Government have excluded unaccompanied children from the Rwandan partnership, but to safeguard potential children effectively, this commitment must be more than a mere intention; it must be operationally put into practice. This amendment would help mitigate the risk of a person being sent erroneously—when they are, in fact, a child—by sensibly awaiting the result of any age assessment challenge before their removal. When it comes to a child, we cannot allow harm to be addressed retrospectively, as surely it is the role of any Government to prevent harm, regardless of the immigration objective. Trauma, as we have heard, simply cannot be remedied.

The Minister has shared that the Home Office will treat an individual claiming to be a child as an adult, without conducting further inquiries, only if two officers have separately determined that the individual’s appearance and demeanour strongly suggest that they are significantly over the age of 18. But practice to date shows that this is no safeguard at all, because it has not prevented hundreds of children from being incorrectly assessed as adults.

I also want to add that the hotels reinspection report by the Independent Chief Inspector of Borders and Immigration, finally published last week, states,

“there has been no assessment of the collective needs of the children”.

That is traumatised unaccompanied children whom the Home Office has placed in hotels. This disturbing finding does not provide any reassurance that the Home Office is equipped to ensure children are protected through the age assessment process.

Therefore, given that errors have been made in the age verification process and children have been subjected to unsafe adult environments as a result, can I ask the Minister to agree today to review the Home Office’s age assessment guidance, in consultation with stakeholders, in light of the new risks posed by the Rwandan removals? Will he also be willing to meet with the signatories of the amendments in this group to discuss this matter?

Finally, the golden rule, “Do to others as you would have them do to you”, could easily be rephrased for this context into the question, “Would you consent to this course of action for your own child or grandchild?” I do not believe that there is anyone among us who would. For this reason, I pray that the Government consider the issues raised today with the consideration that every child deserves.

[Baroness Neuberger (CB)]

My Lords, I rise very briefly to support the amendment in the name of the noble Baroness, Lady Lister of Burtersett, the noble Lord, Lord Dubs, and the right reverend Prelate the Bishop of Chelmsford.

I wholly agree, and I particularly want to echo what the right reverend Prelate said. Would you allow this to happen to your child or grandchild? The answer around this Chamber will be “no”—therefore it should be our answer.

[Baroness Butler-Sloss (CB)]

My Lords, I also support Amendment 34. Several years ago, I was invited by the charity Safe Passage to a drop-in centre of young people who were migrants. I talked to two young Afghans, both of whom were known to be under 18. One had a moustache and the other had a beard. How on earth could an assessment be made, if they did not have any papers, that they were not over 18? There are real problems with some countries where the children—particularly the boys—mature very quickly. That is the sort of problem that is not being met by the Bill.

[Baroness Brinton (LD)]

My Lords, I tabled Amendment 35 in this group, which is broadly similar to Amendment 34 in that it is concerned with relying on age assessments of children, and those who end up in Rwanda—even though the Bill claims that they will not end up in Rwanda.

I thank the Minister for his letter, which I received by email just before Report started on Monday. I did not think that I needed to check with the other people I was told it would be cc’d to, but a large number of them have not received it. I wonder whether the Minister would mind forwarding it on to them, even though they are all named.

I agree with everything that has been said by the previous speakers, and from these Benches we will support the noble Baroness, Lady Lister, if she wishes to test the opinion of the House.

Regarding the letter about age assessment, I note that the SI for immigration age assessments went through on the 9 January and came into force on the 10 January. I also note that the Home Office has not let launched the process but is beginning to plan how to do so. I asked my question because the detailed report by the specialist committee, the AESAC, was always concerned that there is no infallible method for gauging age—and the letter from the Minister says that the AESAC acknowledges that

“there is no infallible method for either biological or social-worker led age assessment”,

and that

“the committee acknowledge that there is uncertainty in the data used to predict the maturation points of the teeth and bones particularly”.

So, despite three pages of trying to persuade me that age assessment is okay, the principal concerns of this specialist committee are that it is not something that can be relied on scientifically.

On that basis, I hope that the noble Baroness, Lady Lister, will test the opinion of the House later.

[Baroness Lawlor (Con)]

My Lords, I oppose this group of amendments on two grounds. I too want to promote the best interests of the child, but it is not in the interests of the child to be sent on dangerous journeys by land and sea, and in small boats, or to be removed from the care of family, relatives, friends, and a familiar home, to a distant country, to be brought up in care by strangers, where public authorities are stretched to the limit looking after their own children. I hope that the deterrent effect will be taken seriously by parents contemplating sending young children.

Many of the children are discovered, after scientific age assessment, not to be minors. I will not discuss the findings, and there are many different views about the validity of age assessments in this country. But I will take an impartial view from a neighbouring G7 country: that age determination tests have been used and have revealed that many who claim in a sample—I think one of the samples was for 2019—were not so. I draw attention to the analysis of age based on bone age, where radio- graphical evidence suggested that 55% of those claiming to be minors were over the age of 18. In fact, the average age of that 55% was found to be 29.

So, for two reasons, I oppose any change to the Bill, which will weaken the deterrent effect, as these amendments would. First, it is not in the interests of the child to be removed from their family, and not in the interests of the parents. I agree that nobody in this Chamber would probably contemplate doing it, and I do not think we should encourage parents overseas to contemplate doing it. Secondly, without tough conditions on age assessment, people might be encouraged to make false claims.

[Lord Lilley (Con)]

The noble Baroness, Lady Lawlor, makes an important point that provokes in me a question. I understand why the right reverend Prelate the Bishop of Chelmsford and others—all of us, I hope—have the interests of children at heart. I answer her question, “Would we send our child to Rwanda?” by asking her, “Would she send a child in a boat from France, a safe country, to the United Kingdom?” I hope she will answer that before the end of this section. I do not think she would.

In this Bill, we are trying to deter them from coming. I understand the collective view of the Bench of Bishops is that we should not deter but prevent them; we should make prevention—the actions taken by the French police force, the interruption of the people smugglers and so on—effective. If that is the case, will she confirm that it is the policy of the bishops to stop any children getting to this country? If prevention is made effective, they will not be able to—and nor will gay people or pregnant women or the other groups we are concerned about. They will all be prevented. Is that the view she is espousing?

[The Lord Bishop of Chelmsford]

My Lords, I will rise just to answer the question that was put to me. First, I do not speak on behalf of the Church of England; I will be quite clear on that. We are not whipped on these Benches; we speak individually. There happens to be a great deal of agreement among us on these Benches on these issues, but we do not speak with one voice. The question I posed about whether any one of us would want this situation for our children was actually around age assessment. If we found our child or grandchild, or anyone we knew, in this situation, would we want them to be assessed in this way?

As to the question of whether I would ever put a child on a boat, I think that is the wrong question. The point is that, behind every one of these figures, there are individual stories of enormous amounts of trauma that most of us cannot even begin to contemplate. I do not want to make a judgment about what goes on before somebody gets on a boat. I do not know whether it is necessarily parents putting children on the boats; we do not even know what has become of the parents of the children who end up here. I would not want to make a judgment on that.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Baroness, Lady Lawlor, said that the Government were making tough decisions by their current policy to make a deterrent. I think that was the gist of the argument she used. As I have said in previous debates, I sit as a magistrate and occasionally I am put in the situation of having to make a decision on somebody’s age. It is usually a very unfortunate circumstance, but it is something I am sometimes called to do. In answer to the noble Baroness’s point, what we want to do on this side of the House is make accurate determinations so that the right decision is made, which defends our reputation as a country which observes domestic and international law and does the best for the children we find in our care. That is the purpose of these amendments, and I support my noble friend on Amendment 34.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I am grateful to all noble Lords for their contributions to this debate. Amendment 34, tabled by the noble Baroness, Lady Lister, would mean that when a decision is made to remove someone to Rwanda under the Illegal Migration Act 2023, Section 57 of that Act would not apply if there was a decision on age.

17:00

As I set out in Committee, it is important that the Government take decisive action to deter adults from claiming to be children and to avoid lengthy legal challenges to age assessment decisions preventing the removal of those who have been assessed to be adults. I have stated previously, and I agree, that assessing age is inherently difficult, but we must disincentivise adults from knowingly claiming to be children, which not only seeks to frustrate removals but causes wider resource and financial implications. It reduces both the availability and the accessibility of services for genuine children in need of them. I will return to these subjects in a second.

Accordingly, Section 57(2) of the 2023 Act disapplies the yet-to-be-commenced right of appeal for age assessments established in Section 54 of the Nationality and Borders Act 2022 for those who meet the four conditions in Section 2 of the 2023 Act. Instead, under Section 57(4) of the 2023 Act, those wishing to challenge a decision on age who meet the four conditions will be able to do so through judicial review, which will not suspend removal. This judicial review can continue from outside the UK after they have been removed. We will ensure that the appropriate support and facilities will be in place in the country of removal so that the individual can effectively participate in their judicial review from abroad.

The noble Baroness, Lady Lister, accused me of failing to engage with the statistics she quoted in Committee. The age dispute statistics that we have differ from the statistics obtained by organisations such as the Helen Bamber Foundation in its April 2023 report Disbelieved and Denied and the joint January 2024 report by the Refugee Council and the Helen Bamber Foundation, Forced Adulthood. We cannot engage because the Home Office is unable to confirm the statistics contained within these reports, which are derived from around 70 local authorities’ responses to FoI requests relating to individuals initially assessed as adults and referred for a further assessment. These statistics cannot be usefully compared with published Home Office figures, which cover all 211 local authorities and aggregate the outcomes of initial age decisions by the Home Office, comprehensive age assessments and any subsequent legal challenges. The Home Office is looking to improve the manner in which age assessment data can be disaggregated in national reporting systems and has included age assessment data requirements as part of planned improvements to internal systems.

Section 57(5) of the 2023 Act also provides the basis on which a court can consider a decision relating to a person’s age in judicial review proceedings for those who meet the four conditions in Section 2 of the 2023 Act. It provides that a court can grant relief only on the basis that it was wrong in law and must not on the basis that it was wrong as a matter of fact, distinguishing from the position of the Supreme Court in the judgment in R(A) v Croydon London Borough Council [2009] UKSC 8. The intention is to ensure that decisions on age are reserved for those qualified and trained to assess age.

The amendment would result in treating those who are to be removed to Rwanda differently from those removed to another country. The purpose of the Illegal Migration Act is to tackle illegal migration and create a scheme whereby anyone arriving illegally in the UK will be promptly removed to their home country or to a safe third country to have any asylum or human rights claim processed. All cohorts who are removed under the Illegal Migration Act should, therefore, be treated the same.

As I said, determining the age of a young person is a challenging task. The majority of individuals arriving illegally in the United Kingdom do not have valid documentary evidence of their age and some may misrepresent their age, whether intentionally or otherwise. Clear safeguarding issues arise if a child is inadvertently treated as an adult, and equally if an adult is wrongly accepted as a child and placed in accommodation with children to whom they could present a risk. Additionally, there are incentives for adults to claim to be under 18 years old as unaccompanied children generally receive a greater level of support than adults in several respects, including the accommodation they are provided with, the procedural and substantive treatment of their immigration claims, the arrangements that would need to be made to secure their possible removal, and the circumstances in which they can be held in immigration detention.

It is Home Office policy that an individual claiming to be a child will be treated as an adult without conducting further inquiries only if two Home Office members of staff independently determine that the individual’s physical appearance and demeanour very strongly suggest that they are significantly over 18 years of age. The lawfulness of this process was endorsed by the Supreme Court in the case of R (on the application of BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38. So we consider that these provisions are entirely necessary to safeguard genuine children and guard against those who seek to game the system by purporting to be adults. It therefore follows that I cannot support Amendment 34.

Amendment 35, tabled by the noble Baroness, Lady Brinton, seeks to prevent the relocation of unaccompanied children and former unaccompanied children from the UK to the Republic of Rwanda. The noble Baroness will be aware that Article 3 of the UK- Rwanda treaty makes specific reference to unaccompanied children not being included in the treaty, and that the UK Government will not seek to relocate unaccompanied children under the age of 18 to Rwanda. The amendment is therefore not necessary.

The Government recognise the particular vulnerability of unaccompanied children who enter the UK by unsafe and illegal routes. The duty to remove in the Illegal Migration Act does not require the Secretary of State to make removal arrangements for unaccompanied children until they turn 18, at which point they will become liable for removal as an adult, either to their home country if it is safe to do so or to a safe third country. Taking these measures will send a clear message that children cannot be exploited and cross the channel in small boats for the purpose of starting a new life in the UK.

I am happy to give the noble Baroness the assurance that I will resend the letter to all those who should have received it, but I note that she quoted from the letter and I need to expand on those quotes a little. She referred to AESAC, which

“acknowledges that there is no infallible method for either biological or social-worker-led age assessment that will provide”—

this is the key phrase—

“a perfect match to chronological age”.

It is

“key that methods used for age assessment have a known chance margin of error … that is to say classifying genuine children as adults or vice versa”.

AESAC has proposed an approach that increases accuracy in multiple ways. First, we know that—again, this is important—

“used in isolation, any one biological method of age assessment has a level of uncertainty in assessing chronological age. However, the AESAC report proposes a triage approach, with the methods to be combined dependent on the sex and claimed age of the person being assessed”.

[Baroness Brinton (LD)]

The Minister failed to quote the next part of the letter, which I started to quote, about the committee acknowledging that there is uncertainty in the data. It goes on to say that there is

“greater confidence in the assessment of whether the claimed age is possible”.

The point I was making is that it is still a guess. That is the issue, and it is why doctors are refusing to do these age assessments—they do not believe they can be relied on.

[Lord Sharpe of Epsom (Con)]

And the point I was making is that this is done in combination with a variety of other methods and therefore, in aggregate, those methods will deliver more accurate age assessments.

The tragic events this week, which saw a child as young as seven lose their life attempting to cross the channel in a small boat, are an unwelcome reminder of the desperate need to stop this vile trade. Like my noble friends Lady Lawlor and Lord Lilley, I would not allow a child or grandchild to make a dangerous and illegal channel crossing from a safe country. That is the best way to stop this.

This Government remain focused on doing everything we can to save lives, deter illegal migration and disrupt the people-smuggling gangs responsible for the dangerous channel crossings. I respectfully ask that the noble Baroness do not move her amendment.

[Lord Scriven (LD)]

I have an important question. The Merton assessment is the standard assessment that is done of an individual where the age is in dispute. Will any child or potential adult be sent to Rwanda before that Merton assessment is carried out, or is the assumption that no person whose age is in dispute will be sent to Rwanda before the Merton assessment is carried out?

