Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Alton of Liverpool and Lord Stewart of Dirleton

Report stage
Wednesday 6th March 2024 Lords Chamber

[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.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Alton of Liverpool and Lord Stewart of Dirleton

Report stage
Monday 4th March 2024 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, the point of the Bill is to move the matter into the diplomatic and political sphere. The Bill and the treaty make the point that the matters are better considered there than they are in the court. That is my answer to the point which my noble friend makes.

Regarding Amendment 2, tabled by the noble Lord, Lord Coaker, I cannot accept that the provisions of this Bill undermine the rule of law. Amendment 2, implying that this legislation is not compliant with the rule of law, is simply not right. The Bill is predicated on Rwanda’s and the United Kingdom’s compliance with international law in the form of the treaty, which itself reflects the international legal obligations of the United Kingdom and Rwanda, as my noble friend Lord Murray of Blidworth pointed out following his recent visit.

As has been stated in the debates on this Bill, the Government take their international obligations, including under the European Convention on Human Rights, seriously. There is nothing in this Bill that requires any act or omission that conflicts with the United Kingdom’s international obligations. Along with other countries with similar constitutional arrangements to the United Kingdom, and again echoing points made by my noble friend Lord Murray, we have a dualist approach, where international law is treated as separate from domestic law and incorporated into domestic law by Parliament through legislation. This Bill invites Parliament to agree with its assessment that the Supreme Court’s concerns have been properly addressed and to enact the measures in the Bill accordingly. The Bill reflects the fact—going back to my noble friend Lord Howard of Lympne’s opening points—that Parliament is sovereign and can change domestic law as it sees fit, including, if it be Parliament’s judgment, requiring a state of affairs or facts to be recognised.

The principle of recognising that certain countries are safe for immigration purposes, as your Lordships heard from my noble friend Lord Lilley, is a long-standing one that is shared by many other countries as part of their respective systems. The European Union states are not the only countries that may be safe for these purposes. Therefore, to act as the Government are proposing in terms of the Bill would not an unusual thing for Parliament to do. There is other immigration legislation in which Parliament recognises that states are generally safe. It is not akin to Parliament stating something to be the case contrary to the actual position. The Bill reflects the strength of the Government of Rwanda’s protections and commitments, given in the treaty, to people transferred to Rwanda in accordance with it. The treaty, alongside the evidence of changes in Rwanda since the summer of 2022, enables Parliament properly to conclude that Rwanda is safe.

In addressing other points raised on this matter, and echoing what I said in response to my noble friend Lord Clarke, my noble friend Lord Tugendhat moved the sphere of literary references governing discussion of the Bill in your Lordships’ House from Alice in Wonderland to George Orwell’s Nineteen Eighty-Four. The point is not that the Government are proposing that Parliament should legislate contrary to the Supreme Court’s findings, but that Parliament should pass a Bill reflecting those decisions and acting on them. We are acting on the court’s decision, not overturning it.

I respectfully echo my noble friend Lord Howard of Lympne’s point, which again echoed his important speech at an earlier stage, that the theme of this matter is accountability—the accountability of Parliament and the Government to face the consequences of their actions and decisions before the electorate.

The importance of Parliament’s judgment is the central feature of the Bill and many of its other provisions are designed to ensure that Parliament’s conclusion on the safety of Rwanda is accepted by the domestic court. The treaty sets out the international legal commitments that the United Kingdom and the 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 conclusions of the UK Supreme Court. We are clear that we assess Rwanda to be a safe country and we are confident in the Government of Rwanda’s commitment to operationalising the partnership successfully in order to offer safety and security to those in need.

In answer to a point made by the most reverend Primate the Archbishop of Canterbury, while Sir Winston Churchill was instrumental in drawing up the body or making possible the creation of the European convention, he did not say anything to alter the constitutional principle of the supremacy of Parliament, to which I have made reference.

I return to matters raised in the submission of the noble Lord, Lord Alton of Liverpool. He posed two questions, the first on the receipt of an answer to points made by committees of your Lordships’ House. I have checked that and it is anticipated that answers to the Joint Committee on Human Rights and the Constitution Committee will be issued by Wednesday.

The noble Lord also raised costs. The point is not that doing nothing does not have costs. We will doubtless return, later at this stage of the Bill, to the enormous expense inflicted on British taxpayers—running to billions of pounds a year—by maintaining the status quo. It is that status quo that we seek to interrupt.

[Lord Alton of Liverpool (CB)]

My point on the question of costs was not so much the £0.5 billion, but that the chair of the Home Affairs Select Committee in another place said that this was a staggering amount of money and that it was being veiled by so-called commercial confidentiality. When the Minister publishes his response to the Joint Committee on Human Rights and the Constitution Committee “by Wednesday”, will he undertake to provide further details unpacking the so-called “confidentiality” of this £0.5 billion?

