Safety of Rwanda (Asylum and Immigration) Bill

Lord Clarke of Nottingham Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

[Lord Green of Deddington (CB)]

My Lords, I shall be extremely brief. Some important points have been made, but I want to focus on the exact drafting of Amendment 3, which is clearly central and what the vote will be about. The puzzling aspect is that new subsection (1B) makes the condition that

“the Secretary of State has considered all relevant evidence … and is satisfied that the Republic of Rwanda is a safe country for the processing of asylum and humanitarian protection claims”.

Fine, no problem, but then it goes on to say:

“before successful claimants are returned to the United Kingdom by request of the Secretary of State under Article 11(1) of the Rwanda Treaty”.

I have looked at Article 11(1), and it does not say that. It says:

“The United Kingdom may make a request for the return of a Relocated Individual”.


Paragraph 12(c) of the Explanatory Notes describes that as a response

“to the Supreme Court judgment by … Creating a mechanism for the UK to require the return of a Relocated Individual”.

Which is it? Does this provide for the Secretary of State to bring people back or, as the noble Baroness implied, is that the outcome that is the purpose of the whole thing? I think that is the case, but the language needs to be cleaned up, or perhaps the noble Baroness would confirm it so that we know what we are voting for.

[Lord Clarke of Nottingham (Con)]

My Lords, I begin by paying tribute to my old friend Lord Cormack, whom I knew for 60 years. I first met him when I was fighting the then ultrasafe Labour seat of Mansfield and he was fighting the ultrasafe Labour seat of Bassetlaw next door in the 1964 election. From that time, he was a very good personal friend of mine for well over 50 years in Parliament, when we both got there on a rather better basis for our political careers. He was an extremely good man. It has to be admitted that he was always regarded as speaking too much in the Commons and the Lords, as he was always forthright in his views, but that rather ignores the fact that overwhelmingly he spoke very sensibly and extremely well, and the principles that guided him throughout his political career were extremely sound. We will all miss him.

I will not repeat the arguments that I have made previously. I just acknowledge that my noble friend Lord Hailsham has made a speech every word of which I agree with. The Government are in an impossible position. Another good personal friend, my noble friend Lord Howard, made a brilliant attempt to defend that position and to try to demonstrate that the Bill is compatible with the things that he holds as dear as I do—the rule of law and the separation of powers—but I fear that he fails. His arguments might apply if we were talking here about a matter of political judgment on a given set of facts that the Government were making a policy decision about. However, the Bill is solely about asserting a fact as a fact regardless of any evidence, and regardless of the fact that five Supreme Court judges unanimously considered that evidence and came to the conclusion, which is not too surprising, that Rwanda is not a safe country.

I cannot recall a precedent in my time where a Government of any complexion have produced a Bill which asserts a matter of fact—facts to be fact. It then goes on to say that it should be regarded legally as a fact interminably, until and unless the Bill is changed, and that no court should even consider any question of the facts being otherwise. It is no good blaming the Human Rights Act; I do not believe that it was in any way probable that the British courts were going to come to any other conclusion. If the Labour Party allows this Bill to go through, I very much hope there will be a legal challenge. The Supreme Court will consider it objectively again, obviously, but it is likely that it will strike it down again as incompatible with the constitutional arrangements which we prize so much in this country. I too will be supporting any of the amendments in this group as introduced. It is a very important principle that we are seeking to restore.

[Lord Alton of Liverpool (CB)]

My Lords, I will be brief, but I would like to associate myself with the remarks of the noble Lords, Lord Clarke of Nottingham and Lord Howard of Lympne, and the noble Viscount, Lord Hailsham, concerning Patrick Cormack, who was a dear friend of many of us. He was kindness itself to me when I became a Member of another place in 1979 and there were many issues on which we worked with one another, not least those around Northern Ireland. He did great service in uniting people around a complex and very difficult question during the years that really mattered. We were in touch with one another in writing just two weeks before his death. He had gone back to Lincoln to care for his wife Mary; he was deeply troubled about how ill she was, but he hoped soon to be back in his place. We will all miss him not being in his place and contributing to your Lordships’ House.