[Lord Sharpe of Epsom (Con)]

As I have tried to explain, the initial assessment is made by two Home Office officers; the Merton assessment comes later in the process. I do not know quite where in the process, but I will find out.

[Lord Scriven (LD)]

May I therefore ask another question? What professionals are in Rwanda who can carry out that Merton assessment? Under the Bill and the treaty, a person comes back only if they have been assessed as an unaccompanied child under the age of 18. If the assessment is not done in the UK, how can it be done in Rwanda if that speciality is not developed enough?

[Lord Sharpe of Epsom (Con)]

My Lords, we have discussed on numerous occasions the question of a number of vulnerable individuals who may end up being relocated to Rwanda. The treaty makes specific provision for the precise and detailed professional help those people will need.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank noble Lords who have spoken in support of my amendment. To pick up what the noble Lord, Lord Scriven, has been saying, that is part of the point: if two immigration officials say that the child is an adult, the Merton assessment does not come into operation. The point is that we do not have professional social work assessment of the children.

I will not go into what noble Lords who have spoken in support said, but I point out that the right reverend Prelate raised two specific questions which were not addressed. One was about our still not having a child rights impact assessment; the other was a request. I do not know what will happen to these amendments but, at the end of the day, I hope there will be a meeting of all those who have signed them and that stakeholders are consulted on the assessment process, in order to address the very point raised by the noble Lord, Lord Scriven. Does the Minister wish to intervene?

[Lord Sharpe of Epsom (Con)]

My apologies: I meant to say that, yes, of course I am happy to meet.

[Baroness Lister of Burtersett (Lab)]

I thank the Minister very much, but there is no child rights impact assessment, needless to say.

Noble Lords who spoke against very much used the arguments used in Committee, and evidence was produced there to rebut those arguments. I thank the Minister for his response—he did engage with the evidence this time—but to be honest, if I am asked which evidence I believe more, the Home Office’s figures or the figures collected by people working in the sector with local authorities, I am afraid that I put more confidence in the latter.

I have heard nothing today that has effectively countered the rebuttal of the arguments made by the Minister and his colleagues—some of them put for the fourth time—that I gave in my opening speech. I do not propose to repeat them, in the interests of time. I simply note that the Home Secretary said this week that he would look closely at any amendments that your Lordships’ House supported but would reject any that wrecked or watered down the Bill. Mine is not a wrecking amendment and were the Government to accept it, that would demonstrate true strength in the willingness to be flexible in order to protect the best interests of children. I do not call that watering down. In the interests of children and their welfare, I would therefore like to test the opinion of the House.

17:13

Division 2

Ayes: 265

---

Labour: 126
Liberal Democrat: 69
Crossbench: 55
Non-affiliated: 6
Bishops: 5
Conservative: 2
Green Party: 1
Plaid Cymru: 1

Noes: 181

---

Conservative: 165
Crossbench: 9
Non-affiliated: 4
Ulster Unionist Party: 2
Democratic Unionist Party: 1

17:25

Amendment 35 not moved.

Clause 5: Interim measures of the European Court of Human Rights

Amendment 36

Moved by

[Lord Hope of Craighead]

36: Clause 5, page 5, line 15, leave out “Accordingly, a court or tribunal must not” and insert “Notwithstanding subsection (2), a court or tribunal may”

[Lord Hope of Craighead (CB)]

My Lords, there are three amendments in this group, and they are all directed to the provisions of Clause 5 as to how interim measures of the European Court of Human Rights under Rule 39 of its rules are to be dealt with. None of these amendments is to be pressed to a Division, and so, following the example of the noble Baroness, I can be fairly brief.

My Amendment 36 seeks to replace the direction in Clause 5(3) that a court or tribunal of this country

“must not have regard to the interim measure when considering any application or appeal which relates to a decision to remove the person to … Rwanda”

with the provision that a court or tribunal “may” do so.

I have also added my name to Amendment 37, in the name of the noble Lord, Lord Coaker, which would require a Minister of the Crown to consult the Attorney-General before deciding whether the United Kingdom will comply with the interim measure. Amendment 38, in the name of the noble Baroness, Lady Chakrabarti, deals with the problem that Clause 5 creates more directly, in that it seeks to leave out the clause altogether.

Although we deal with the clause in different ways, we are united in our belief that Clause 5 provides for what will be a plain breach of international law. I do not think that I need to say much about that at this stage, because it was very fully debated in Committee. There are two different views, one way and the other, but I believe that, while that difference of view may remain, it can really be regarded as academic when one has regard to what happens in practice.

The noble and learned Lord, Lord Etherton, said in his contribution to our debate on 19 February that:

“International law has, therefore, reached a settled state of practice and agreement between member states and the Strasbourg court”.—[Official Report, 19/2/24; col. 468.]


That agreement is that interim measures are treated as binding. The United Kingdom has contributed to that settled state, not only by always complying with such measures until now but by calling on other states to do so when it suits our interests.

It is well recognised that custom, such as that in which this country has participated, is a source of international law. That has a long history; much of the civil law system, before the adoption of codes in the time of Napoleon, was built on custom and is still part of the law in certain respects in Jersey. The fact that states act in a consistent manner, as the United Kingdom has done and has called on others to do until now, can be seen as a good indication that member states are under an obligation to do so.

[Lord Lilley (Con)]

Will the noble and learned Lord comment on the decision of the French Government to ignore Rule 39 rulings and, in particular, to send someone back to Uzbekistan?

[Lord Hope of Craighead (CB)]

I was trying to explain that I am not getting engaged in that kind of debate. We have discussed the issue very fully in Committee —this is Report, and I have stated my position. I hope that the noble Lord, who has spoken now, will be content to accept that I can proceed and present my position.

[Lord Lilley (Con)]

But your position is that this is now settled and that member states all agree, when they patently do not.

[Lord Hope of Craighead (CB)]

My Lords, I am not going to respond. As I say, this is Report, and I am adopting a very particular position on settled practice, which the United Kingdom has participated in without exception, ever since the matter first was put into the rules. That being so, the idea that this country can simply unilaterally depart from that practice when it suits it is contrary to international law and is misconceived. My amendment, therefore, seeks to avoid that position and would allow the courts of this country to play a part in the procedure.

The Constitution Committee said in its report that Clause 5(3) raises “serious constitutional concerns”. I agree with that. As the committee put it:

“It is conceivable that a person may bring legal proceedings in the UK to compel a minister to adhere to an interim measure”.


Clause 5(3), as it stands, would prevent our courts giving effect to an interim measure in that way. The committee regarded that as a breach of the principle of the independence of the judiciary, which all Ministers of the Crown are under a duty, under Section 3 of the Constitutional Reform Act 2005, to uphold.

17:30

Our courts and tribunals should be able to exercise that role. There may be defects in the procedures adopted by the European Court of Human Rights; among other things, there is no right for the party against whom proceedings are brought to appear and express a view, whereas in our courts that certainly is a position, and our procedures are much more consistent with what we regard as in accordance with proper procedures. What my amendment seeks to do, very simply, is to enable our courts and tribunals to exercise that role in this important matter. I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, I will speak very briefly in support of the noble and learned Lord, Lord Hope, and the amendments in this group. I do so for three reasons.

First, whatever one’s views about international law, parties to any dispute must have some access to interim relief—whether neighbourhood disputes or business disputes, and particularly in relation to human rights concerns. The Government are resisting interim relief in our domestic courts, but they really cannot do that in relation to the European Court of Human Rights as well, or there will be no interim relief for mistakes that can lead to very dire consequences—as has happened in the past, even in immigration cases in this country.

The second reason I support the amendments in the group is this. When the Government originally raised concerns about Rule 39 last year, it was because of natural justice concerns about the procedure of the courts not always allowing Governments to be heard, or not allowing them to be heard after interim relief had been granted. Those procedural concerns have now been addressed, not least thanks to the efforts of Foreign Office Ministers, including the noble Lord, Lord Ahmad of Wimbledon, for which he is to be commended.

Finally, I think back to yesterday’s debate, which did your Lordships’ House such credit. I remind noble Lords that there are currently Rule 39 interim measures in place to prevent the Russian Federation executing Ukrainian prisoners of war. It will do our arguments and moral authority no good at all if we start saying that we can pick and choose which Rule 39 measures we accept.

I say to the noble Lord, Lord Lilley—in relation to his question to the noble and learned Lord—that he might like to look at today’s Politico, where Dunja Mijatović, the Council of Europe Commissioner for Human Rights, has criticised not just the present Bill but the French state for the very case that he referred to. The French were wrong to do what they did and we must do better.

[Lord Jackson of Peterborough (Con)]

My Lords, I oppose Amendments 36, 37, and 38 in respect of Rule 39 interim measures. I am afraid that I will not observe or respect the admonition that we should brief necessarily. We are discussing the substantial and significant issue of parliamentary sovereignty, and the right of the British people to have their views respected and not blocked by an unelected House, especially when the elected House, the other place, has been able to make a decision in significant numbers.

In deference to the sensitivities of the noble Lord, Lord Hannay, I will, for the avoidance of doubt, be referring to “an international” rather than “a foreign” court. I am sure he will be pleased about that. These are fundamentally blocking or wrecking amendments, designed to make the Bill inoperable. They are designed to thwart the will of the people, expressed through an electoral mandate and the will of the other place, to reduce immigration and to fulfil the primary duty of government, which is to protect its borders and its people and, more importantly—I look to the Lords spiritual in this respect—the moral imperative to save lives in the channel and destroy the business model of evil people traffickers.

More specifically, these amendments subvert and traduce the long-held principle that our laws are made in Parliament and implemented by the courts—simply, the concept of parliamentary sovereignty—in favour of a nebulous, opaque concept of “the rule of law” and the ECHR as a living document. The former is essentially uncodified and lacks precise consensual meaning, but it is used to advance judicial activism by unelected, unaccountable jurists in an international court, undermining faith and trust in the court system, parliamentary democracy and government in this country and destroying the delicate equilibrium between the Executive, the legislature and the judiciary. There is but one rule of law, and that is made in Parliament by elected representatives. That confers legitimacy on our proceedings. These amendments will assist in furthering the trend towards the politicisation of the judiciary.

Even the concept of the separation of powers, much lauded in this House, is itself alien to the constitutional settlement of the UK, and is certainly an evolving issue. It is unclear and prey to subjective interpretation, as we established earlier this week on Report when we discussed the deeming presumption of a safe list for asylum seekers, including Greece, in the case of Nasseri v Secretary of State in 2009. This was ultimately found by the Appeal Court and the House of Lords, under Section III of the ECHR and the Human Rights Act in respect of inhuman treatment, not to have violated those pieces of legislation. That was the Blair Government, who created an unrebuttable presumption that a list of countries was safe, so there is a precedent already set many years ago.

I wish to ponder briefly the idea of the rule of law, Rule 39 interim measures and the implications for parliamentary sovereignty and the myth of the ECHR, which is eulogised with rapture by so many noble Lords in the context of our own Parliament and judicial system. Advancing the rule of law as superior to parliamentary sovereignty—“the rule of lawyers”, as my noble friend Lord Lilley said in his excellent opinion editorial in the Daily Telegraph two days ago—is what we are looking at. It is about the subjective fiat of another court, over which we have no control. It is a modern phenomenon, as opposed to parliamentary sovereignty, and an example of judicial mission creep. That said, even Lord Bingham stated, after the case of Jackson v Attorney-General on the Hunting Act 2004:

“The bedrock of the British constitution is … the supremacy of the Crown in Parliament”.


He echoed the thoughts of such eminent jurists as Lord Denning and AV Dicey, to whom I referred in Committee.

As we know, and as my noble friend Lord Lilley alluded to earlier, the French have taken an altogether more robust view of the authority and sanctity of their own domestic legislation vis-à-vis the perverse and sometimes dangerous and damaging rulings of the ECHR. In November 2023, Interior Minister Gérald Darmanin removed an Uzbek national, MA, who was allegedly a radicalised Islamist extremist, despite a Rule 39 interim measure against this being done, the first time that the French Government have openly defied such an interim measure. Indeed, they also defied the Conseil d’État, the equivalent of the Supreme Court.

The French elite is more likely to question and challenge the état de droit, the French equivalent of the rule of law. In an article in Le Figaro—

[Baroness Brinton (LD)]

The noble Lord said earlier that he wants to speak at length because he feels the issue is important to expand on. The Companion says about Report at paragraph 8.147:

“Arguments fully deployed in Committee of the whole House or in Grand Committee should not be repeated at length on report”.

[Lord Jackson of Peterborough (Con)]

I am interested that the noble Baroness for the Liberal Democrats is so keen to avoid debate but, for the avoidance of doubt, I have not repeated any points I previously raised.

[Baroness Meacher (CB)]

We do not make Second Reading speeches on Report.

[Lord Jackson of Peterborough (Con)]

I take on board the noble Baroness’s view, but I am not making a Second Reading speech. I am speaking specifically about these amendments.

[Lord Gascoigne (Con)]

My Lords, there is a long day ahead and there have been many deliberations on all these subjects beforehand. Good points have been made about the Companion. I ask that every noble Lord observes what is in it and tries to be as concise as possible.

[Lord Jackson of Peterborough (Con)]

I thank the Whip for that guidance. If I can proceed to conclude my remarks—

[Baroness Meacher (CB)]

No.

[Lord Jackson of Peterborough (Con)]

However much the noble Baroness heckles from a sedentary position, I will not sit down and I will finish my speech. Rule 39 interim measures, as we learned in Committee, were not in any meaningful sense court rulings per se and, more specifically, great British statesmen and jurists such as David Maxwell Fyfe, who has been quoted, and Winston Churchill never signed up to the court taking powers upon itself to make binding injunctions. This is at the very heart of these amendments. Indeed, it was debated and specifically rejected in terms. It is only since 2005, when activist judges were acting in the case of Mamatkulov and Askarov v Turkey, that the court has given itself a power ultra vires to the original convention—an important point enunciated previously by, among others, the noble Lord, Lord Faulks, the noble and learned Lord, Lord Woolf, and my noble friend Lord Sandhurst.

The clause that amendments today seek to strike down, eviscerate and render otiose is not an example of arbitrary power but a specific power for this Bill and a set of unprecedented geopolitical and economic circumstances: mass migration. It is not a blanket disregard but a specific power. In summary, Rule 39 rules were never part of the European convention or constitution and there is no evidence, other than the hyperbole in this Chamber, that the UK not being bound by these interim measures undermines our overall compliance with international law and our international obligations, responsibilities or undertakings. The irony of these amendments is that they lock in the UK to adherence to a regime that even the court itself accepts is suboptimal and needs urgent reform. These amendments offer a carte blanche to a broken system.