[Lord Stewart of Dirleton (Con)]

If the noble Lord will permit, I will defer answering that question until later.

So it is in order to prevent the current expenditure—the cost of housing asylum seekers is set to reach £11 billion per year by 2026—that the Government propose to act. As I have said, we assess Rwanda to be a safe country and we are confident in the Government of Rwanda’s commitment in that regard. I therefore invite the noble Lord, Lord Coaker, not to press his Amendment 2, and I also invite the noble Baroness, Lady Chakrabarti, to withdraw her amendment. If the amendments are pressed, I will have no hesitation in inviting the House to reject them.

Illegal Migration Bill

Debate between Lord Alton of Liverpool and Lord Stewart of Dirleton

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, I do not think I did. The point I am making is that the serious harm suspensive claim in connection with Clause 38 makes it clear that persecution and onward refoulement are examples of harm that constitute serious and irreversible harm for the purposes of such a suspensive claim. Hence there is consideration of individual facts and circumstances.

On Amendments 19, 21, 24 to 28 and 37, I make an observation, namely that much in Clauses 5 and 6 and Schedule 1 draws on existing immigration law dating back some 20 years. To that extent, the provisions contained therein are not new; they provide necessary clarity as to the country to which a person may be removed.

As regards the consideration of the status of countries as places to which persons can be removed safely and which are on the safe list, that list has been added to over the years. It is instructive that some of the countries added to the safe list in terms of the Nationality, Immigration and Asylum Act 2002 were added during the period when the party opposite was in power: in 2003 Albania and Brazil; in 2005 India, Ghana for men and Nigeria for men; in 2007 Gambia for men, Kenya for men, Malawi for men, Mali for men, Mauritius, Montenegro and Sierra Leone for men—I merely exemplify. I reiterate that these are not novel provisions. They provide the necessary clarity as to the country to which a person may be removed.

The noble Lord, Lord Alton of Liverpool, raised a matter concerning the nature of the—

[Lord Alton of Liverpool (CB)]

Protected characteristics.

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for his assistance. I refer him to the equality impact assessment we have published, which in short order answers his question. Again, I am grateful to him for helping me out in my difficulty there.

[Lord Alton of Liverpool (CB)]

After today’s debate, before we reach group 17 and my Amendment 163, which is on safe routes but which also incorporates this idea of using protected characteristics as contained in the Equality Act 2010, perhaps the Minister can give some further consideration as to whether that might be a useful criterion to use as and when the Government decide on the formula that we use for safe routes.

[Lord Stewart of Dirleton (Con)]

My Lords, in the face of that characteristically thoughtful and constructive suggestion, I am happy to assure the noble Lord that we will consider that between now and the point he refers to in relation to his forthcoming amendment.

On Amendment 37, tabled by the noble and learned Lord, Lord Etherton, I know that he has had the opportunity to discuss this amendment with the Attorney-General, my learned friend in the other place. Following that discussion, I will make one further point that I hope will reassure the noble and learned Lord. If the open expression of a person’s sexual orientation would prevent them living in a specified third country without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim as outlined in Clause 39, and the principles enunciated by the Supreme Court of the United Kingdom in the case of HJ (Iran) would be upheld.

Nationality and Borders Bill

Debate between Lord Alton of Liverpool and Lord Stewart of Dirleton

Lords Hansard - Part 1 & Committee stage
Thursday 10th February 2022 Lords Chamber

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

My Lords, I am grateful to all noble Lords for their contributions. The amendments in large part concern provisions around the identification of modern slavery and trafficking victims.

First to speak was my noble friend Lady McIntosh of Pickering, who sought an explanation for Clause 59. The clause places the conclusive grounds threshold of a “balance of probabilities” into legislation. This is in line with the threshold that is currently applied and accepted by the courts and aligns with our current obligations under the treaty to which a number of speakers have referred: the Council of Europe Convention on Action against Trafficking in Human Beings —ECAT.

We submit that to remove this provision, as Amendment 156 would, would cause an inconsistent approach towards the two thresholds: the reasonable grounds threshold would be contained within legislation, whereas the conclusive grounds threshold would remain only in guidance. By legislating for both thresholds, decision-makers are able to rely on clear precedent and the process is both certain and ascertainable. This search for clarity will run through and inform the answers I will put before the Committee in this debate.

Amendments 156A and 156B from the noble Lord, Lord Alton of Liverpool, would amend the test for a reasonable grounds decision in legislation. The matter of whether there are “reasonable grounds to believe” that an individual is a victim is the appropriate threshold —again, as it mirrors our obligations under ECAT. For those reasons, I cannot accept Amendments 156, 156A and 156B.