I would like to put just two points to the noble Lord, Lord Sharpe of Epsom, or to his noble and learned friend Lord Stewart, whoever will reply on behalf of the Government. I put a question during Committee concerning the report of the Joint Committee on Human Rights, on which I serve. I asked the noble Lord, Lord Sharpe, at that stage whether, before we considered this Bill on Report, we would have a proper reply from the Government to that Select Committee report. It is deeply troubling that there has been no reply and deeply troubling that Select Committees, not least one that is a Joint Committee of both Houses, can give a view about this Bill, specifically around the question of safety, and in a majority report say that it does not believe it right to say that Rwanda is a safe place to repatriate refugees to, yet not to have a response to those findings before your Lordships are asked to vote on amendments on Report. That is my first point.

My second point also concerns safety—the safety of our reputation as well. I was troubled to read in reports over the weekend that £1.8 million will be spent for each and every asylum seeker for the first 300 who are to be deported. That was described by the chair of the Home Affairs Select Committee in another place as a staggering figure. The Home Office declined to give information about it because of what it said was commercial confidentiality. I cannot believe that such a lame reply would be given, and I do not expect the Ministers to use that excuse when they come to reply today. It is not right for Parliament to be asked to take awesome decisions that will affect the lives of ordinary people, and to do so without giving all the facts being given to Parliament first.

I simply say that I have been reading the magnificent book East West Street by Philippe Sands KC. When we consider the way in which this country responded at that time to people such as Philippe Sands’ family, who had fled from Lviv, in what is now Ukraine, and when we consider the generosity of spirit and the response from people in both Houses of Parliament and all political traditions, that seems to contrast sadly—dismally—with how we are responding at this time through the Bill. I hope the Ministers will be able to reply to my points.

[Lord Lilley (Con)]

My Lords, I have listened to and read the debates so far with great respect. They have been dominated by distinguished noble Lords who are lawyers, and I am not. I want to raise two questions of fact and ask those noble lawyers, and indeed the distinguished prelates, why they have not mentioned them until now.

The first point has just been mentioned by my noble friend Lord Howard. Contrary to what has been asserted many times—that Parliament cannot by law state whether or not a country is safe—in 2004 the Blair Government did just that. They introduced legislation which created an irrebuttable presumption that a number of listed countries were safe. It was subsequently tested in the courts and upheld. Why have none of the noble Lords who have asserted that we cannot do that mentioned and dealt with the fact that we have done it in the past?

The second factual point was raised by the noble Lord who spoke from the Lib Dem Benches. He said that, if we do this sort of thing in the Bill, which gives us the right to override international law and not necessarily to respond to decisions and demands of the European court, we will forfeit our respect and ability to influence people in the international arena. Why does he, and others who have made similar points, not mention the fact that the French Government have done just that? They have returned an asylum seeker to Uzbekistan despite the order of the European court that they should not, and despite even a ruling of the Conseil d’État that they should bring him back. Have they lost all respect in international fora? Have they lost any ability to influence public opinion internationally? Why does that not get mentioned in this place?

[Lord Clarke of Nottingham (Con)]

I cannot claim to remember this clearly, but did anybody challenge with evidence the earlier cases that my noble friend tries to cite as a precedent? If anybody had had evidence showing facts to be contrary to what was then laid down in statute, does my noble friend think it would have survived a challenge in today’s Supreme Court?

[Lord Lilley (Con)]

I cannot say what today’s Supreme Court would do, but the supreme courts of our country in those days did entertain a challenge. Greece, in particular, was not thought to be safe, and presumably they would not think now that France is safe. They upheld the right of the Executive to make those decisions and did not try to supersede them or consider evidence as to whether the accusations were correct.

--- Later in debate ---

Regarding Amendments 1, 3, 5, 10 and 43, tabled by the noble Baronesses, Lady Chakrabarti and—

[Lord Clarke of Nottingham (Con)]

My Lords, my noble friend asserts that the Government are complying with the rule of law and respect the position of the courts and so on. Why does the Bill expressly rule out any court in future considering any evidence that Rwanda perhaps is not complying with the treaty that he has described, and why does the Bill expressly rule out the provision of various features of international law when it comes to consider future behaviour by the Government of Rwanda? The terms of the Bill seem to contradict the complete confidence with which my noble friend is putting forward this ideal situation that is likely to prevail for all time on the ground in east Africa.

