Safety of Rwanda (Asylum and Immigration) Bill

Lord Bishop of Chichester Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Baroness Hale of Richmond (CB)]

My Lords, I shall explain why I am proud to support this vital group of amendments to Clause 4 proposed by the noble Baroness, Lady Chakrabarti. They restore to the courts of this country the role which is properly theirs under our centuries-old constitutional arrangements, which respect the separation of powers between Parliament, the Executive and the judiciary.

I must apologise to the Committee that prior commitments prevented me speaking at Second Reading—although I was there for the all-important closing speeches—and attending the first two days of the Committee’s considerations. I have, however, followed the proceedings closely and have been hugely impressed by the quality of the debate.

I agree with so many noble Lords that reversing the very recent findings of fact in our Supreme Court with absolute and for ever conclusions as to the safety of Rwanda, ignoring international law, and disapplying the Human Rights Act are of the gravest concern. However, it is also of the gravest concern that the Bill ousts the jurisdiction of His Majesty’s courts and tribunals to consider matters which are properly theirs to consider, in a constitution which respects the rule of law. It is for the courts to decide whether the Executive have violated, or propose to violate, the rights of individuals—rights they are given, as the Supreme Court made clear, not only by international law and the Human Rights Act but by other UK statutes and by the common law of the land, of which we are so rightly proud.

Amendment 39 restores to the Executive the ability to consider the general safety of the Republic of Rwanda, not just the particular circumstances of a particular individual. This reflects the concerns already expressed in Committee, not only that the situation in any country may change very quickly but that it makes no sense to be able to examine the circumstances of a particular individual but not the evidence that hundreds or even thousands of people may be imprisoned or tortured there. This amendment would also cater for the concerns raised by the previous group of amendments about members of a particular social group.

Amendment 44 restores the same ability to evaluate such vital country information to courts and tribunals considering decisions to remove individuals to Rwanda.

Amendment 49 restores the ability of decision-makers, whether in government or in our courts and tribunals, to look at evidence that the Republic of Rwanda will or may refoule people. Refoulement, as the Committee well knows, means sending people to places where they are at risk of persecution.

Amendments 50, 52 and 53 also restore to our domestic courts and tribunals the jurisdiction to grant interim relief to claimants, preventing their removal to Rwanda until their cases have been properly considered. Amendment 48 in the name of the noble Lord, Lord Coaker, also restores the jurisdiction of courts and tribunals over possible refoulement but not the possibility of granting interim relief, so, with respect, though commendable in itself, it does not go quite far enough.

I remind the Committee that Clause 5 of the Bill allows for the possibility that a Minister of the Crown may comply with interim measures of the European Court of Human Rights. As a matter of sovereignty, it would be odd indeed if an international court could grant relief to people within the United Kingdom when our own courts and tribunals have been deprived by statute of any say at all. In my experience as a judge at the highest level in this country, there is a great deal of respect between our own courts and the European Court of Human Rights in Strasbourg. If and when Rwanda were to become a safe country, our courts would find it so and the Strasbourg court would almost certainly agree. On the other hand, if our own courts are unable to consider the matter, the international court would have to scrutinise the decisions of the UK Government with great care—an outcome which many noble Lords may think regrettable.

[The Lord Bishop of Chichester]

My Lords, my noble friend the most reverend Primate the Archbishop of Canterbury regrets that he cannot be in his place today to speak to the amendments in this group tabled in the name of the noble Baroness, Lady Chakrabarti, and the noble and learned Baroness, Lady Hale. I wish to associate my remarks with theirs and to emphasise how important the restoration of the jurisdiction of the domestic courts is in considering also UNHRC evidence and the ability to grant interim relief. This is no mere technicality. This jurisdiction might make the difference between sending an asylum seeker to Rwanda while their claim, or an aspect of their claim, is pending or not doing so.

Many of those who have been earmarked for removal will have fled from perilous circumstances in their places of origin. What they need is the certainty of knowing that they will not be removed from the country in which they seek asylum while their cases are pending. Clause 4 includes provisions for a court or tribunal to grant interim relief if they are concerned that the person faces a,

“real, imminent and foreseeable risk of serious and irreversible harm”

in Rwanda.

Through debate on this group of amendments, we are considering whether courts and tribunals may benefit from greater discretion for the express purpose of the well-being and future risk of the individuals themselves. We have seen the multiple difficulties faced by the Government in sending asylum seekers to Rwanda. Bearing that in mind, is it really plausible that, having sent an asylum seeker to Rwanda, the Government will then be able to return them to the United Kingdom on the basis of evidence that should have been considered while their case was reviewed here? This seems neither efficient nor plausible.

There is also a need to consider advice from the UN Refugee Agency in reviewing the safety of Rwanda, recognising its crucial role in administering many of the services to support more than 110 million people who are forcibly displaced around the world. That agency serves on the front line in supporting people, and it understands the particular challenges faced by those seeking safety. The agency knows of what it speaks; the courts and tribunals should be able to draw on this expertise as they make their judgments.

[Baroness Lister of Burtersett (Lab)]

My Lords, I very strongly support what has been said but want to draw attention to the statement, published today, from the UN High Commissioner for Human Rights. I will not read the whole statement, just one paragraph which is supportive of this group of amendments. It states:

“The combined effects of this Bill, attempting to shield government action from standard legal scrutiny, directly undercut basic human rights principles. Independent, effective judicial oversight is the bedrock of the rule of law—it must be respected and strengthened. Governments cannot revoke their international human rights and asylum-related obligations by legislation”.