I shall expand on matters raised by the noble Lord, Lord Alton, touching first on the ability that exists in legislation for people to challenge a decision made. Multiagency assurance panels are required to review all negative conclusive grounds decisions made by the competent authority for all cases submitted to the relevant competent authority. Multiagency assurance panels do not review negative reasonable grounds decisions. The role of multiagency assurance panels and the processes they follow are set out in the modern slavery statutory guidance for England and Wales promulgated under Section 49 of the Modern Slavery Act 2015. There is equivalent non-statutory guidance for Scotland and Northern Ireland; it is not found in primary legislation. The guidance states:

“An individual, or someone acting on their behalf, may request reconsideration”


of a negative reasonable grounds decision by the competent authority

“if additional evidence becomes available that would be material to the outcome of a case, or there are specific concerns that a decision made is not in line with guidance.”

The final conclusive grounds decision remains the responsibility of the competent authority. Multiagency assurance panels do not have the ability to overturn negative conclusive grounds decisions made by the competent authority. The competent authority can be asked to review a case where there is concern that the decision has not been made in line with existing guidance; that, in the view of the multiagency assurance panel, that would add value and clarity but has not been sought; or that the evidence provided and used in the decision-making process was not weighed appropriately and considered. So an element of its ability to reconsider and discretion remains in place.

I think the whole Committee will be aware that understanding of the painful effects of trauma and suffering on individuals and their ability to recollect is developing and has developed considerably over recent years, as a better comprehension of these strains and pressures comes to be understood. That understanding filters into this field, as into others. In particular, I refer your Lordships to understanding in the criminal justice system as to why people may make declarations or give statements that are not in their best interests or that they subsequently seek to go back on.

This topic seems to inform the points raised by the right reverend Prelate the Bishop of St Albans and my noble friend Lord Deben. Victims may well not want or be able to relive their trauma to state officials. Moulded by forces that those of us who have been happy enough to lead comfortable and sheltered lives can barely comprehend, they may find state officials intimidating.

Will the policy inhibit such people and impact adversely their ability to come forward and speak up? We recognise that some victims of exploitation may be fearful of coming forward to talk to the authorities, including some of the organisations that operate as first responders. That is why a range of organisations operate as first responders, including charities—some of which the Committee has heard about—that work closely with victims and local authorities.

We are keen to ensure that potential victims of trafficking are identified as early as possible and are supporting this with an improved legal aid offer for victims of trafficking with no immigration status within the United Kingdom and subject to immigration removal. This is to ensure that individuals receive the correct support package at the earliest opportunity to address their needs, regardless of when cases are brought, to make sure that those who need protection are afforded it.

[Lord Alton of Liverpool (CB)]

My Lords, the Minister is dealing with these issues with great sensitivity and I welcome the tone of his remarks. He has—I think deliberately—left a number of questions hanging, saying that a lot of work is being done on this and that people are considering these sensitive and detailed questions and looking at them more thoroughly. This all begs the question: who has demanded this change in this legislation at this time, in advance of us having detailed information laid before us?

It seems that we have it the wrong way around. Given that his noble friend said earlier that there will be a Bill specifically to improve the modern-day slavery legislation, why cannot we hold this over until we see more clearly where the information is wrong, where it is right and what the evidence is? Is it not the nature of good government to look and examine the evidence before bringing measures forward? I do not see any evidence that this has happened so far.

[Lord Stewart of Dirleton (Con)]

My Lords, I do not wish to appear to give a cursory answer to the noble Lord in a debate of this sensitivity, but my noble friend Lord Wolfson of Tredegar committed to write on the data—I am grateful to the noble Lord for nodding his head in recognition. I imagine that the point he seeks to raise will be discussed in any such correspondence. Does that satisfy him at this stage?

[Lord Alton of Liverpool (CB)]

I am grateful to the Minister, but it seems to be the wrong way around. Normally, there is pre-legislative scrutiny of complex and sensitive issues, and this is a classic example where there should have been pre-legislative scrutiny, as there was before the 2015 legislation, in some detail and at some length. Why was it thought that in a Bill dealing specifically, as the noble Lord, Lord Deben, said, with nationality, borders and immigration, we should deal with an issue of this sensitivity? Would it not be better for the Government to withdraw this section of the Bill and come back with comprehensive legislation that we could all support?

[Lord Stewart of Dirleton (Con)]

My Lords, I hear the points that the noble Lord makes. With respect, it seems that he moves forward into a question already put to my noble friend Lord Wolfson of Tredegar when he stood at the Dispatch Box in relation to the earlier matter. As he advised the Committee, the Government are concerned about misuse of the system. Rather than seeking to anticipate data that I confess not to having, with the noble Lord’s permission, I will move on from this point. I am again grateful to him for nodding his head.