[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.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I have been extraordinarily clear on this subject. As I said, the Bill provisions come into force when the treaty enters into force. The treaty enters into force when the parties have completed their internal procedures, and these amendments therefore confuse the process for implementing the treaty with what is required for the Bill provisions to come into force.

[Lord Clarke of Nottingham (Con)]

My noble friend says that it will confuse it; it is actually perfectly straightforward. If everything happens as smoothly as he says it will happen—and I hope it does, because I do not object to the safe country policy that is being pursued if we can find a safe country—the monitoring committee will presumably confirm that it has happened. Why is he resisting it, except to save the Secretary of State having to send a letter asking for the monitoring committee’s principle? Why is this amendment a threat to the Government’s stated policy?

[Lord Sharpe of Epsom (Con)]

I say to my noble friend that I am about to come on to the workings of the monitoring committee in great detail, if he will bear with me.

I turn to the points raised with regard to introducing a duty on the Secretary of State to consult with the monitoring committee every three months during the operation of the treaty. The committee is independent of both the UK and Rwandan Governments. It was always intended to be independent, to ensure that there is a layer of impartial oversight of the operation of the partnership. Maintaining the committee’s independence is an integral aspect of the design of the policy, and, as my noble and learned friend Lord Stewart of Dirleton set out, the treaty enhances the monitoring committee’s role.

The committee will ensure that obligations to the treaty are adhered to in practice and, as set out in Article 15(4)(b), it will report to the joint committee, which is made up of both UK and Rwandan officials. As per Article 15(4)(c) of the treaty, the monitoring committee will make any recommendations it sees fit to the joint committee. Therefore, these amendments are both unnecessary and risk disturbing the independence and impartiality of the monitoring committee.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I hear what the noble Lord says, but I have answered this in considerable detail now.

[Lord Clarke of Nottingham (Con)]

The more detail the Minister gives about the virtues of the monitoring committee, the stronger his argument is in favour of the amendment proposed to this House by the noble and learned Lord, Lord Hope. The briefing he has been given is totally contradictory to the conclusion that he is trying to invite us to reach.

[Lord Sharpe of Epsom (Con)]

I am afraid I disagree again.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Clarke of Nottingham Excerpts

2nd reading
Monday 29th January 2024 Lords Chamber

[Lord Clarke of Nottingham (Con)]

My Lords, last year I listened to quite a lot of the debate during the passage of the Illegal Migration Act and contributed to it once or twice. I had difficulty making up my mind as to whether I was going to support that Act. Eventually, although I expressed my reservations about whether Rwanda was a suitable place, I was persuaded that it was a good thing to support and I gave it my backing. Unfortunately, in the light of subsequent events we now have this Bill. At the moment, having considered it carefully, I must say that the details of the Bill, or its main point as in Clause 2, are a step too far for me, so I do not think I could possibly support it unless it is substantially amended as it goes through this House; we should urge the Commons to revise it.

My motive was that, first, it is necessary to have a credible and effective policy on illegal migration. It is a big problem and it is growing. It is small in relation to our total migration but its symbolic effect on public opinion is very important. The public need to be reassured that we have control of immigration into this country; if they think we have lost control, that threatens a very nasty change in public attitudes caused by doubts. We should all be proud of the relatively strong, multicultural and multi-ethnic society we have created in this country, much more successfully than most other European countries. That will be threatened by reactions to illegal immigration if it obviously starts to grow again and gets out of control.

The only policy I have heard in the debates so far, either here or anywhere else, that really resembled a possible working policy was that of using a safe third-party country to consider the refugee status of applicants. I listened to the debates here, most of which were legalisms and arguments about international law—which I last studied for my postgraduate degree and which I have never practised. I thought that the safe third country proposal—if you could find a safe third country—was worth a try, and I continue to back it in principle.

That policy hit a brick wall when it got to the Supreme Court. It failed there not because of any finding of international law that a policy of using a safe third country was in any way contrary to any convention, such as the refugee convention or the European Convention on Human Rights. The Government were defeated on an issue of fact. Five Supreme Court judges considered the evidence submitted to the High Court, and all five of them were persuaded that on that evidence, which they had heard arguments testing, Rwanda was not a safe country for this purpose, particularly because of the risk of refoulement. That brought the Rwanda aspect of the policy completely to a stop.