The court itself does not work in its efficacy and the power to produce a desired result, with 48% of leading judgments being unaltered and not acted upon in the past 10 years across all 46 members of the convention. We have a failing, politicised, secret and unreformed court that some noble Lords wish to legislate to usurp the sovereignty of our Parliament. For these and other reasons, I ask your Lordships to resist these amendments because they are not only consequential but dangerous.

[Lord Alton of Liverpool (CB)]

My Lords, I will be brief. I follow my noble and learned friend Lord Hope of Craighead and the noble Baroness, Lady Chakrabarti, in supporting these amendments. I simply say to the noble Lord, Lord Jackson, that yesterday was the 78th anniversary of Winston Churchill’s famous speech in Missouri; it was entitled Sinews of Peace and it dealt with issues such as the Iron Curtain coming down across the Europe, and why Winston Churchill believed we needed a convention on human rights and supported the creation of the Council of Europe as the best buttress—alliances based on the rule of law—to preserve the peace of Europe and the world.

In the troubled times in which we live—the noble Baroness, Lady Chakrabarti, referred to the debate on these things in your Lordships’ House yesterday—the upholding of the rule of law, especially in the face of all that Putin’s Russia is doing in Ukraine, is paramount—

17:45

[Lord Jackson of Peterborough (Con)]

The noble Lord has a proud and long-standing record of defending human and civil rights, which we all support and congratulate him on. However, does he not agree that a system in which you have an unnamed foreign judge in an international court imposing a late-night judgment, and which allows the UK no opportunity to give its own evidence or respond, or understand the evidence against it, is surely not an example of due process or, more importantly, the rule of law?

[Lord Alton of Liverpool (CB)]

I disagree with the noble Lord; the amendments are about interim measures. The Joint Select Committee on Human Rights, on which I serve, took evidence on this issue and I want to refer to that for a moment. Having heard the evidence, these were the conclusions of a committee of the sovereign British Parliament. In paragraph 105, we said:

“We recognise that there are differences of opinion over whether or not interim measures ought to be binding on the United Kingdom. However, as a matter of international law, they are binding. Failing to comply with interim measures directed at the UK would amount to a violation of the European Convention on Human Rights”.


On Clause 5, we said that the Bill

“contemplates a Minister choosing not to comply with an interim measure and thus violating the UK’s international human rights obligations. It also prevents the domestic courts taking into account what may be a relevant factor for any decision whether or not an individual should be removed to Rwanda. This is not consistent with a commitment to complying with the UK’s obligations under the ECHR”.

That was the committee’s considered, majority view; it is not a view that has been responded to by the Government. Here I ask the noble and learned Lord, Lord Stewart, or the noble Lord, Lord Sharpe of Epsom, when they come to reply, to go back to the Committee stage of this Bill, where they gave an assurance that, before we went any further, Parliament would be told the response to the findings of the Joint Committee on Human Rights. As recently as Monday, I was told when I intervened on this point that there would be a response for today; I would like to know when it is going to be forthcoming.

It brings our Parliament into disrepute when we set up Joint Committees and say we will consider issues of this kind in great detail, and when reports have been made available to the Government, but no response has been forthcoming before detailed consideration of that legislation. Here we are, at the Report stage of a Bill that has gone all the way through the House of Commons, has almost completed its passage in your Lordships’ House, and we still have no proper response. When the noble Lord, Lord Coaker, defended, as he did earlier, the integrity and the nature of our Select Committee, I was with him, and not just because, like him, I have particular admiration for the chairs of Select Committees. The honourable Joanna Cherry is no exception in this respect. She is an admirable chair of that committee; she is not a partisan—ask members of the Scottish National Party and they will tell you that she is a very independent-minded lady who has considerable experience as a KC in the law, so chairs are not to be dismissed. These committees of your Lordships’ House should be taken far more seriously. Not to do so is a discourtesy to Parliament and to the kind of arguments that my noble and learned friend has put forward, and it is why, even if these amendments are not voted on today, the principles that underline them should be supported.

[Lord Faulks (Non-Afl)]

My Lords, I promise I will be brief. First, there appears to be agreement that there was not total agreement on the position of international law. Noble Lords will remember the speech of the noble and learned Lord, Lord Hoffman, referring to the article in Policy Exchange. This is not the time to repeat the arguments, one way or another.

It was also agreed that the procedure adopted by the European Court of Human Rights was sub-optimal and there is room for improvement. Improvement may come along the line in due course; we wait to see, and there are some hopeful signs. However, the current position is that it is not a satisfactory procedure.

We then come down to the power. It is important to stress that the Minister has a power, not a duty, which he or she can exercise to ignore the ruling. The Minister does not have to ignore the ruling, and no doubt they will look carefully at the reasons given. Amendment 37 suggests that the Minister will consult the Attorney-General, who I am glad to see sitting in her place beneath the Throne today. I imagine that in a normal course of events, a Minister taking a decision of that gravity would consult the Attorney-General. However, the fact that there is a slender basis for the jurisdiction, that the interim procedure is unsatisfactory, and that there is a power, seem to me to hedge around this provision with appropriate safeguards.

[Lord Anderson of Ipswich (CB)]

My Lords, I support all the amendments in this group and will be sorry if, as I suspect may be the case, none of them is put to the vote.

I spoke in Committee on the status of interim measures of the European Court in international law. I will not repeat any of that now, although I remind the Minister, as I did informally a moment ago, of the exchange we had at the end of that debate, at about 10.30 pm on 19 February. I asked him whether he agreed with me that if a Minister decided not to comply with an interim measure, as Clause 5 permits, this would place the United Kingdom in breach of its international obligations. He gave me no answer—and frankly accepted that he was giving me no answer—but did undertake to write to me. The Minister did tell me a moment ago that such a letter has been sent, but I am afraid that, despite his best efforts, it has not yet reached me. Will he please be kind enough to read the relevant passage when he answers this debate?

The European Court of Human Rights takes one view, which is generally accepted to be binding on contracting states—including our own—by Article 32 of the ECHR. In brief reference to the point raised by the noble Lord, Lord Lilley—I thank him for the courtesy he extended to me earlier in today’s debates—the binding effect of interim measures rulings was clearly accepted in this case by the French Conseil d’Etat, in its judgment of 7 December 2023. I know the noble Lord is very conversant with the French language; if he reads paragraph 5 of that judgment, he will be left in no doubt as to the relevant position.

If, as the noble Lord, Lord Jackson, suggested, the French Government are flouting both the interim measures of the European Court of Human Rights and the judgment of their own highest court, shame on the French Government. Shame on any Government who behave like this. We are used to seeing the Russian Government, the former Government in Poland, behave like this, and we have to make up our mind which camp we are in. That is why it is so important that we understand what the Government’s position is before we vote on the Bill. Is the purpose of Article 5 to permit Ministers to involve this country in breaches of international law, or is it not? I hope that this time, we will have some clarity from the Front Bench.

[Lord Deben (Con)]

My Lords, as the House will know, I tend not to want lawyers to have it all their own way when they are dealing with legal issues, but I rise because it seems to me that this is an occasion to point to the fundamental problem the Bill presents. It asks Britain, which is absolutely dependent on international law, as we found in our debate yesterday, to present a situation which, at its very best, looks like flouting international law. The previous speech, by my fellow Ipswichian, is germane to this. I want to bring it back to this key issue. Those who objected to the European Union and our membership really cannot come to this House and say, “Because the French are doing it, we ought to copy them”. That seems to me to be a very curious position.

This brings us to a very crucial issue about this House. Earlier on, the noble Lord, Lord Coaker, rightly said that the Government have addressed the world to say that whatever we say, they have no intention of changing the Bill. That is unacceptable. It is an insult to the House, and it is constitutionally improper.

However, I say to the noble Lord, Lord Coaker, that the Opposition also have a responsibility in this. We all know that, so far, the Opposition are not prepared to pick one of these amendments, which are about our acceptance of international law, and to press it to the point at which the Government have to give way or lose the Bill. I say to the Opposition that the responsibility of opposition is as great as the responsibility of government. In the hands of the Opposition is the ability to make this Government turn the Bill into one that conforms with international law. If they do not do that, they will have failed in their duty and in the way they treat this House.

As the Opposition may become the Government, this, in my view, undermines their position, because the world knows why they do not want to do it: for electoral reasons. I find that unacceptable in the party I support; I find it just as unacceptable in the party with which I disagree.

[Lord German (LD)]

My Lords, on that last remark, I absolutely agree with the noble Lord, Lord Deben. That is why, of course, we established our position clearly on Second Reading. We did it as a matter of principle and we stand by that principle. We will keep by that principle, and we will fight tooth and nail to ensure that the Bill, as bad as it really is, is put right.

I want to say how much I agree with the noble and learned Lord, Lord Hope. I wish he would push this amendment to a vote, because we would certainly support it. I always like encouraging people to do things they are perhaps slightly resistant to doing. Essentially, this is a matter of great importance to us. We are part of this court. We helped to set it up, and the judges within it are British judges. We know very well that this is at the root of the issue. Yesterday, we were told that it is the backstop—

[Lord Howard of Lympne (Con)]

I agree with the noble and learned Lord, Lord Hope—this is not the time to go back over the arguments we previously had. However, will the noble Lord and the noble Lord, Lord Alton, not accept that the one ground on which they cannot rely in support of their arguments is what Winston Churchill and the founding fathers of the convention said? They specifically considered whether the court should have the right to make an interim ruling, and they decided that it should not have that right.

[Lord German (LD)]

I deal with matters which are within my lifespan, I am afraid. It is certainly the case that the court—at present, the ECHR—operates on the basis of the decisions taken jointly by the range of countries within it. That is where we stand. We are being asked, as the noble Lord, Lord Deben, just said, to give permission to the Government to flout the legislation of which we have been a part, and the court of which we have been a part in making it.

Let us look very briefly at our record. The United Kingdom has always complied with Rule 39 interim measures and has publicly declared the need for other states to comply with them. In 2023, the court received 61 requests to make an emergency intervention against the United Kingdom, only one of which was granted as a genuinely necessary intervention. In 2021, it was the United Kingdom that urged Moscow to comply with one of the court’s Rule 39 orders, demanding the release of the now deceased jailed opposition leader Alexei Navalny—which was absolutely the right thing to do. Last year, another order helped to save the lives of two British fighters in Ukraine who had been taken captive by Russian forces. Those measures are important to us. We stand by them, and giving permission to the Government to ignore them runs counter to the principles under which we operate.

18:00

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak briefly to perhaps the least contentious amendment in this group, Amendment 37, in the name of my noble friend Lord Coaker. It would simply ensure another level of scrutiny and security when deciding whether to comply with an interim measure by ensuring that the Minister must consult with the Attorney-General. It is a very modest and common-sense measure to help ensure that decisions are made with input from across government. The Government must understand that what they are proposing in the Bill distances us from our domestic and international obligations—obligations we expect others to follow, as we have heard many times in this short debate. This House voted on Monday to ensure that we respect domestic and international law, and it is in this spirit that we tabled Amendment 37.

The noble Lord, Lord Deben, admonished us, the Opposition, by saying that we did not want to kill the Bill, in effect, for electoral reasons—that is what he accused us of. It is not for electoral reasons; it is because we recognise the status of this House as an unelected Chamber relative to the House of Commons. We expect to be in government in a few months’ time and we expect the Conservative Party to observe the same conventions that we are observing now—and we are quite unapologetic about that.

[Lord Deben (Con)]

I point out that the noble Lord did not quote me correctly. I did not say that he should kill the Bill; I said that the Opposition were in a position to insist that the Government change the Bill so that it is in accordance with international law. That would not kill the Bill. I do not want to kill it; I want to improve it. The point that I make to the noble Lord is simply this: if he is saying that there is no situation in which the constitution of this country cannot be upheld by this House, he is saying something entirely novel. The fact is that this House has always seen itself as being the protector of the constitution—and what more important protection is there than to insist that the Government obey international law?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as I said, Amendment 37 puts the ball in the court of the Attorney-General; it is for her to make the decision and recommendation to the Government about the propriety of the interim measures. This is the most modest of the amendments in this group—and I do not know whether other noble Lords will be pressing their amendments.

[Lord Stewart of Dirleton (Con)]

My Lords, I am again grateful to all noble Lords who have participated in this debate, opened by the noble and learned Lord, Lord Hope of Craighead. He acknowledged that we had enjoyed a full debate on the topic in Committee, in which conflicting views on certain essential matters emerged.

The noble Lord, Lord Faulks, repeated the view he expressed earlier that the practice in relation to the Rule 39 interim indications of the European Court of Human Rights is suboptimal. But he also indicated that there are hopes that the procedure might shortly be improved.

Amendment 36 tabled by the noble and learned Lord, Lord Hope of Craighead, would allow a court or tribunal to have regard to a Rule 39 interim measure when considering whether to issue interim relief. But there is an equivalent domestic remedy in Clause 4, which means that there should be no need for the Strasbourg court to intervene. The decisions of the United Kingdom’s domestic courts to issue interim relief should be made only when they have reached their own conclusion about whether a person is at risk of “serious and irreversible harm”, and not when the European Court of Human Rights has indicated an interim measure.

“Serious and irreversible harm” is broadly the same test that the Strasbourg court applies; there is no reason why our domestic courts cannot be relied on to reach their own decision, rather than having regard to another court that may not be in possession of the most up to date information in the case. We have been clear that one of the primary purposes of the Bill is to reduce the number of legal challenges that seek to frustrate or delay relocations to Rwanda. We also need to create a deterrent and make it clear that those arriving via small boats will not be able to stay.

My noble friend Lord Jackson of Peterborough made a number of important points on judicial activism and the contrast between the rule of law and the rule of lawyers. Ultimately, if I may summarise his position, it comes down to an assertation of the accountability, of which we have spoken, introduced into our counsels by my noble friend Lord Howard of Lympne at an early stage. That is an important consideration for the House to bear in mind.

The noble Lord, Lord Alton of Liverpool, referenced Churchill. Again, if I may put words into my noble friend Lord Jackson of Peterborough’s mouth, I suppose that my noble friend’s point is that these times are not Churchill’s times. He spoke of the geopolitical challenge and the nature of the difficulties that illegal migration is causing to this country.

I note that the noble Baroness, Lady Jones of Moulsecoomb, is not in her place. None the less—

[Noble Lords]

Oh!