Has the Minister read this and what is his response to the UN high commissioner?

Safety of Rwanda (Asylum and Immigration) Bill

Lord Bishop of Chichester Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Hoffmann (CB)]

The noble Lord, Lord Howard, did me the honour of quoting a passage which I had written in a foreword to the paper by Professor Ekins of St John’s College, Oxford, on the jurisdiction to grant interim injunctions. I adhere to what I said in that foreword, but I ought to go a bit further. I will not go into the reasons Professor Ekins gave. He looked into the terms of the treaty, the travaux préparatoires and what the court had been saying until relatively recently, and he came to the conclusion that it had simply invented the power to grant interim injunctions. Indeed, the court in Strasbourg does not even have the power to grant final injunctions. If it is determined that there has been a breach of the treaty, what is to be done about it is a matter for the Committee of Ministers and not for the court itself.

However, the power to grant an interim injunction is an important part of the armoury of any court. Anyone who has held judicial office will know that it usually involves not so much any question of law but a practical question of deciding what lawyers perhaps rather frivolously call the balance of convenience between facts, which means the power to balance the possibility of injustice in one direction or the other. That is to say, you say to yourself, “Well, what is the position? Assuming that he turns out to be right but I don’t stop this going ahead, what injustice will he have suffered; and likewise, if I do stop it, what injustice will have been suffered by the person who has been stopped?” You weigh these things against each other and come to a practical conclusion.

It seems to me that it was sensible for the original treaty not to have included a power to grant interim injunctions, because this is essentially a practical and local matter which ought to be considered by English courts—by the courts of this country—and particularly not by a court in Strasbourg, whose sole function is to say what the terms of the convention mean. What the convention means is what it says it means, and that is perfectly well understood. However, the power to grant injunctions seems really to be a question for local courts.

If we go ahead with Clause 5, we have the bizarre situation in which the courts are, by virtue of the other clauses we discussed earlier, prevented from themselves granting interim injunctions. For the reasons I have given, I wholly supported the amendments proposed earlier today by the noble Baroness, Lady Chakrabarti, and my noble and learned friend Lady Hale. They seem absolutely essential to enable our courts to give justice.

On the other hand, however, what we have is a provision by which the orders of a court which, in my view, does not have jurisdiction can nevertheless be enforced, provided that the Minister—like the Emperor at the Colosseum—puts his thumb up rather than his thumb down in relation to those particular orders. That seems an extremely strange situation. For that reason, I am unwilling to support the amendment that gives effect to the interim injunctions in our report, but I certainly supported the amendments that were moved earlier.

[The Lord Bishop of Chichester]

My Lords, I rise to speak briefly to Amendments 58, 60 and 61, to which my most reverend friend the Archbishop of Canterbury has put his name. I am very glad to be in support of the work of the noble Baroness, Lady Chakrabarti, on these amendments.

We come, of course, to the question of the place of the European Court of Human Rights. I am very grateful for the comments that have been made about that, particularly from the noble Lords, Lord Scriven and Lord Hannay, about it not being a foreign court but an international court. Earlier today, we heard from the noble and learned Baroness, Lady Hale, about the relationship that we have with the European Court of Human Rights—a relationship where we learn from the wisdom of international friends; where we bring our own wisdom and shape each other’s thinking and practice. It is a relationship of mutual respect for justice and for each other. These seem to me to be very important qualities as we look at the international situation of a very divided world today.

My most reverend friend the Archbishop of Canterbury referred in his speech at Second Reading to the danger of a “pick and choose” approach to international law, which threatens to undermine our global standing and the principle of universality. I agree. It is profoundly disturbing when, on the face of this Bill, we do not find assurance of compliance with European and UN approaches to human rights or an adequate mechanism for addressing our own processes of law and the risk of serious harm. This is about principles, values and rules to which we should aspire as the foundation of human dignity in an enlightened and humane society.

In the scriptures honoured by Jewish and Christian people alike, the prophet Isaiah speaks of one who will,

“proclaim justice to the nations”.

With this Bill, do we run the risk that countries less wedded to the rule of law and justice, seeing us as an example to follow, will do so for all the wrong and tragic reasons?

[Lord Falconer of Thoroton (Lab)]

My Lords, I support the amendments in the name of my noble friend Lady Chakrabarti, and in the names of the noble Viscount, Lord Hailsham, and the noble Lord, Lord Coaker, which are less powerful protections.

We as a country proclaim our compliance with the rule of law. We signed up to a convention that set up a court that would be the ultimate determiner of what that convention meant. That court, over a period of time, habitually issued Rule 39 statements or orders. Almost invariably, they are complied with. The court itself, in a case called Mamatkulov and Askarov v Turkey in 2005, said that those orders made under Rule 39 were binding in international law, not domestic law. If we had set up that court to be the final arbiter of what the convention meant, then we should accept it. How could I not, having heard the noble and learned Lord, Lord Hoffmann, with his leading counsel, the noble Lord, Lord Howard? They are two of the most effective advocates of their generation—therefore, not to be relied on because they are advocates, putting the contrary view.