The Government’s reaction, which we are asked to approve, is quite startling to me. They have decided to bring an Act of Parliament to overturn a finding of fact made by the Supreme Court of this country. If we pass this Bill, we are asserting as a matter of law that Rwanda is a safe country for this purpose, that it will always be a safe country for this purpose until the law is changed, and that the courts may not even consider any evidence brought before them to try to demonstrate that it is not a safe country.

That is a very dangerous constitutional provision. I hope it will be challenged properly in the courts, because we have an unwritten constitution, but it gets more and more important that we make sure that the powers in this country are controlled by some constitutional limits and are subject to the rule of law. Somebody has already said in this debate that Parliament, claiming the sovereignty of Parliament, could claim that the colour black is the same as the colour white, that all dogs are cats or, more seriously, that someone who has been acquitted of a criminal charge is guilty of that criminal charge and should be returned to the courts for sentence. Where are the limits?

As time goes by in my career, I always fear echoes of the warnings that Quintin Hailsham used to give us all about the risks of moving towards an elected dictatorship in this country. The sovereignty of Parliament has its limits, which are the limits of the rule of law, the separation of powers and what ought to be the constitutional limits on any branch of government in a liberal democratic society such as ours.

The way this should be resolved is for the Government to say that the facts have changed. We are not hearing or testing arguments. I am meant to cast a vote as to whether Rwanda is safe, and I have received an email, the text of the Government’s treaty and the Explanatory Notes. I do not have the expertise on Rwanda that the right reverend Prelate the Bishop of Durham has just demonstrated. I have never been there. I know that it has been a one-man dictatorship for more than 20 years, that we sometimes give refugee status here to people fleeing persecution in Rwanda and, indeed, that it has a rather dodgy record—not as bad as some African countries—on human rights in various respects. I am not surprised by the judgment.

The Government say that things have changed, but I have no means of testing that, and I agree with all those who have said that change is subject to the Rwandans actually complying with the treaty, to the training being effective, to change on the ground reaching the required standard and to periodic checks being made of that. That is not what Clause 2, which we are asked to approve, sets out.

I hope we consider this Bill with very particular care. I will probably be attracted to support some pretty startling amendments that go to some of the main purposes in the Bill. If the Government wish to demonstrate that the facts have changed, some means should be found of going back to the court, facing another challenge, having a proper hearing of up-to-date evidence in the light of demonstrated improvement in the situation of Rwanda and getting a fresh judgment, if necessary, from the Supreme Court.

Meanwhile, search for other safe countries. Do not vote for the Liberal amendment today because, as the noble Lord, Lord Blunkett, said, although I would love to see the Conservative Party got out of this particular mess, the main effect of the amendment would be to get the Government out of the hole that they have dug for themselves. They have based far too much on this Rwanda policy, putting it at the heart of their political ambitions for the election. To be able to turn around and say that they would have stopped the boats but the unelected House of Lords, the Liberal Democrats and the metropolitan elite stopped them would save this Government from what I think are their follies in crashing on with this policy in this way, and I hope we will not fall into that trap, at least, in our proceedings.

Rwanda: Asylum Arrangements Treaty

Lord Clarke of Nottingham Excerpts

Tuesday 21st November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I read that story in the papers, and I have no idea.

[Lord Clarke of Nottingham (Con)]

My Lords, did not the Supreme Court make a finding of fact that Rwanda had broken similar agreements in the past with the Government of Israel and that the state of the Government in Rwanda did not give rise to any confidence that they would comply with the agreement we have made? How does a treaty affect that at all? Are the Government capable of taking any steps that make the Government of Rwanda look more capable, and are the Government searching for another safe country that can be trusted, which seems to me the only way in which this policy can possibly be continued with any hope of success?

[Lord Sharpe of Epsom (Con)]

My Lords, that gives me an opportunity to reflect again on what the court said:

“changes and capacity-building needed to eliminate the risk”—

of refoulement—

“may be delivered in future, but they were not shown to be in place when the lawfulness of the policy had to be considered in these proceedings”.