[Lord Stewart of Dirleton (Con)]

Oh, she is. Well, while she did not press the point again, there was none the less a Green-wedge approach, which included my noble friend Lord Deben, attacking the stance of the Opposition Front Bench. Noble Lords opposite are old enough and ugly enough to defend themselves, and the noble Lord, Lord Ponsonby, did so. On the aspects of my noble friend’s submission that attacked the Government, I say to him that his point is misguided. Of course, the French Government are not the European Union; they are acting in this context as a sovereign country and not as a member of the EU.

As I said, “serious and irreversible harm” is broadly the same test that the Supreme Court applies. The noble and learned Lord, Lord Hope of Craighead, went on to raise a matter in relation to the Constitutional Reform Act. This Bill takes the same approach adopted in Section 55 of the Illegal Migration Act; the Constitutional Reform Act is not referenced in the Illegal Migration Act. Under both provisions, it is for a Minister of the Crown alone, and not a court, to decide whether to comply with an interim measure. That reflects the orthodox position that international obligations act on the Government, rather than having effect on the domestic plane. It does not constitute an attack on judicial independence. There is no implied reform of Section 3 of the 2005 Act, which makes provision for the upholding of judicial independence. This provision remains intact and it is not necessary for legislation that does not bind judicial decision-making to spell that out. The judiciary’s independence is a fundamental principle of our constitution, as I think all noble Lords across the House will agree. The Government are committed to enabling judicial decisions to be made independently and impartially, whether domestically or in relevant international courts and tribunals.

I apologise to the noble Lord, Lord Anderson of Ipswich, and gratefully acknowledge his courtesy in approaching me to chase up the correspondence to which he referred the House. I apologise that the Home Office carrier pigeon failed to reach Ipswich before today. I have a copy of the letter that he sought and, with his leave, and that of the House, I will read the relevant provision.

[Lord Alton of Liverpool (CB)]

My Lords, before the Minister leaves that point about carrier pigeons, can he say when the response from the Government to the Joint Committee’s report on this Bill will be forthcoming, given that on Monday we were told that it would be here for the proceedings today?

[Lord Stewart of Dirleton (Con)]

My Lords, the answer to the noble Lord’s question is “imminently”.

Returning to the correspondence with the noble Lord, Lord Anderson, I quote from that letter that bears my signature and which I trust that he will see in due course. He asked whether the Government agree that if, in compliance with Clause 5, a Minister decides not to comply with an interim measure, that would place the United Kingdom in breach of its international obligations. Clause 5 provides that it is for a Minister only to decide whether the United Kingdom will comply with an interim measure indicated by the European Court of Human Rights in proceedings relating to the intended removal of a person to the Republic of Rwanda under, or purportedly under, a provision of or made under the Immigration Acts. The Bill is in line with international law. The Government take their international obligations, including under the ECHR, very seriously, and there is nothing in the clause that requires the United Kingdom to breach its international obligations. In any event, it is not correct that a failure to comply with interim measures automatically involves a breach of international law. There are circumstances where non-compliance with an interim measure is not in breach of international law. There follows a list of further addressees whom I hope will receive the letter presently.

[Lord Anderson of Ipswich (CB)]

I am very grateful to the Minister. I recall that, of the Grand Chamber in Mamatkulov, 13 of the 14 judges in the majority thought that there were no circumstances in which a failure to comply with interim measures could be in accordance with international law. The 14th expressed the view that the Minister has just expressed. Can the Minister indicate in what cases it is lawful under international law not to comply with interim measures issued by the court?

[Lord Stewart of Dirleton (Con)]

It would be in circumstances where compliance is not possible.

Turning to Amendment 37 in the name of the noble Lord, Lord Coaker—

[Lord Hannay of Chiswick (CB)]

My Lords, the text that the Minister read out placed a great deal of importance on the phrase “does not require” a Minister to do something. However, it does empower a Minister to do it. Would what it empowers the Minister to do not be in breach of our international obligations?

[Lord Stewart of Dirleton (Con)]

My Lords, I now turn to Amendment 37 in the name of the noble Lord, Lord Coaker.

[Lord Anderson of Ipswich (CB)]

My Lords, I do not wish to prolong things, but so we can be completely clear, is the Minister accepting that in circumstances where the Strasbourg court has made an order and it is possible for the United Kingdom to comply with that order, then the United Kingdom will be in breach of its obligations if the Minister decides not to comply with it? That is what I take from what he has just said.

[Lord Stewart of Dirleton (Con)]

My Lords, as I said, the Bill is in line with international law. It is not correct that a failure to comply with interim measures automatically involves a breach of international law.

Turning to Amendment 37 in the name of the noble Lord, Lord Coaker, in making a decision about whether to comply with a Rule 39 interim measure, the Government expect that the Minister will carefully consider what is required to comply with the United Kingdom’s international obligations. That decision ultimately will be dependent on the individual facts of each case. As I set out in Committee, nothing within Clause 5 prevents Ministers from consulting Cabinet colleagues or seeking advice where appropriate. Given the importance of this decision, we would expect a Minister to do so. However, this is a decision for Ministers. Amendment 37, which introduces a requirement to consult the Attorney-General, is therefore not necessary.

Furthermore, specifying in a Bill that the Attorney-General must be consulted before a decision is made undermines the convention that relates to the law officers. This is a long-standing convention whereby advice received from the law officers is not disclosed outside government. It is also the convention not to disclose whether the opinion of the law officers has been sought.

It is essential that we take bold steps to stop illegal migration and to prevent removal being frustrated by a cycle of legal challenges and rulings by the court. Clause 5 puts beyond doubt that the decision on whether to comply with a Rule 39 interim measure is for a Minister of the Crown. Given the importance of this decision, we are clear in the Bill that this decision must be taken personally by a Minister of the Crown. The Minister will be accountable—that word again, which I make no apology for stressing—to Parliament for the exercise of that personal discretion. We have made clear on several occasions, including in my rehearsal of the text to the noble Lord, Lord Anderson of Ipswich, that the Government take their international obligations very seriously. There is nothing in this clause that requires the Government to act in breach of international law.

18:15

[Lord Falconer of Thoroton (Lab)]

Can we then take it from what the Minister has said that, if the Government, after taking appropriate legal advice that they choose to take, take the view that not to comply with a Rule 39 order would in the circumstances then prevailing put the Government in breach of international law, the Government would then comply with that order?

[Lord Stewart of Dirleton (Con)]

The point is that Rule 39 interim measures are not final judgments of the European Court of Human Rights, which do bind the United Kingdom. They are not binding on the United Kingdom domestic courts. When deciding whether to comply with an interim measure indicated by the Strasbourg court, due consideration will be given to the facts in the individual case and careful consideration of the United Kingdom’s international obligations.

As we heard from the noble and learned Lord, Lord Hope of Craighead, in opening, Amendment 38, tabled by the noble Baroness, Lady Chakrabarti, would remove Clause 5 and disapply Section 55 of the Illegal Migration Act. This would lead to a conflict between the duty to remove, established by the Illegal Migration Act, and the effect of an interim measure issued by the Strasbourg court, which in turn would create uncertainty as to which would prevail. Clause 4 includes a specific provision enabling the United Kingdom courts to grant an interim remedy preventing removal to Rwanda where they are satisfied that a person would face real, imminent and foreseeable risk of serious and irreversible harm. We have designed these measures to ensure that our courts are not out of step with the Strasbourg court.

As I have said already, there is no reason why the United Kingdom courts, which we would expect to be in possession of all the evidence and facts in the case when making such a decision, cannot be relied upon to reach their own decision rather than having regard to another court which may not have the most up-to-date information. I acknowledge that the noble and learned Lord, Lord Hope, is not pressing his amendment, and I ask the noble Lord, Lord Coaker, not to move his amendment.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to noble Lords from all sides of the House, whatever their views may have been, for contributing to this debate. The result has been a much more interesting discussion than I anticipated in my rather brief and somewhat lame introduction to my amendment.

I shall make only one point. My amendment is concerned with the position of our own courts. As Clause 5(3) stands, it prohibits our courts from having any regard to an interim measure when considering an application which relates to a decision to remove someone to Rwanda. The noble Lord, Lord Faulks, is quite right when he says that the current procedures under Rule 39 are suboptimal. There are various defects which we would not accept in our courts, but that does not apply to our procedures. They are perfectly open, proper and thorough. Our judges would be able to take on board all the points that have been made in the course of the discussion and weigh up one way or another whether this measure from the European Court of Human Rights should be given effect to. I am not asking that they should be bound to give effect to it but that they should be permitted to do so. It seems to be a perfectly reasonable thing to ask our courts to do.

I have considered whether I should press this to a vote, but we have to ration ourselves at this stage of our proceedings and have regard to what happens next. If this goes down to the House of Commons, no doubt it will bounce back again and so on. We have to be careful how far we press things to a Division; I would have liked to do so, but at some points one has to exercise self-restraint, which I am doing.

[Lord Anderson of Ipswich (CB)]

Does the noble and learned Lord take comfort, as I do, and perhaps some people watching these proceedings might do, by recalling that on Monday we agreed to an amendment that requires this Bill—this Act, as it will become—to comply with international law when it is implemented?

[Lord Hope of Craighead (CB)]

That is a perfectly fair point to make; there are other amendments we have passed that carry us a long way indeed, whereas this one is rather more particular. For various reasons, without elaborating further, I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

Amendments 37 and 38 not moved.

Amendment 39 not moved.

Amendment 40

Moved by

[Lord Coaker]

40: After Clause 5, insert the following new Clause—
“Number of individuals relocated to RwandaWithin 60 days of this Act receiving Royal Assent the Secretary of State must provide a written report to Parliament setting out—(a) the number of individuals relocated under the Rwanda Treaty,(b) the current location and immigration status of any individuals relocated under the Rwanda Treaty.”Member’s explanatory statement
This new Clause requires the Secretary to report to Parliament on the operation of the Rwanda Treaty.

[Lord Coaker (Lab)]

My Lords, I feel a bit of an impostor with this set of amendments, because I think your Lordships might find it a bit down to earth to deal with some facts. I have been very interested in my approach as a pupil barrister, trying to overcome and understand everything that was going on—I have done my best. I apologise to everyone because my Amendments 40 and 41 are trying to get some facts from the Government about how the Rwanda treaty will operate or not. In Committee the Minister failed to give us many of the various statistics, so I wonder whether we are now in a position where we can get some of the facts around this. The deliberations we have had have been so important for months during which, it seems to me, the Government have become obsessed with Rwanda. Clearly, with respect to various comments that have been made and the point made by the noble and learned Lord, Lord Hope, we will have to see, once the Commons has considered the Bill, what we may wish to consider again in your Lordships’ House.

I point out that in yesterday’s Daily Telegraph, the Home Secretary wrote that he would consider amendments from your Lordships’ House, so I thank the noble and learned Lord, Lord Stewart, and the noble Lord, Lord Sharpe, because they got a massive concession from the Home Secretary. As the noble Lord, Lord Deben, pointed out, that is not really sufficient but it is a change from when the Home Secretary was making a blanket statement that under no circumstances would he consider anything that your Lordships were considering. At least we have gone from a blanket refusal to consider anything to a statement in the Daily Telegraph—I presume it was well sourced since it was a quote; that is not always the case but often is—that the Home Secretary would consider it.

The noble Lord, Lord Deben, said that this is not about killing the Bill and, although we may disagree over the extent to which we push this, I think the constitutional proprieties of this place needs restating again. As much as we accept that, as His Majesty’s Opposition, we will not block the Bill, the constitutional quid pro quo is that the Government in the House of Commons, through their elected mandate, accept that we have a right to demand that they think again and revise legislation in view of what is said here. We are not just a talking shop or a Chamber that says what we think for the fun of it: we make serious points about serious legislation that impacts on millions of people in this country and hundreds of millions across the word. A Government should respect that and listen to what has been said, even if, in the end, they reject much of it.

Every Government I have ever been part of or known, whether Conservative, Labour or coalition, have always considered what the House of Lords has said. At times they have said that although we cannot agree with that particular amendment, we will come forward with one of our own that seeks to at least address some of the problems that the Opposition and others have brought forward. That is no doubt the frustration that the noble Baroness, Lady Jones, was articulating to me, and what the noble Lord, Lord Deben, was doing in quite rightly challenging me. We are seeking to challenge the Government to respect the constitutional position of this House. They play with the constitution at their peril; without a written constitution, those unwritten rules and conventions are crucial. I am sorry to spend a couple of minutes repeating that argument from the Dispatch Box—I hope the Prime Minister and others will hear it—but it is of fundamental importance. Without that, people ask what the point is and say that maybe we should take things further than we should.

[Lord Alton of Liverpool (CB)]

Before the noble Lord leaves that point, will he also underline, yet again, the importance, within our constitutional proprieties and parliamentary process, of the place of Select Committees? Neither the Constitution Committee nor the Joint Committee on Human Rights has had a response on this Bill. How on earth can we consider legislation to any serious degree if, when committees established by Parliament look in detail at legislation, the Government then rush the legislation through pell-mell without any consideration to what those committees have found?

[Lord Coaker (Lab)]

The noble Lord, Lord Alton, makes the point for himself, and I absolutely support what he has just said.

[Lord Clarke of Nottingham (Con)]

The noble Lord is of course quite right that if there is a conflict between the two Houses of Parliament, the elected House must prevail. But there is a power, rarely invoked, for the Lords to block a Bill in a single Parliament and a process under the Parliament Act whereby the elected Government can repeat their legislation, whereupon, quite rightly, we have to concede. I share the suspicion of the noble Lord, Lord Deben, that the Labour Party—like every other party contemplating power, and no doubt my own in the past—is hesitant to see the influence of the House of Lords grow at this stage, in case it starts exercising its influence on the successor Government.

If it is announced that we are not going to use our full powers, and if the Government know that they are not remotely going to be expected to rely on the Parliament Act, they are going to listen less to amendments to a Bill of this kind that is regarded as being of electoral importance for some sections of the population by both political parties. Given that we have just been discussing the rules-based international order, our obligations under international law and parliamentary sovereignty being used to sweep away what used to be regarded as our approach to international law, do the Opposition rule out altogether the idea of using the full powers of this House if the Government simply fail to listen at all, and actually blocking the Bill?

[Lord Coaker (Lab)]

We have said quite clearly all along that we will not block the Bill. I accept the point made by the noble Lord, Lord Clarke, that there have been occasions in the past—he probably remembers better than I do—when the Parliament Act has been used. But with respect to this piece of legislation, we have said we will not block the Bill. I say to the Government that the constitutional quid pro quo for that is that they do not turn around, carte blanche, and say they will simply ignore what the House of Lords says.