I was expanding to the Committee on matters raised by the right reverend Prelate the Bishop of St Albans. We recognise that potential victims may not feel able at an early point to discuss information relevant to these matters bearing on their experience. That is why, in Clause 58, we have included the safeguard of “good reasons”. Each case will be considered carefully, including any reasons for not bringing information earlier, which will enable decision-makers to take trauma into account.

I am sure that I am merely rehearsing matters already within the knowledge of the Committee, but examples of what may constitute good reasons for late disclosure of information include where the victim was still under the coercive control of the trafficker, did not recognise themselves as a victim at that point, or for reasons relating to capacity—intellectual, emotional or age capacity—did not understand the requirement or the proceedings.

We will set out our approach in guidance, giving decision-makers the tools to recognise the effect that traumatic events can have on people’s ability to accurately recall or share or recognise such events. We are concerned that by too prescriptively setting out the parameters of what can constitute good reasons in guidance, we will inhibit the flexibility of decision-makers to take a case-by-case approach, as my noble friend Lord Wolfson of Tredegar sought to emphasise in his submission to the Committee earlier, depending on a person’s specific situation and vulnerabilities.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, in opening from the Front Bench, the noble Lord, Lord Coaker, made a number of points in relation to the position of the Government in relation to the one-nation Conservative tradition, if I may put it like that. I will preface my remarks to the Committee by saying that, just as with our then coalition partners the Conservatives were in the forefront of dealing with the issue of modern slavery, so we were, hundreds of years ago, in dealing with the issue of slavery, as it then stood. Where slavery exists, Conservatives will always be found in the forefront of any attempts to confront it.

In relation to Clause 61, there is currently no policy on whether, or in what circumstances, individuals should or should not receive additional recovery periods under the national referral mechanism. Clause 61 addresses this gap by introducing a power to withhold additional recovery periods where an individual has already benefited from a recovery period and the further reported exploitation happened prior to the previous referral into the national referral mechanism, unless appropriate circumstances are set forth. This is not an attempt to create two tiers, however it may be read; rather, it is an attempt to put into legislation appropriate controls against misuse, where that misuse takes place.

Amendment 158 seeks to remove this power if any of the incidents of exploitation occurred when the individual was under 18 years of age. I seek first to reassure the Committee that the provision may be applied only when the further positive reasonable grounds decision arises from things done wholly before the previous reasonable grounds decision was made. Therefore, this power does not apply in cases of re-trafficking.

From the Front Bench, the noble Lord, Lord Coaker, like other noble Lords at an earlier stage, raised the question of why these provisions appear on the face of an immigration Bill. It is because there are overlaps between immigration and modern slavery, which the Bill recognises and seeks to address, but it also goes further in providing clarification on people’s entitlement.

As I said in relation to the previous grouping, and as I am sure we will all have occasion to say again, the complex nature of exploitation, as the noble Lord, Lord Coaker, identified in his opening speech and at other times in this debate, and the potential resulting safeguarding needs, particularly for children, are recognised by the Government. This clause is designed to allow for discretion in how decision-makers apply the disqualification, ensuring that the welfare of children will be taken into account. This discretion is an important part of our needs-based approach to the provision of support, and in the circumstances there is no need for the carve-out that the amendment proposes.

Moving on to Amendment 159, while we understand the intention behind this amendment, the existing discretionary element strikes the right balance between allowing decision-makers flexibility to grant additional recovery periods and preventing the misuse of the NRM protections to which I referred. Decision-makers will be able to consider the vulnerabilities and circumstances of the individual.

Turning to the amendments tabled by the noble Baroness, Lady Ludford, in relation to Clause 62, as noble Lords have outlined, ECAT envisages that recovery periods should be withheld on grounds of public order and improper claims. However, ECAT does not include a definition of “public order” and, to date, that omission has hindered our ability to disqualify suitable individuals in practice. The question was posed of whether the provision as it stands might impede operational decisions in relation to prosecution, but I submit that these decisions would be taken at all times in relation to that developing understanding of the pressures and difficulties. I fully appreciate that I am understating those things by using those expressions. Those pressures and difficulties are upon persons who are victims of modern slavery or human trafficking.

[Lord Alton of Liverpool (CB)]

I am grateful to the Minister. In Clause 62, the phrase “bad faith” seems extraordinarily ambiguous. Can he clarify that? What jurisprudence does this phrase come from and on what basis will it be interpreted in the courts?

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for that intervention. I was proposing to deal later with the expression “bad faith” and its source, but, to help him at this stage, it is not drawn from any comparable legislation, nor from the authority of the courts. We do not hark back to that. Rather, the nature of the problems that must be confronted in relation to this is sufficiently protean and diverse that a need was identified to arrive at a broad expression in the Bill, and “bad faith” was the language selected after consideration among Ministers and officials to represent that.