The fact was that those proceedings considered one day —14 June 2022. Much has changed since then, so I think we should wait to see what the legislation says.

Nationality and Borders Bill

Lord Clarke of Nottingham Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Clarke of Nottingham (Con)]

My Lords, I attended throughout the debate on the Bill yesterday and remained completely silent, and I arrived today intending to follow that good advice again, because I was actually unable to attend the earlier stages of the Bill at any scale and thought it would be quite wrong for me to join so late. But this is an important issue, which I have listened to very carefully, and I would quite like to register my views.

Yesterday, I voted with the Government against all the amendments to the Bill, because I think we have reached the stage where the opinion of the Commons should prevail, and I am not fundamentally against them trying this new innovation of offshoring illegal immigrants. I very much doubt that it will work, but I think they are allowed to have their way and see what happens. But I did vote yesterday in favour of the amendment from the noble Baroness, Lady Chakrabarti, and the more I listen to the debate, the more it seems to me that there are hugely important constitutional issues here. We are not getting a satisfactory reply, and we are not even getting, in the House of Commons, any very considered response from the Ministers available.

We all know that the present Government particularly dislike their important subjects being subject to judicial review: they were very upset when their Prorogation was overturned. Many other Governments have rather regretted it, but I think it is a vital protection. The Government’s view that what they are doing complies with our international legal obligations and with our own unwritten constitution—which has no force if the courts could not sometimes apply it—is very unwise. I think we should just defend that essential protection. The idea that the opinion of the Attorney-General, whoever he or she may be, in a Government of whatever complexion, if accepted by the Government, should not be a matter that goes any further or be a subject either for Parliament or for the courts, is sweeping and, with the greatest respect, slightly absurd, because no Attorney-General, however distinguished, has ever been infallible on these matters. So I do believe that, among the many important provisions of the Bill, this is the most important of all because of its wider constitutional questions.

I congratulate the parliamentary draftsmen on their ingenuity in producing terms that exclude the jurisdiction of the courts entirely on such matters. I am sure that, if it were done this time, we would find it happening with ever more regularity, in Bill after Bill presented by future Governments to this House. We should make one last attempt to stop that and I am afraid that I have not been persuaded to turn away from my support for the noble Baroness, Lady Chakrabarti, if she presses her amendment again.

[Lord Kerr of Kinlochard (CB)]

My Lords, it is a great challenge as well as a great honour to speak after the noble and learned Lord, Lord Clarke. I shall speak to Motion B1, which again seeks to bring the Bill into line with our international commitments. I believe there is a very important point of principle at stake here. There may actually be two points of principle—I am not sure about the second one—but the key one is pacta sunt servanda. The rules-based system works only if the rules are respected by all. We have just heard again—and we could hardly have heard more authoritatively —that this Bill is in breach of our commitments under the refugee convention.

The noble Lord, Lord Coaker, reminded us yesterday that UNHCR, to which we gave the job of supervising the interpretation of the convention, has confirmed yet again, authoritatively, in the strongest possible terms, that the Bill breaches that convention. We have heard from the Government Front Bench chop logic about how the Vienna Convention on the Law of Treaties allows conflicting national interpretations—but that really will not wash, as the noble Lord, Lord Pannick, has reminded us. We agreed to UNHCR’s supervising role: it is in the convention. We can complain from the stands when the referee rules our man offside, but we are not allowed to send on a substitute referee, and the referee’s ruling stands. So, it is not surprising that this House has voted three times to remove or improve Clause 11, which is where the breach of the convention is crystallised.

Yesterday, we heard from the Conservative Back Benches suggestions—I think it was just one suggestion—that all this was foreshadowed, and so legitimised, in the 2019 Conservative manifesto. Not so. I have checked. What the manifesto says is:

“We will continue to grant asylum and support to refugees fleeing persecution”—


and, later on:

“We will ensure, no matter where you come from, your rights will be respected and you will be treated with fairness and dignity.”


“Fairness” and “dignity” are fine words, but how can they be reconciled with depriving desperate people of their convention rights and their access to public funds, condemning them to destitution without even the miserable £5 a day subsistence that we pay to those stuck for years in the asylum process queue? Can we honestly say that those to whom we would in future be giving nothing at all would be being treated with fairness and dignity? No: Clause 11 is wrong in principle—pacta sunt servanda—and it would be shaming in practice.