I challenge the Government. They have challenged me and my party, our Leader in the Lords and our Chief Whip, constantly in the papers. We have been told that the Labour Lords, even though we do not have a majority, are going to block the Bill—that is the accusation—even though we have been clear time after time. Even on Monday, when we debated the Rwanda Bill in this Chamber, we had an article from the Home Secretary saying that those who sought to block the Bill were encouraging right-wing extremists. How is that the action of a responsible Government? How is that the action of a Government respecting the constitutional conventions of our country?

This is not just challenging His Majesty’s Opposition in the House of Lords; it is challenging His Majesty’s Government to respect the conventions and constitution of this country. That is what I object to. Why are we arguing about what His Majesty’s Opposition are doing all the time? Why are we not demanding that the Government, the Home Secretary, the Prime Minister and the Foreign Secretary respect and obey the constitutional proprieties and conventions of the country? It is they who are driving a coach and horses through it. It is they who are challenging us all the time—the unelected Lords, the people who have no right to say to the elected Parliament, “You’ve got this wrong; you need to think again”—and just dismissing us as a set of trendy, left-wing, out-of-touch lawyers defying the will of the people, when I think every noble Lord in this House is trying to stand up for this House of Lords and say that even though there are differences in this House, there is a majority who think this is wrong.

18:30

Where is the challenge to the Government to respect the constitution of this country? Where is the challenge to the Prime Minister, so that instead of decrying this House, he might argue his case and say, “There may be a point here; there may be something that should be revised; there may something that should be changed; there may something that should be added to this”? Where is the demand on the Prime Minister to respect the constitution of this country? I am sorry to go on about it, but we play with the constitutional conventions of our country at our peril.

I take what the noble Lord, Lord Clarke, says about the Parliament Act. We have said that we will not block the Bill. I understand the point the noble Lord is making —he is basically saying that because the Government know that we are not going to block the Bill they will just do what they want. Of course, that is the danger—perhaps, the reality—but I am saying that we have said we will not block the Bill, but we demand of His Majesty’s Government that they respect the proper role of this House of Lords, and that they respect our right to say that we believe that certain things in the Bill are wrong. It may be the rule of law, or the compliance with international law, or other things being moved—but, if the Government simply turn around and say that, it will prove not only what I think party political-wise—that the Government are at the fag end of their existence—but will show that they are morally bankrupt as well. I ask the Minister to convey that view to the Government.

[Noble Lords]

Oh!

[Lord Coaker (Lab)]

I feel like just moving Amendments 40 and 41 and sitting down. I probably should.

These amendments ask the Government to provide some facts with respect to the Bill. We believe that the Bill—as well as the various debates we have had about the rule of law, compliance with international law and so on—is unworkable. We do not think it will work. We think that, in the end, the real number the Government want is one; one plane. The symbolism of one plane taking off is what they want.

Let us just try some facts—how many thousands of people are waiting, under the auspices of the Illegal Migration Act, to be deported somewhere? How many people are the Government going to send to Rwanda? If it is over 300 by the way, it costs an extra £120 million. Where are all these people? We read that the Government have lost a lot of them; they do not know where they are. Can the Government explain why they overspent by £4.5 billion and why the Home Secretary had to ask for an emergency £2.6 billion? Can the Government explain why they believe there is a deterrent, when the Permanent Secretary had to receive a ministerial direction to carry on because he did not believe there was any evidence that there was a deterrent? Yet the Government continued to say that. Instead of a Safety of Rwanda Bill overturning a finding of fact by the Supreme Court, perhaps we could have a government amendment which says, “You have to believe that it is a deterrent”.

Number after number is not provided by the Government. Amendment 40 would require a report on how the Rwanda treaty will operate, and Amendment 41 makes a series of asks of the Government. I will press Amendment 41 to a Division, because I want to know how many asylum seekers there are with respect to the Illegal Migration Act? Where are they? How many are the Government sending to Rwanda? What is the timeline for that? Where is their evidence about deterrence? Why should we believe, without any figures, the Government simply asserting that this will act as a deterrent, and that it will work?

I go back to the point I made at the beginning, which was the brunt of all my remarks. Whatever amendments are passed, be it Amendment 41 or some of those which came earlier or will come later—for example, Amendments 42 and 44—they deserve to be properly considered by the Government, and this place given its due respect.

[Lord Carlile of Berriew (CB)]

Before the noble Lord sits down—and I hesitate to interrupt what has been a wonderfully entertaining and accurate speech—would he like to remind the Minister that, according to the figures issued by the National Audit Office just two days ago, the total cost of sending 300 people to Rwanda would be £569,262,200, and the average cost per person would be £1.9 million? Does he agree that one of the responsibilities of this House is to make the Government literally accountable for the proper and proportionate spending of public money?

[Lord Coaker (Lab)]

I thank the noble Lord, Lord Carlile, for reminding me that I have a copy of that National Audit Office report. He is right—the cost is astronomical, and that is before anybody has been sent. The cost will go up if anybody is sent. The Government have not come forward with those figures; the National Audit Office had to find them out. We have no idea about the number of asylum seekers that the Illegal Migration Act applies to, and we have no idea what the Government will do or how many they expect to send to Rwanda.

It is almost unbelievable that we have spent months debating a Bill that not only brings into question all sorts of constitutional principles that we have debated—and no doubt will come back to—but is unworkable. That is the whole point of my Amendment 41.

[Lord Hodgson of Astley Abbotts (Con)]

I too enjoyed the vintage, bravura performance from the noble Lord, Lord Coaker, but let me move from the high constitutional principle to the practical implication of what he is suggesting in these two amendments. Will they do much good? Not really. Will they do much harm? Not really. They are almost certainly duplicative of other statistics being collected elsewhere.

Where amendments add to a Bill without achieving any value, that is a mistake. We want to keep our legislation—our Acts of Parliament—short, pointed and uncluttered. We do not want to put more baubles on the Christmas tree, and these are two particular baubles.

I say with respect to the noble Lord that he has forgotten about the real world. When this Bill becomes an Act, it will be watched like a hawk by every single Member of your Lordships’ House and the other place. The noble Baroness, Lady Chakrabarti, is not in her place, but she will be putting down a Parliamentary Question about it every day. The idea that, somehow, the Government will slide things through, and that we require these two amendments to make the Government honest is fanciful.

Everybody is going to be watching what happens. Is it going to work? Some Members of your Lordships’ House think it will not, and some think it will, but we do not need the Bill extended with more clauses when all the information that the noble Lord is seeking by these amendments will be available anyway, and certainly will be discovered by Parliamentary Questions, Statements, and all other methods of inquiry. I beg to move.

[Lord German (LD)]

My Lords, if there is no other willing speaker, I say to the House that, set alongside breaching international obligations, outing the jurisdiction of the courts, breaching human rights, and being morally unsupportable, these amendments also show the Bill as unworkable and extremely costly to the taxpayer.

I say to the noble Lord, Lord Hodgson, that if we need to know how many, what the consequence will be and how much it will cost, now is the time that we need to know. There is no point finding out after the Bill. It has been extremely difficult to get hold of accurate information on the costs, and I am grateful to the NAO, because it has at least given the published figures some context—but the numbers are tricky.

The trouble with the information we have, of course, is that the Illegal Migration Act itself has created a huge number of people—thousands—who are now in limbo and whose cases have been left because of the way that that Act was constructed. They are unable to have their asylum cases considered, unable to get on with their lives, and unable to work and use their skills and talents, and instead have to live in substandard conditions with no clarity on their fate.

As at December 2023, there are two sets of figures derived from the published figures: there are either 100,000 people awaiting an initial asylum decision, or 128,000 if you include dependants. Some 56% of those made their applications on or after 7 March 2023, when the Illegal Migration Bill was introduced to Parliament. A significant number of these claims will therefore have been deemed inadmissible under that Act, which means their applications are making no progress. Could the Minister tell us how many people are in that limbo at the moment? Given that we understand that the estimates for numbers that can be removed to Rwanda range from 100 to 150 to a couple of hundred, we need a proper policy explanation from the Government as to how they will deal with these asylum seekers. If you divide the number that is possible into the total number of people waiting, this could go on for years and years, and we will still have these people in the country. The Government cannot bury their heads in the sand. These are vulnerable individuals, and we have a responsibility to treat them well. It is just not acceptable to hold all these people in limbo.

On costs, I am grateful to the noble Lord, Lord Carlile, because I have the figures that the National Audit Office has produced. In detail, there is money to be paid going on, and there is money already being paid, but the essential conclusion of the National Audit Office—I do not think it has a political interest in this, though it certainly has a financial interest—is that the cost will be between £1.9 million and £2 million per person. Add that to the list: we have people in limbo, extraordinary costs, and something in the Bill that is basically inhumane. I therefore support these amendments, because they take us some direction to finding out the real truth.

[Lord Deben (Con)]

My Lords, I support the noble Lord, Lord Hodgson, in his comments. The issues we should be concerned about are the ones that we have just been talking about. They are the real issues—the ones that really matter. We can all make party-political and cross-party references to the amount of money, and I must say that this is not the way I would spend £1.9 million on an individual. I am not known for total support for the Government on everything, but I do not think we really need to go into this. We know a great deal about it. The Government will not improve or lessen the effect of this Bill by telling us these figures. This is something I am perfectly prepared not to support, because I do not think it is important enough, and I do not want this House to be led astray from the key issues.

Throughout this debate, I have said that the thing I am interested in, because of my concern around climate change, is that I want us to clearly support international law. We have no hope of saving the planet, let alone anything else, unless we support international law. Therefore, if this is put to a vote, I shall support the Government, because this is an unnecessary addition, and I want the Government to concentrate on the key issue—that they are undermining our international reputation in a way that is unacceptable, damaging and dangerous. The fact that the Government are also spending a lot of money which does not look as if it will be useful is so much more minor than that, but I will support it.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Lord, Lord Coaker, for introducing these amendments in such fine style. I thank him for acknowledging the Home Secretary’s remarks, but I am sure he would acknowledge that I, my noble and learned friend, and my noble friends on the Front Bench agree with him about respecting the constitutional importance of your Lordships’ House. In answer to the question about the responses to those reports, they are imminent—I promise to fire up the much-vaunted carrier pigeon on that one.

18:45

As my noble friends Lord Hodgson and Lord Deben have noted, it is not necessary to report the number of removals to Parliament in the manner proposed. That is not to say that we do not intend to be completely transparent about the numbers, but rather that we do not consider an obligation to report to Parliament on operational matters to be the appropriate means of achieving this. Once the partnership is operationalised and flights commence, as soon as practicable following Royal Assent removal data will be published online in the usual manner as part of the quarterly immigration statistics. This is standard practice.

We have always been clear that the scheme is uncapped. Resources are being provided under the partnership to develop the capacity of the Rwandan asylum system—we have already provided £20 million upfront to support set-up costs, for example. We anticipate the numbers being relocated ramping up quickly once the partnership starts to operate, in line with Rwanda’s growing capacity.

On the second aspect of the noble Lord’s amendment, it would be wholly inappropriate to share personal data pertaining to the locations of relocated individuals publicly in this manner. The treaty provides that no one relocated will be removed from Rwanda, except in very limited circumstances, to the UK. The UK and Rwanda will co-operate to ensure removal contrary to this obligation does not occur, which may include systems for locating and monitoring the locations of relocated individuals. However, this would be with their express consent only and would not be for wider sharing.

This is in addition to the robust monitoring mechanisms already in place via the monitoring committee to ensure the operation, the findings of which will be reported in line with the agreed procedures set out in the monitoring committee’s terms of reference and enhanced monitoring plan, which I set out in some detail earlier in the week and which are published online.

The Government have always been clear that relocated individuals will not be detained. While those in genuine need of safety and protection will be provided with it in Rwanda, should anyone relocated wish to leave Rwanda voluntarily, they are free to do so.

I turn to Amendment 41, which seeks to secure a commitment from the Government to set out the process for how we will remove to Rwanda those who meet the four conditions of Section 2 of the Illegal Migration Act and who have arrived in the UK since 20 July 2023. The Government are considering plans for delivery of the provisions of the Illegal Migration Act in the light of the Supreme Court judgment. The amendment seeks information normally used only for internal government planning purposes; this is not something that is normally shared, nor is it appropriate to legislate for such a commitment. The Government’s primary objective is ensuring flights can relocate people to Rwanda. Once commenced, provisions in the Illegal Migration Act will support this objective.

Furthermore, I can confirm that, where asylum claims are declared inadmissible for those who are subject to the duty to remove, the Government will provide support and accommodation in line with Section 9 of the Illegal Migration Act. I should also make it clear that asylum claims not admitted to the UK asylum system are not considered to be awaiting a substantive asylum decision.

The noble Lord, Lord Coaker, asked for numbers, and I have some that I can share, including the number of asylum applications made since 20 July and before December 2023, which is known as the IMA flow. I should state that these are cases and do not necessarily equal people, because there are cases where multiple people are represented and cases where individuals have lodged multiple cases. The number of cases in that particular cohort is approximately 33,000. For asylum applications made on 7 March 2023 and before 21 July 2023, it is a similar number, at about 22,000. That is the most precise I can be.

The noble Lord, Lord Coaker, asked about the overspend at the Home Office. As has been discussed many times before, that is the cost of bearing the current asylum system, which, as noble Lords will be aware, is costing us £8 million a day. As for asking for evidence of deterrence, deterrence is on the face of the Bill. When the deterrent effect works, this will represent good value, because that £8 million a day will cease to be such a factor.

We recognise the importance of having clear and coherent datasets. I hope I have been able to provide some comfort to the noble Lord, Lord Coaker, and that he does not feel the need to press his amendment.

[Lord Coaker (Lab)]

My Lords, I do not feel the need to press Amendment 40, but I will test the opinion of the House on Amendment 41. The only reason why we have any figures at all is that amendment. This Parliament deserves to know the figures under which the Government are operating. As for deterrence, that is just an assertion by the Minister against the advice of his Permanent Secretary. With that, I beg leave to withdraw the amendment.

Amendment 40 withdrawn.

Amendment 41

Moved by

[Lord Coaker]

41: After Clause 5, insert the following new Clause—
“Removals to Rwanda under the Illegal Migration Act 2023Within 60 days of the day on which this Act is passed, the Secretary of State must lay before Parliament a statement referring to all individuals whose asylum claims have been deemed inadmissible since the granting of Royal Assent to the Illegal Migration Act 2023, confirming—(a) the number of such individuals due to be removed to the Republic of Rwanda under the Rwanda Treaty,(b) the timetable for these removals, and(c) the arrangements in place for any such individuals not due to be removed to the Republic of Rwanda during the time period set out in the Rwanda Treaty.”Member’s explanatory statement
This new Clause requires the publication of a timetable for the Government’s plans to remove asylum cases accrued under the provisions of the Illegal Migration Act 2023 to Rwanda.

[Lord Coaker (Lab)]

I wish to test the opinion of the House.

18:50

Division 3

Ayes: 228

---

Labour: 121
Liberal Democrat: 66
Crossbench: 34
Non-affiliated: 5
Green Party: 1
Plaid Cymru: 1

Noes: 184

---

Conservative: 164
Crossbench: 11
Non-affiliated: 4
Democratic Unionist Party: 3
Ulster Unionist Party: 1
Bishops: 1

19:01

Amendment 42

Moved by

[Baroness Butler-Sloss]

42: After Clause 5, insert the following new Clause—
“Removal of victims of modern slavery and human trafficking(1) A person with a positive reasonable grounds decision from the National Referral Mechanism stating that they may be a victim of modern slavery and human trafficking must not be removed from the United Kingdom on the basis of the Rwanda Treaty until a conclusive grounds decision has been made.(2) A person with a positive conclusive grounds decision from the National Referral Mechanism that they are a victim of modern slavery and human trafficking must not be removed from the United Kingdom on the basis of the Rwanda Treaty without a decision-maker considering whether such removal would negatively affect the physical health, mental health or safety of that person, including in particular the risk of re-trafficking.(3) If the decision-maker makes a finding that any of the factors in subsection (2) apply to that person they must not be removed from the United Kingdom under the Rwanda Treaty without their consent.”Member’s explanatory statement
This amendment is intended to identify and protect victims of modern slavery and human trafficking from being removed to Rwanda without their consent.

[Baroness Butler-Sloss (CB)]

My Lords, I spoke to this amendment on Monday. I should like to test the opinion of the House.

19:02

Division 4

Ayes: 246

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Labour: 119
Liberal Democrat: 67
Crossbench: 44
Democratic Unionist Party: 4
Non-affiliated: 4
Bishops: 3
Conservative: 3
Green Party: 1
Plaid Cymru: 1

Noes: 171

---

Conservative: 160
Crossbench: 7
Non-affiliated: 3
Ulster Unionist Party: 1

19:13

Amendment 43 not moved.

Amendment 44

Moved by

[Lord Browne of Ladyton]

44: After Clause 5, insert the following new Clause—
“Exemption for agents, allies and employees of the UK Overseas(1) Notwithstanding the Nationality and Borders Act 2022, the Illegal Migration Act 2023, any earlier Immigration Acts and the other provisions of this Act, the following categories of person may not be removed to the Republic of Rwanda—(a) agents or allies who have supported His Majesty’s armed forces overseas in an exposed or meaningful manner that now affects their claim for protection;(b) persons who have been employed by or indirectly contracted to provide services to the UK Government in an exposed or meaningful manner that now affects their claim for protection;(c) the partners and dependent family members of persons referred to in (a) or (b) above;(d) persons who were the partners or family members of persons referred to in (a) or (b) above in a manner that now affects their claim for protection.(2) The exemption in (1) above includes but is not limited to persons eligible for entry to the UK under the Afghan Relocations and Assistance Policy (“ARAP”) and Afghan Citizens Resettlement Scheme (“ACRS”).”Member's explanatory statement
This new clause would exempt people who have put themselves in harm’s way in support of His Majesty’s Armed Forces or otherwise via working with or for the UK Government overseas. It further exempts their partners and dependent family from removal to Rwanda.

[Lord Browne of Ladyton (Lab)]

My Lords, I wish to test the opinion of the House. In the interests of being concise, I draw on the words of one of the most concise and persuasive speakers in your Lordships’ House: my friend the noble and gallant Lord, Lord Stirrup, who said when debated this amendment on Monday:

“That really is the question before your Lordships: would the harm done to the UK by not agreeing this amendment outweigh the impact that agreeing it would have on the Government’s objective of ceasing illegal immigration? The answer, it seems to me, is an overwhelming yes, and therefore I believe we should agree the amendment … My proposition to your Lordships is therefore this: let us pass the amendment and send the issue back to the other place and let us then see what importance it attaches to the safety of those who have hazarded their security and their very lives in support of global Britain’s overseas endeavours.”—[Official Report, 4/3/24; col. 1411.]


I beg to move.

19:15

Division 5

Ayes: 244

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Labour: 119
Liberal Democrat: 66
Crossbench: 42
Non-affiliated: 5
Democratic Unionist Party: 4
Bishops: 3
Conservative: 3
Green Party: 1
Plaid Cymru: 1

Noes: 160

---

Conservative: 155
Non-affiliated: 3
Ulster Unionist Party: 1
Crossbench: 1

19:26

Clause 8: Extent

Amendment 44ZA

Moved by

[Lord Dodds of Duncairn]

44ZA: Clause 8, page 6, line 24, at end insert—
“(1A) The provisions of this Act have effect in Northern Ireland, notwithstanding section 7A of the European Union (Withdrawal) Act 2018 (General implementation of remainder of withdrawal agreement).”

[Lord Dodds of Duncairn (DUP)]

My Lords, this amendment seeks to put beyond doubt what the Government claim to be the case—so they should have no difficulty accepting it or bringing forward an amendment of their own with the same purpose and effect.

The Government assert that Article 2 of the Northern Ireland protocol or Windsor Framework is not engaged in regard to immigration and therefore can have no application to the Bill before us. Their argument, however, has been blown out of the water on a number of occasions recently in the High Court of Northern Ireland. There should be little surprise at that, given the supremacy of Article 2 of the Windsor Framework and EU law over any domestic British law by virtue of Section 7A of the European Union (Withdrawal) Act 2018. A number of court cases in recent weeks have confirmed that in the High Court in Belfast.

First, in the application for judicial review in the Angesom case on 18 October, Mr Justice Colton ruled that Article 2 of the Windsor Framework is applicable and relevant to immigration cases, and that EU law and the EU Charter of Fundamental Rights continue to apply.

Secondly, in the case of application JR 295 for leave for judicial review concerning the Illegal Migration Act, Mr Justice Humphreys stated in his judgment of 12 February, in paragraph 43:

“It is clearly arguable that this applicant enjoys the protection of Article 2(1) of the Windsor Framework and can seek to rely on the rights enshrined in the various EU Directives, Regulations and the Charter in order to challenge the provisions of the IMA”.


He went on to say that this was entirely consistent with the granting of leave to the Northern Ireland Human Rights Commission, which is bringing a parallel challenge.

Thirdly and most recently, on 28 February 2024, the High Court in Belfast ruled that the immunity provisions in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 are incompatible with European Convention on Human Rights and Article 2 of the Windsor Framework once again. The significance of that of course is that it was not just a ruling of incompatibility under the European Convention on Human Rights, but it was ruled that a number of the provisions, all relating to immunity under that Act, were disapplied. Mr Justice Colton stated that Section 41 of that legacy Act was “incompatible with” Article 2 of the Ireland-Northern Ireland Protocol/Windsor Framework. So, pursuant to Section 7A of the EU withdrawal Act 2018, Article 2 has primacy over Section 41, thereby rendering it to have no force and effect—so Section 41 should be disapplied.

These very recent rulings of the High Court in Belfast have far-reaching consequences for the Bill before the House, and more generally. The ruling in relation to Article 2 of the Windsor Framework is highly significant because of the reasons I set out regarding disapplication, not just incompatibility. I put down this amendment to explore, first, how the rulings of the High Court fit with the Government’s assertions. Secondly, how do they sit with paragraph 46 of Command Paper 1021 Safeguarding the Union? That paper says:

“The important starting point is that the Windsor Framework applies only in respect of the trade in goods—the vast majority of public policy is entirely untouched by it. This includes important areas like immigration”.


This is clearly at variance with what three High Court judgments have now ruled. Some of us were pointing this out when the Command Paper was published, and indeed, long before that. If European law is enshrined and given primacy in Northern Ireland as a result of Section 7A of the European Union (Withdrawal) Act 2018, this is the inevitable outcome. It is very clear in law that that is the case.

19:30

But there has been a bit of a co-ordinated campaign to drown out the facts and obscure some inconvenient realities of the situation. I urge government Ministers to be more open and transparent about the effects of EU law application in Northern Ireland and, as a result of Section 7A, to the UK as a whole. This is not the first time that we have found that the Government have been somewhat economical with the reality in relation to the application of the Windsor Framework. We found it with some of the debates we had on trade deals and on the animal welfare legislation, when the Government argued that they made a policy choice on allowing the export of live animals from Northern Ireland. In fact, their own impact assessment for that Act said that they could not but allow this trade in live animals to continue. They had no choice in the matter; it was not a policy decision.

This amendment is designed to test the claims about the Windsor Framework and the claims made in the Command Paper. Can the Government and the Minister give an absolute guarantee today that all the provisions of the Bill will apply to Northern Ireland, in light of the judgments that have been given in the High Court in Northern Ireland? If the Government cannot give me that guarantee, why do they not legislate to make that clear, along the lines of the amendment I have put forward? The Government refused to take on board that amendment in the other place, and they resisted it in Committee in this House—I tabled such an amendment along with my noble friend Lord Morrow. Will they commit to taking action to put this in line with what they claim is their position and the position in the Command Paper? I would appreciate it if the Minister could commit at least to meeting with me to discuss this matter in detail before Third Reading to see how we take this forward.

The reality is that, whatever your view on all these matters—whether it is something like the animal welfare legislation or whether it is the very important and fundamental provisions of the Bill, whether you agree with the substance or not—we must have openness and transparency about the reality of how it applies in Northern Ireland and the reasons why it cannot. That is what I am eager to explore, and the Government need to tell this House and be frank with the people of Northern Ireland about the reality of how we are now governed. I look forward to the Minister’s reply.

[Lord Dubs (Lab)]

My Lords, I will speak to Amendment 44A, which is on a different point from the one the noble Lord made about Northern Ireland. The point is simple. There is a long-standing convention that the United Kingdom Government do not legislate for the Channel Islands or the Isle of Man without seeking their consent before doing so. I had a letter from the Government of Jersey asking me whether I could raise this on Report. I understand that, on this occasion, no consultation took place with the Government of Jersey before the Bill’s introduction, and I do not have any evidence of whether the Government of Guernsey and the Isle of Man think the same as the Government of Jersey. All I know is that the Government of Jersey do not consent to this permissive extent clause.

In the event, neither the Rwanda treaty nor the Rwanda memorandum of understanding apply to Jersey, and any extension would be complex given that Jersey has its own Human Rights (Jersey) Law 2000. I am not sure whether this is an oversight by the Government in their haste to get the Bill through or whether something else is going on that I do not understand, but I would very much like the Government to explain why they have not sought the consent of Jersey, whether they have sought the consent of Guernsey and the Isle of Man, and what they propose to do to rectify this position.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will say a couple of things about Northern Ireland, following the noble Lord, Lord Dodds of Duncairn, although I suspect from a very different perspective. First, as I pointed out in Committee, the Joint Committee on Human Rights asked for a full explanation before Report. We are almost at the end of Report and, as far as I am aware, despite all the talk of imminence, we still do not have the Government’s response to the JCHR’s report. I very much support what the noble Lord, Lord Alton, said about that earlier—it really is not good enough.

I turn to the disapplication of human rights and the implications for the Good Friday agreement and the Windsor Framework. I know I will not change the Government’s mind on this, but I say this partly to amplify what was said earlier and put this on the record. The cases that the noble Lord referred to have been brought to my attention. In their revised fact sheet—and in almost identical words in a letter to me—the Government said that

“the bill does not engage the Belfast (Good Friday) Agreement, including the rights chapter - those rights seek to address longstanding and specific issues relating to Northern Ireland’s past and do not extend to matters engaged by the bill”.

But the cases to which the noble Lord referred made something absolutely clear. The 28 February decision in the 2024 case of Dillon and others—NIKB 11 —referenced the overarching commitment to civil rights in the relevant chapter of the Belfast Good/Friday agreement. It said in paragraph 554:

“A narrow interpretation of ‘civil rights’ undermines the forward-facing dimension of the non-diminution commitment in article 2(1)”.


It says it is “future-facing”; it is made clear that it is not looking just to the past.

Similarly, in Angesom, which was also referred to by the noble Lord, the decision said:

“The court rejects the submission by the respondent that the rights protected by the relevant part of the GFA are frozen in time and limited to the political context of 1998. The GFA was drafted with the protection of EU fundamental human rights in mind and was therefore intended to protect the human rights of ‘everyone in the community’ even ‘outside the background of the communal conflict’”.


So I do not think that what the Government have come up with so far is good enough in explaining why they believe that the disapplication of the Human Rights Act does not apply and will not affect the Good Friday agreement and the Windsor Framework.

[Lord Anderson of Ipswich (CB)]

My Lords, I echo the importance of the issue that the noble Lord, Lord Dodds, has raised in his Amendment 44ZA. That issue, in a nutshell, is that relevant provisions of EU law apply in Northern Ireland and may, under the Northern Ireland protocol and Windsor Framework, result in the judicial disapplication of incompatible legislation.

The Northern Ireland Human Rights Commission, which of course is the statutory body appointed to look at these things, reported that Clauses 1 and 2 of this Bill are contrary to Article 2 of the Northern Ireland protocol. I asked the Minister in Committee whether the Government agreed with that, and he wrote to me on Monday as he had promised. The letter expressed the Government’s disagreement with the NIHRC, though without engaging with the detailed provisions that it had identified relating to asylum seekers as problematic for the application of the Bill in Northern Ireland. I respectfully question whether that conclusion is correct, given statements already made by the High Court of Northern Ireland in the various cases referred to by the noble Lord and the noble Baroness, Lady Lister.

I understand that the final judgment in the Northern Irish challenge to the Illegal Migration Act 2023, to which the noble Lord, Lord Dodds, referred—I think that he referred to the commission decision—is expected in the next 10 days or so, perhaps even in time for what we must assume will be ping-pong. I do not support the noble Lord, Lord Dodds, in his amendment, which asks us to disapply the EU withdrawal Act, but let me make a different suggestion. As the Government apply themselves to the judgments of the Northern Ireland courts, which have been referred to, I hope that they will reflect that, by accepting some of the amendments that your Lordships have already made to this Bill, they can protect it from successful judicial challenge in Northern Ireland and so ensure that it applies across the whole United Kingdom as intended.