My second point I put much more tentatively. Again, it is one the noble Lord, Lord Coaker, touched on yesterday. I put it tentatively because I have never served in the other place, but he has, with some distinction. It seems to me that this House is being treated with contempt. Of course, the elected Chamber must have the last word, but its view must surely be informed by an understanding of the considerations that led the revising Chamber to propose the changes it did. If I am right, are the Government, with all due respect, not cheating when they blandly assert no incompatibility the convention, when they make no attempt to refute—but simply ignore—this House’s demonstration that there is clear incompatibility, and when they allow minimal time to discuss an issue that is so important to our reputation as a law-abiding country?

Nationality and Borders Bill

Lord Clarke of Nottingham Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

Sorry, I thought the noble and learned Lord, Lord Clarke, gave way to me.

[Lord Clarke of Nottingham (Con)]

I am not accustomed to the practices of this place; I am quite happy to see the debate alternate between different sides. I arrived at this debate—I regret that I have not got to the earlier debates on this difficult Bill—intending to listen but not to speak. I was hoping it would help to resolve the dilemma I face, which turns out to be exactly the same dilemma that has just been addressed by my old and noble friend Lord Horam.

I dare to venture that no one sitting in this Chamber has more liberal instincts than me on the subjects of race, xenophobia, multiculturalism and so on. In fact, one of the satisfactions of finding yourself elevated to the peerage is that you can come into this Chamber, where I suspect 99% of Members have perfectly sound liberal instincts. I have seen society in this country change considerably in my lifetime in the post-war world, and I have said publicly more than once that I think the multi-ethnic and multicultural society in which I now live is a much healthier, stronger and more enriched society than the rather narrow and insular all-white society in which I was born and raised.

The 1951 convention was one of the great contributions that British lawyers and politicians made to the post-war world, and it was obviously highly desirable after the horrendous shock of finding that a European country had organised—or tried to organise—the industrial genocide of a whole race. That is the context in which it was drafted. So my instincts are of course, first, that we should comply with the convention and, secondly, that this is a suitable place to accommodate the many people who need refuge. We have done so very successfully as a country. Although race relations are a problem in some places in this country, I think that our society has handled this better than any other European country. We do not really have the serious problems that quite easily break out in other countries.

But the circumstances have changed worryingly and dramatically. As has been pointed out, because of the horrendously dangerous state of the world, about 80 million people are now displaced, are looking for a better life and would take desperate measures to get it. If my noble friend Lord Horam and I were a couple of 18 year-olds living in Nigeria, I suspect that, if we had more than averagely prosperous families, we would hope that they would raise the money for us to take the horrendously difficult journey of leaving Nigeria to make a new and better life for ourselves. We would then hope for a family reunion and that our family could come and join us once we had made our way in Britain.

Among that 80 million—an extraordinary number—the favourite destinations are probably the United States, this country perhaps second and then France and Germany. They will want to go to these countries because, in the modern world of communications, they can see and know perfectly well that they are where the quality of life is likely to be best for them, if they can get there. The tenor of the debates that I have listened to so far is that we should make sure that there are legal and safe ways in which, in one place or another, we can consider all of these applications and make ourselves at least as attractive as any other country, particularly at a time when many other, previously normally ultra-liberal countries are setting up very considerable barriers to going there.

But we have to reflect on the impact that that might have on our society and culture, because things have been deteriorating recently. The growing public reaction to immigration—albeit expressed in perfectly civilised ways by most people at the moment, fortunately—is one of the reasons why our politics is deteriorating so badly. Every democracy in the western world is seeing the rise of right-wing populist nationalism, which I deplore wherever it occurs, including within the Conservative Party. It is rising—that is the reaction—and it is leading to developments of a kind that have gone further in other countries. In France, the position of Marine Le Pen, who now even has a right-wing competitor for the vote, shows what can happen when you get the wrong public reaction.

Among the public, the overwhelming reaction to the publicised symbol of these worries at the moment—the dinghies coming across the channel and being picked up—is that the Government are failing to stop them. The Government do not have the first idea how to do so, and, actually, neither do I. Plainly, you have to rescue these people and bring them here when they are in our territory—and then they are an asylum and refugee problem.

--- Later in debate ---

[Lord Clarke of Nottingham (Con)]

Yes, as I am having various motives attributed to me. As I said, I came here with a dilemma. I do not think we will turn British public opinion round to the views I personally would like to support if I thought we could. I wait to be persuaded that the Government’s package will actually work and make the problem any easier. I reject the simplistic solution that all we have to do is provide safe and easy routes and accept that many more people will come, because they undoubtedly will if some of the things that have been proposed are accepted. That would cause very nasty further damage to our society and the level of our political debate. I am not convinced that Clause 11 and Clause 9 are a satisfactory solution to that yet. That is what I hope to hear my right honourable and noble friend persuade me of the course of this winding-up speech.

[Baroness Williams of Trafford (Con)]

Unfortunately, I am not right honourable, although you never know. I hope to persuade my noble and learned friend, but no one piece of legislation will be the silver bullet to solve all the problems. I do not think I have ever made any secret of that, but I thank him very much indeed for his points.

To get back to the LGBT+ community, it can have particular issues with claims. There is sensitivity about this. Our guidance on sexual orientation and gender identity was developed to take these issues into account. The UNHCR, Stonewall and Rainbow Migration contributed to its development and we are most grateful to them. We will review and update our training and guidance where necessary to support people who are LGBT+.

I would like to get back to the first safe country principle, which is internationally recognised. In fact, it underpins the common European asylum system, particularly the Dublin system, which I note that a number of noble Lords are separately seeking to replicate through the Bill. Broadly speaking, the first safe country principle defines countries which are presumed safe to live in, based on their stable democratic system and compliance with international human rights treaties. Dublin therefore functions on a twofold logic: first, that first countries of entry are safe and should normally be responsible for determining an asylum claim; and, secondly, that burden sharing can then take place where there is a family connection in another safe country. In essence, the first safe country principle removes asylum seekers’ ability to choose where to go—and undertake dangerous journeys in the hands of criminal smugglers to do so—in favour of safe, orderly, and regular management of flows. That is a reasonable approach.

To demand that the UK do more to share the burden, but also to hold that asylum seekers have the right to choose where to claim—the point that my noble friend Lord Hodgson of Astley Abbotts made, this concept of forum shopping—is simply contradictory. On this logic, the number of people who claim in the UK is exactly the right number and there is nothing more that the UK needs to do. Conversely, the reason that the Bill enshrines the idea that asylum seekers ought not to choose where they claim, by setting out various measures in defence of the first safe country principle, is precisely because removing that choice enables us to do more on burden sharing from regions of origin. In what is decidedly a more ambitious approach than anywhere in the EU, such a policy would provide far more generosity, fairness, and control in managing global asylum flows. Can I turn now to pull factors?

Oral Answers to Questions

Lord Clarke of Nottingham Excerpts

Monday 15th July 2019 Commons Chamber

[Mr Speaker]

I am enormously tickled to see the right hon. and learned Member for Rushcliffe (Mr Clarke), the Father of the House, beetle into the Chamber by walking across the Government Front Bench. I suppose that he was so long an habitué of the Treasury Bench that it may seem a perfectly normal means by which to enter the Chamber, but, in any case, we are delighted to see him.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I do apologise to the House. It was once the only way that I entered this Chamber.

[Mr Speaker]

As I say, we are very pleased to see the right hon. and learned Gentleman, and we look forward to hearing from him ere long.

Shamima Begum and Other Cases

Lord Clarke of Nottingham Excerpts

Monday 11th March 2019 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I think it is well established international law that one does not take away the citizenship from even one’s most unpleasant fellow citizens if it will leave them stateless. I thought it was policy not to take away citizenship unless someone had substantial citizenship of and some connection with another country. I had not previously heard it described as some sort of punishment for past misbehaviour.

May I ask the Home Secretary to address the security implications for our safety? There are thousands of European nationals who are jihadists. They are now scattering over the middle east, in camps and elsewhere, trying to get out. Does he not agree that if each European country desperately tries to turn away its own in the hope that they will go to some other country, we will actually expose ourselves to considerable danger? Is it not preferable that everybody who gives up and wants to return to their own country comes back to that country, where they can be put in the hands of the police, prosecuted if necessary, and kept under surveillance by the intelligence services for as long as is necessary?