On Amendments 44A and 44B, relating to the position of the Channel Islands, I declare an interest as a soon- to-be-retired member of the Courts of Appeal of Jersey and Guernsey. I have written to the Minister on this issue already and await with interest his response to the compelling points made by the noble Lord, Lord Dubs. I add only that the irregularity that he has identified surely applies, as he indicated, not just to Jersey or the Channel Islands generally but to all the Crown dependencies—including, I assume, the Isle of Man.

[Lord Falconer of Thoroton (Lab)]

My Lords, I echo what my noble friend Lady Lister and the noble Lord, Lord Anderson, have said, in supporting the approach that the noble Lord, Lord Dodds, has taken on behalf of Northern Ireland. I do not necessarily agree with the suggestion that he is making to solve the problem, but it is clear that what he is saying—and what I believe the people of Northern Ireland are entitled to—is total openness about what is going to be achieved in relation to this. If the position is that the Government are saying with one voice that, actually, Northern Ireland will be treated exactly the same as the rest of the country, because the Windsor Framework relates only to trade, whereas in fact the position will be different, the Government should either come clean in relation to that or should propose amendments.

I echo also what the noble Lord, Lord Anderson, said, which is that, if the Government were to accept some of the amendments that have been made on Report, which in effect incorporate some degree of judicial control, the question of there being any inconsistency between the Northern Irish position and that of the rest of the United Kingdom would almost certainly go away. It may be that that solution is not welcome to the noble Lord, Lord Dodds, but it would nevertheless lead to a conclusion that there would be no difference in the position between Northern Ireland on the one hand and the rest of the United Kingdom on the other.

I also support my noble friend Lord Dubs when he raises the question of why the Channel Islands are not being treated with the usual constitutional respect with which they are normally treated. What is it about this Bill that makes the Government think that they can throw all constitutional convention to the wind?

[Lord German (LD)]

My Lords, I will add some comments about the Jersey situation and the Channel Islands in general and amplify the questions asked by the noble Lord, Lord Dubs. First, there is a convention, which we talked about, which says that we do

“not legislate for the Islands without their consent in matters of taxation or other matters of purely domestic concern”.

More important is the Government’s guidance, which the Home Office is required to follow. The Government’s internal guidance—from the Ministry of Justice, originally —is that all UK departments

“must consult the Crown Dependencies at the earliest opportunity in the event that extension is under consideration and a PEC”—

the mechanism in the Bill here—

“should not be included in a Bill without the prior agreement of the Islands”.

Those are the rules that the Government have set for themselves, so we need to ask why they have not been followed. What is the rationale for not following their own internal rules and for breaching the convention, which is so important? As noble Lords have said, that will apply not just to Jersey, which may have been eagle- eyed and spotted it, but to all the Crown dependencies, including the Isle of Man.

19:45

Clearly, the Government first breaching a convention and, secondly, not following their own internal guidance is something that Home Office officials must have warned Ministers about. I would be grateful to know what advice officials gave to Ministers before they decided not to follow the internal rules of the Government.

[Baroness Lawlor (Con)]

My Lords, I would like to echo the request to my noble and learned friend for greater transparency and clarity on this very important question of whether the Bill is compatible with the Windsor Framework requirements. This has come up on other occasions, including during a discussion on the CPTPP enabling Bill, where, in the explanation of the extent of the Act, it was stated that it extended to Northern Ireland but did not apply to it—yet that was not even on the face of the Bill.

I hope that, on this matter, where deterrence is one of the aims of the Bill, we do not leave the sort of loophole that will lead to us having case law after case law in the Belfast High Court, making a laughing stock of this measure.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord, Lord Dodds, has once again asked the Government to explain the apparent contradiction between provisions in this Bill and Article 2 of the Windsor Framework. We believe that this is an important issue, and I can understand why the noble Lord believes that the Government did not fully respond to him or to the noble Lord, Lord Anderson, in Committee, especially given the concerns raised by the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and others on potential contradictions.

On Monday, this House strongly expressed its opinion that this Bill must be compliant with existing law. It is not unreasonable for the Minister now to fully respond to the questions of compliance. So we support the noble Lord in asking these questions, although we would not support the amendment if he were to press it to a vote.

I thought that the noble Lord, Lord Anderson, and my noble and learned friend Lord Falconer, made some important points about some of the amendments that have already been passed at this Report stage, which may reduce some of the anomalies that seem to be apparent in Northern Ireland. I would be interested to hear the Minister’s response to that point.

My noble friend Lord Dubs raised the issue of Guernsey. There is another amendment in the name of the noble and learned Lord, Lord Etherton, about Jersey. I think that it was the noble Lord, Lord Anderson, who said that the point really applies to all Crown dependencies. I would be interested to hear the noble and learned Lord’s response as to why the Crown dependencies were not consulted on provisions in this Bill.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to all noble Lords for their contributions to this debate. I will respond first to Amendment 44ZA, tabled by the noble Lord, Lord Dodds of Duncairn, which seeks to provide for the Bill’s effect in Northern Ireland, notwithstanding Section 7A of European Union (Withdrawal) Act.

The noble Lord makes his point exceptionally well, as he always does, in relation to the anxious question of the applicability of United Kingdom law to the United Kingdom. We have sought to be clear at the Dispatch Box that it is the unequivocal intention of the United Kingdom Government to apply the Bill in the same way across the United Kingdom. That is explicit in the Bill, which provides that immigration is a United Kingdom-wide matter.

I recognise that the tabling of this amendment once again reflects recent developments in the courts, of which we have heard from the noble and learned Lord, Lord Falconer of Thoroton, as well the noble Lord, Lord Dodds of Duncairn. As I stated to the noble Baroness, Lady Hoey, on Monday, when she raised these issues, the Government have always been consistent about their position on Article 2 of the Windsor Framework. I can advise that, following consideration of all aspects of the judgment of the court in the case of Dillon, His Majesty’s Government are applying for an appeal to the Northern Ireland Court of Appeal in relation to that matter. In any event, we remain quite clear that nothing in this Bill that provides for administrative arrangements concerning asylum and immigration policy engages Article 2.

For Article 2 to be engaged by this Bill, it would be necessary to demonstrate, first, that the alleged diminution relates to a right set out in the relevant chapter of the Belfast/Good Friday agreement on rights, safeguards and equality of opportunity; secondly, that the right was given effect in domestic law in Northern Ireland on or before 31 December 2020; and, thirdly, that it occurred as a result of the United Kingdom’s withdrawal from the European Union. These conditions are not all made out here and, indeed, fail at that first hurdle: they are not Belfast/Good Friday agreement rights. Accepting this amendment would undermine the Government’s position by implying that Article 2 and the rights in the Belfast agreement are far broader than is the case—that, I think, could not have been the intention of the noble Lord.

I am grateful to the noble Lord, Lord Dodds of Duncairn, for informal engagement with me and my colleague earlier this evening. As the noble Lord proposed, I would be delighted to meet him and any of his colleagues prior to Third Reading of the Bill. I have given, as I say, the assurance that an appeal has been sought in the appellate court in Belfast.

Briefly, in answer to the noble and learned Lord, Lord Falconer of Thoroton, the Government are not throwing any constitutional convention to the wind here. The Government’s position is an assertion throughout of constitutional orthodoxy.

[Lord Falconer of Thoroton (Lab)]

Can the noble and learned Lord indicate what the Government’s position is if the judgment stands—that is, where the leave to appeal is not given or the appeal fails?

[Lord Stewart of Dirleton (Con)]

In that event, as with any adverse decision, I think, the Government would have to reserve their right to consider the matter, but the position is as I have stated, and we are confident of success.

I turn to the points raised by the noble and learned Lord—

[Baroness Lister of Burtersett (Lab)]

Before that, I know that I am not learned, but I did say some things and I have been ignored. What has happened to the response to the report of the Joint Committee on Human Rights? We are getting very close to finishing Report and, when I last checked, it still had not been published. I point out that the Government may have been consistent in their position on Northern Ireland, but is it possible that they have just been consistently wrong?

[Lord Falconer of Thoroton (Lab)]

Before the noble and learned Lord replies, can he also respond in relation to the Constitution Committee’s report as well? Will we get the Government’s response before the end of Report?

[Lord Stewart of Dirleton (Con)]

I first beg the noble Baroness’s pardon; I had not intended to overlook her. In relation to the answers to which she and the noble and learned Lord refer, as we have said on previous occasions at the Dispatch Box, these responses will be issued imminently.

[Baroness Lister of Burtersett (Lab)]

I am sorry, but that really is not good enough. We are practically at the end of Report. This was promised to us by Wednesday. It is now 7.55 pm, on Wednesday evening, and we are about to finish Report, and still we are just promised it “imminently”.

[Lord Stewart of Dirleton (Con)]

I beg the noble Baroness’s pardon. I think that we had indicated that we were trying to get it by this point. That has not been possible, and I apologise to the noble Baroness.

I turn now to the matters raised by the noble Lord, Lord Dubs. Home Office officials meet the Justice and Home Affairs department officials of Jersey and officials from the Isle of Man and Guernsey on a regular basis. This engagement includes detailed updates on the Illegal Migration Act and this Bill. I note the points that noble Lords have raised with regard to consultation and confirm that the Government remain committed to consulting the Crown dependencies on legislation that might impact them. Unfortunately, due to the tight timeframes leading up to the introduction of the Bill, the Home Office was unable to engage in advance. However, as I have set out, I know that engagements have taken place since introduction.

Although it may seem unlikely, if, down the line, the United Kingdom-Rwanda treaty were to be extended to the Crown dependencies without the permissive extent clauses in this legislation—to which the noble Lord, Lord German, referred in his contribution—relocations from Jersey to Rwanda would not be able to take place, and it would be considerably harder to unpick this if the PEC is removed.

It is important to note that inclusion of a PEC in a Bill does not constitute legislating for the Crown dependencies, nor does it require any Crown dependency or the United Kingdom to do anything. Rather, it is a legislative tool that enables the United Kingdom’s provisions to be extended to the Crown dependencies when either a Crown dependency or, in extremis, the United Kingdom thinks necessary. There is no obligation to activate a PEC, but the enabling power remains in reserve.

[Lord German (LD)]

I thank the Minister for the reply—which was that “We were in such a hurry that we didn’t have time to follow our own rules”—but the question I asked him was what advice officials gave him, given that the requirement not to put a permissive extent clause in this Bill is in fact within the guidance issued to the Home Office, and this is the Government’s own internal rule for it. Somebody must have said something at this point. Can the Minister tell me why the officials’ decision was to override their internal rules?

[Lord Stewart of Dirleton (Con)]

I regret to say that I am not privy to that information directly. I hear the point that the noble Lord raises, and, if he will permit, I will write to him to set out in appropriate detail an answer to the point that he makes.

[Lord Dubs (Lab)]

I am afraid that we are still left with a very unclear position as regards Jersey, and possibly also the other Crown dependencies. Where does this leave us? Jersey has made it clear that it does not consent to the permissive extent clause. Where does that leave us? It is a bit of a mess. Should not the Government bring forward something to tidy this up at Third Reading?

[Lord Stewart of Dirleton (Con)]

I shall make sure that the noble Lord’s point is given consideration before Third Reading.

For the reasons that I have sought to set out, I would encourage the noble Lord, Lord Dodds, to withdraw his amendment at this stage.

[Lord Dodds of Duncairn (DUP)]

My Lords, I am grateful to the Minister for his response to the debate and to everyone who has taken part. My purpose in bringing this amendment is, again, to shed light on the reality of where Northern Ireland in particular stands. I hear what he said about the appeal and what he said about meeting us before Third Reading; I would like to explore these matters in greater detail. We have heard the reassertion of the original assertion, which might have been understandable before the first case, or maybe even after the first case, but after three court cases it is beginning to wear a little thin. However, I look forward to meeting him and discussing it further. With that in mind, I beg leave to withdraw the amendment standing in my name.

Amendment 44ZA withdrawn.

Amendments 44A and 44B not moved.

[The Deputy Speaker (Baroness Finlay of Llandaff) (CB)]

I must inform the House that if Amendment 45 is agreed, I will be unable to call Amendment 46 due to pre-emption.

20:00

Clause 9: Commencement and transitional provision

Amendment 45

Moved by

[Baroness Chakrabarti]

45: Clause 9, page 6, line 38, leave out subsection (1) and insert—
“(1) This Act comes into force on such day as the Secretary of State may by regulations appoint.(1A) A statutory instrument containing regulations under this section may not be made unless— (a) the Secretary of State has laid a statement before each House of Parliament pursuant to section 1(1C), and(b) a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(1B) The Secretary of State may by regulations made in accordance with subsection (1A), provide for the Act to be in force for an initial period not exceeding 2 years (the initial implementation period).(1C) At the expiration of the initial implementation period, the Secretary of State may by regulations made in accordance with subsection (1A), provide for a further period during which the Act will be in force, provided that such an extension is for a period not exceeding 2 years.(1D) At the expiration of the first extension and in respect of any subsequent extension, the Secretary of State, may by regulation, made in accordance with subsection (1A) provide for the Act to be in force for a further period, any such extension must not be for a period exceeding two years.”Member’s explanatory statement
This amendment replaces commencement of the Bill, currently triggered by the entry into force of the Rwanda Treaty (an executive act), and the Act’s continuation for periods of no more than two years, with a parliamentary trigger requiring both a statement from the Secretary of State and resolution of each House of Parliament.

[Baroness Chakrabarti (Lab)]

My Lords, there is always an alpha and an omega, and here we are. Earlier, the Minister said that he does not apologise for insisting on accountability—parliamentary sovereignty and parliamentary accountability for the crucial decisions that are being discussed here. He said, “We will not ratify until we are satisfied that various provisions of the Rwanda treaty have been fully implemented”. Who is “I” and who is “we”? I think the Government’s argument throughout the Bill’s deliberations has been about parliamentary sovereignty, which is a fair point, but if it is parliamentary sovereignty and not executive domination, my Amendment 45, supported by the noble Viscount, Lord Hailsham, the noble and learned Baroness, Lady Hale of Richmond, and the right reverend Prelate the Bishop of St Edmundsbury and Ipswich, really challenges the Government to say whether they believe in parliamentary sovereignty, as opposed to executive domination. This amendment is about commencement. It would give Parliament, rather than just the Executive, a role. As I see the noble Viscount, Lord Hailsham, in his place, I ask him to explain.

[Viscount Hailsham (Con)]

My Lords, I will make just a one-minute contribution to this debate on Amendment 45. This is the rolling sunset to which I have previously referred. It is a natural phenomenon not previously identified by meteorologists, but the purpose is, as the noble Baroness has said, to ensure that the Secretary of State is accountable. He or she has to come to Parliament to trigger the commencement, and the rolling sunset provides for assessment every two years, in effect. That seems to me highly desirable, and in that spirit of desirability I support this amendment.

[Lord Falconer of Thoroton (Lab)]

I am very interested in this amendment. It gets rid of the current commencement provision, Clause 9(1), that says:

“This Act comes into force on the day on which the Rwanda Treaty enters into force”.


Article 24 of the agreement says:

“This Agreement shall enter into force on the date of receipt of the last notification by the Parties”—


that is, the parties to the agreement—

“that their internal procedures for entry into force have been completed”.

There is a statement that the only thing needed in order for the Bill to come into force is the bringing forward of this new legislation, the Bill we are debating now. I assume, on the basis of what the noble Lord, Lord Murray of Blidworth, said when he visited the Rwandan Parliament, that the Rwandan Government have now done all that is necessary to ratify the agreement.

[Lord Murray of Blidworth (Con)]

If it will assist the noble and learned Lord, the Chamber of Deputies of the Rwandan Parliament has approved the treaty. It needs to go to the Senate, and that should happen in the next fortnight or thereabouts, as I understand it.

[Lord Falconer of Thoroton (Lab)]

I am very grateful to the noble Lord, Lord Murray of Blidworth, for telling me that. Perhaps the Minister could give us details of when the Government of the United Kingdom expect the Government of Rwanda to have done all that is required under Article 24. When do they expect the last notification from the Rwandan Government? Am I right in saying that all that is required for this agreement to be ratified by the UK Government is this Bill becoming an Act, which presumably means when it gets Royal Assent? If that is right, will the noble Lord, Lord Sharpe of Epsom, explain to the House when the Act is going to come into force? On the face of it, it looks like it will come into force when the agreement with Rwanda comes into force. On the face of the Rwanda agreement, it looks like that comes into force when the last thing that is required for ratification takes place. As my noble friend Lady Chakrabarti said a moment ago, the noble and learned Lord, Lord Stewart of Dirleton, said, the Government will not bring it into force until they are satisfied that the agreement with Rwanda has been properly implemented. Well, that is not what the Act appears to say, so will the noble Lord, Lord Sharpe of Epsom, explain what appears to be a contradiction?

[Lord Scriven (LD)]

My Lords, I shall speak to Amendment 46 in my name. It has become clear, as we get towards the end of Report, that the Government have got themself into something of a pickle over the last few days of Committee and Report. There is so much information missing and so much information that the Government have promised that, by the last group of amendments on Report, we still have not got. It is important that we have it because, as we should remember, the provisions of the Bill say that this Parliament will determine whether Rwanda is a safe country, yet from the Government Front Bench they still have not been able to convince many noble Lords that the provisions that would make Rwanda safe are actually in place.

Normally, country notes are reviewed by the independent inspector—but, now that they have been sacked, what will happen? The previous independent inspector confirmed to my noble friend Lord Purvis on 17 January of this year that at that point the Home Office had not even asked the independent inspector to review the Rwandan country note to give his independent view on whether, in this case, Rwanda was indeed a safe country. Has the Home Office now asked the opinion of the independent inspector? Has the independent inspector been able to reply, to review the country notes and to give an opinion on whether Rwanda is a safe country or not? If not, how does the Home Office expect normal procedures to continue before this Parliament can form an opinion on whether Rwanda is a safe country—by reading the independent review of the country notes by the chief inspector, as would normally be the case?

This amendment is not about the rights and wrongs of the inspector’s dismissal, but it is about the reality of having a chief inspector in post so that independent monitoring can be done. It is quite interesting that the 13 reports published on 29 February, some of which had been held back since the previous April, show some deeply concerning findings. The findings in these ICIBI reports of Home Office failings demonstrate that it is critical that the Home Office is held to account by an independent body. This situation creates a vacuum of independent oversight and accountability, just as the department is talking about placing people within the Rwanda scheme and sending them there. It is closing down access to the UK asylum system, by implementing provisions of the Illegal Migration Act, for people to be able to claim asylum here in the UK.

I understand that the Government wish to hurry the operation of this Act without proper safeguards being in place and that it is a political priority for them to do that, but let me be clear that this House and this Parliament should not be ridden over roughshod and should have proper procedures and safeguards in place and be able to see what the independent inspector would think.

On the small boats inspections at Western Jet Foil and Tug Haven, the previous inspector said that the Home Office had “actively suppressed”—his words, not mine—the report for approximately six months. Importantly, when the report was published, the Home Office finally accepted the findings that exposed some of the risks that had been identified. In October 2022, having been to Manston, the previous inspector exposed, in his words, “the wretched conditions” that were experienced there and which prompted the Home Office to bring about immediate and active changes.

This is a tried-and-tested system of effective and independent monitoring which gets the Home Office to act. It is important that this Parliament has before it that review before we can decide whether Rwanda is a safe country. I know that the Minister may respond from the Dispatch Box that there is an independent monitoring committee in the treaty, but it is not fully independent, because Article 16(5) makes it clear that the co-chairs of the joint committee can add to the terms of reference of the monitoring committee. It is a very strange position that an independent monitoring committee can have its terms of reference added to by the very body that it is meant to be reporting to about whether something is safe and acting appropriately.

[Lord Murray of Blidworth (Con)]

Article 16(5) of the treaty confirms that any alteration to the terms of reference of the monitoring committee must not be,

“contrary to those provided in Article 15”

of the treaty. Article 15 sets out pretty comprehensively what the independent monitoring committee should be doing.

[Lord Scriven (LD)]

The very fact that extra terms of reference can be given by the co-chairs of the joint committee shows that it is not truly independent; that is the point I make.

I hope that the Minister will reflect on what I have just said, because it is clear that tried-and-tested experience, backed up with 30 civil servants, would show whether the promised obligations in Act and the treaty indeed were in place and had been implemented to a standard that gives people dignity, safety and future security, so that if this terrible Bill is enacted, no one is offshored to a place that clearly at present has not met the test set down by the Supreme Court and so cannot be considered a safe place.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 45 touches on an issue on which we have already voted on Report; namely, Amendment 7 in the name of the noble and learned Lord, Lord Hope, which would create a mechanism for ensuring that the safety of Rwanda as an ongoing condition of the scheme. We regard it as an excellent addition to the Bill and I hope our colleagues in the other place will give it serious consideration. The noble Viscount, Lord Hailsham, referred to it as a rolling sunset, but nevertheless the point remains.

Amendment 46 was introduced comprehensively by the noble Lord, Lord Scriven. He pointed to the 13 damning reports that were released on the same day that demonstrate the dangerous place our border security and immigration system is now in. I have a few questions for the Minister. Does he agree with David Neal that the protection of the border is neither effective nor efficient? When will the Minister announce the replacement for David Neal? Will there be somebody on an interim basis? What are the Government going to do to respond to the serious issues raised by the report? I look forward to his answers.

20:15

[Lord Sharpe of Epsom (Con)]

I thank noble Lords for their contributions to this relatively brief debate. Amendment 45 relates to the commencement of the Act. The Government have already set out their assessment that Rwanda is a safe country and can comply with its treaty obligations. In reaching this assessment, we have closely and carefully scrutinised all the circumstances of the country and information from appropriate sources, all of which are set out in the policy statement which is available on GOV.UK.

In response to questions raised in Committee, in particular by the noble Lord, Lord Purvis, with regard to the process for making amendments and whether the treaty will follow the CRaG process, which I committed to look into further, I think it is worth stepping back quickly to remind noble Lords of the process and where we stand today. The Constitutional Reform and Governance Act lays out how treaties are to be introduced and the necessary steps before we can proceed to ratification. The normal CRaG process has been followed and will continue to be followed. The treaty was laid before both Houses for 21 sitting days as required; the Commons did not resolve to ratify the treaty; we acknowledged the Motion in this House not to ratify, and the Government are considering next steps.

The treaty sets out the international legal commitments that the UK and Rwandan Governments have made, consistent with their shared standards associated with asylum and refugee protection. It also commits both Governments to deliver against key legal assurances in response to the UK Supreme Court’s conclusions. As has been said before from this Dispatch Box, the Government will ratify the treaty in the UK only once we agree with Rwanda that all necessary implementation is in place for both countries to comply with the obligations under the treaty.

In answer to the noble and learned Lord, Lord Falconer, I am afraid I cannot comment on exactly when that will happen in Rwanda. As my noble friend Lord Murray pointed out, it still needs to go through the upper house.

[Lord Falconer of Thoroton (Lab)]

Will the Minister identify what “internal procedures”—I am using the phrase from Article 24—are left for the UK to go through before the treaty is ratified?

[Lord Sharpe of Epsom (Con)]

I am afraid I cannot clarify that but, as I have said, the Government will ratify in the UK only once we agree with Rwanda all those necessary steps and the implementation is in place.

[Lord Falconer of Thoroton (Lab)]

Will the Minister undertake to write to those of us in the House who are interested in this before Third Reading?

[Lord Sharpe of Epsom (Con)]

Yes, I can certainly undertake to do that.

Furthermore, I can confirm that under Article 20 of the treaty the agreement may be amended at any time by mutual agreement between the parties. Agreed amendments shall enter into force on the date of receipt of the last notification by the parties that their internal procedures for entry into force have been completed. To be clear, any amendments made to the Rwanda treaty would need to comply with CRaG.

On the amendment tabled by the noble Lord, Lord Scriven, as noble Lords will know, the department carefully considers each report’s findings and these are often complex matters. The Independent Chief Inspector of Borders and Immigration monitors and reports on the efficiency and effectiveness of the immigration, asylum, nationality and customs functions carried out.

I appreciate that the noble Lord said this is not about getting into the rights and wrongs, but I am afraid that is not the case; it is about getting into the rights and wrongs of why the contract with Mr Neal was terminated. I will repeat what I said earlier in a Question. He released sensitive and misleading information from unpublished reports well within the time commitment for publication, so the Home Office did not have time to fact-check and redact inappropriate material. That is germane to this debate.

On the number of reports that were released last week, yes, there were 13 and they were released at speed, as Parliament requested and demanded. In those 13 reports, there were 27 recommendations; 18 have been accepted, eight were partially accepted and one was not accepted. I rehearsed earlier today the arguments about the accuracy of some of those reports, and I therefore think that that is a high number in the circumstances. On the question asked by the noble Lord, Lord Ponsonby, the Home Secretary has committed to look into appointing an interim chief inspector, and I cannot improve on his words at the moment.

However, going back to the point that the noble Lord, Lord Scriven, made, the MEDP with Rwanda has its own independent monitoring regime in the form of the monitoring committee. This committee will have the power to set its own priority areas for monitoring and have unfettered access for the purposes of completing assessment and reports—we have discussed that at some length.

I agree with my noble friend Lord Murray of Blidworth; he is completely right about his reference to Article 15. As the noble Lord, Lord Scriven, pointed out, Article 16(5) says:

“The co-chairs may set terms of reference for the Monitoring Committee in addition to but not contrary to those provided in Article 15 of this Agreement”.


I will not read out all 10 paragraphs of Article 15, but they are very comprehensive indeed.

The need for a statement on the impact of this Act, before it comes into force, is simply not necessary. As we set out at length in earlier debates, the monitoring committee has been appointed; it will provide real-time comprehensive monitoring—with an initial period of enhanced monitoring—of the end-to-end relocation and claims process, to ensure compliance with the standards agreed in the standard operating procedures and the treaty obligations. The monitoring committee will undertake daily monitoring of the partnership for at least the first three months, to ensure rapid identification of and response to any shortcomings. This enhanced phase will ensure that the comprehensive monitoring and reporting takes place in real time, and the monitoring committee will ensure that there is a daily presence of the support team on the ground through this enhanced phase.

On that basis, I urge noble Lords not to press their amendments.

[Lord Scriven (LD)]

Before the Minister sits down, let me say that I asked four very specific questions about the chief inspector’s view on the country notes. Has the Home Office asked the chief inspector’s office? Has a view come back? If not, what would happen if that normal procedure has not taken place, particularly in light of the fact that Parliament is being asked to say that Rwanda is a safe place, for which that kind of information would be normally available from the chief inspector? Would the Minister please answer those questions, which he clearly overlooked at the Dispatch Box?

[Lord Sharpe of Epsom (Con)]

My Lords, I did not entirely overlook them; I thought they were redundant, on the basis that there is no chief inspector—he has been sacked—so, no, we have not asked the chief inspector to look at the matter. As and when an interim is appointed, I am sure that will be part of his remit.

[Baroness Chakrabarti (Lab)]

My Lords, as always, I am grateful to all noble Lords, not only those who have spoken in this group, which is supposed to be about commencement of the Act, but also to those who participated in this important Report stage where 10 very important amendments—all of which improve rather than wreck the Bill—have been passed.

However, there is an alpha and an omega, and I remind noble Lords and Ministers opposite that, right at the beginning of the Bill, we are told in Clause 1(2)(b) that

“this Act gives effect to the judgement of Parliament”—

not the judgment of the Government or the Prime Minister, or the Home Secretary of the day, but the judgment of Parliament—

“that the Republic of Rwanda is a safe country”.

Amendment 45 is about giving Parliament a role in commencement of the Bill, because ratification of the Rwanda treaty is obviously an Executive act, not a parliamentary one, in the current terms. That is all; that is not wrecking—it is improvement. Many noble Lords have made that point.

In earlier debates, noble Lords, including noble and learned Lords, and Ministers have spoken about decrees. But this is Britain in the first quarter of the 21st century and we do not rule by decree; we govern by consent, democracy and accountability built on the rule of law. Commencement of this very controversial legislation should be by parliamentary judgment, as the Bill provides in Clause 1, and not by Executive decree, as the noble and learned Lord, Lord Stewart, mentioned earlier, and certainly not by just simple treaty ratification, which is an Executive act.

I am not going to press this amendment, but before this Bill returns, much amended, to the other place, I ask the noble Lords and Ministers to consider—because their whole argument is based on accountability and parliamentary sovereignty—whether Parliament, rather than Ministers or the Executive alone, should have a role in determining whether Rwanda is actually safe and continually safe, and whether this Bill, which may become an Act, should be brought into force. With that, I beg leave to withdraw the amendment.

Amendment 45 withdrawn.

Amendments 46 and 47 not moved.

Amendment 48 had been withdrawn from the Marshalled List.

House adjourned at 8.25 pm.