[Sajid Javid]

The first point that my right hon. and learned Friend raised was on citizenship. Again, to make it clear, under international law it would clearly not be possible for the British state to remove British citizenship from anyone unless the Home Secretary who is making that decision is satisfied, based on expert advice, that that individual will not be left stateless, so he is right to make that point about international law.

On the security implications that my right hon. and learned Friend asked about, clearly there is a balance that needs to be met. The primary objective should be the safety and security of all those who live in the United Kingdom. That should be the overriding concern, based on expert advice and expert intelligence about what is necessary to protect British citizens. There is a case for more co-operation with our international partners because, as I mentioned earlier, they face many similar challenges. It is something that I discuss regularly, especially with our European partners—I discussed it just last week in Brussels with some of them—and that we are trying to get better co-ordination on so we can better manage some of the joint threats that we face.

Deprivation of Citizenship Status

Lord Clarke of Nottingham Excerpts

Wednesday 20th February 2019 Commons Chamber

[Sajid Javid]

I thank the right hon. Gentleman for his questions, which I want to go through. But let me say to him and the House that these decisions are never taken lightly, and I am not just speaking for myself.

The power has been in place for more than 100 years. It was set out properly in the British Nationality Act 1981, since when it has been used by successive Home Secretaries. Although I will not know every decision that every Home Secretary made in the past, I can be certain that none would have taken decisions on deprivation of British citizenship lightly. There are a number of things to weigh up: national security, moral issues and legal issues all need to be carefully taken into account. No decision of this type—as serious as this—can be taken lightly.

The right hon. Gentleman asked about the grounds for a citizenship decision. As I have said, I cannot talk about an individual case, although I am happy to try to answer his questions. Almost all these decisions, depending on how far back one goes, are made on what is called the “conducive test”: conducive to the public good. The test can apply to a number of issues—to the case prominent in the papers now, but also to many recent cases, including the ones that he mentioned, to do with terrorism and national security. In each of those cases, I would look at the evidence put in front of me: some of that would be secret intelligence and some would be more publicly available information. That would be used to determine the threat that the individual might pose to the country. Alongside that, officials from the Home Office, working with other partners and partner agencies, would put together a case, including a legal case, to look at a number of issues but of course absolutely to make sure that if we went ahead and took the decision to deprive someone of their British nationality, that person would not be left stateless.

In every decision that I am aware of—I cannot think that any of my predecessors would have taken a different decision—that has been applied, every single time. Our lawyers are expert in this field and would look carefully at judgments in previous cases—the right hon. Gentleman referred to those—if they have been challenged, to see whether there are lessons to be learned. Those would be taken into account. When a decision then has to be made, I have to be, in every case, absolutely confident that it is not only conducive to the public good, but legally proper and correct, and compliant with both international and any relevant domestic law.

The right hon. Gentleman may be interested to know that Lord Carlile, an individual whom he will know well, has already made a public comment—I can refer to public comment—about the case in the press at the moment and other such cases that he has been familiar with. He is worth listening to on how this practice has taken place in the past.

The right hon. Gentleman also asked about minors. Again, I cannot talk about any particular individual or case, but in the case of a minor, clearly even more care must absolutely be taken. It is absolutely paramount in all cases to take into account the welfare of minors. I cannot refer to any particular case, but that is also in domestic legislation: in any immigration decision, including about deprivation, the welfare of a child is taken into account where that is relevant.

Finally, I say gently to the right hon. Gentleman that he was a senior member of the previous Government. He was not only in the Cabinet: for almost three years, if I remember correctly, he was a member of the National Security Council. He would have discussed counter-terrorism issues in that council on countless occasions, and it would be hard to think that the issue of deprivation never came up. Not only was he a member of a Government who made decisions on deprivation, many on terrorism grounds, but he even voted for the Immigration Act 2014, which extended the powers of deprivation. Now he stands here pretending that he knows nothing of that and trying to play politics with such an important issue. He should reflect on that.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

When I was Home Secretary, I did not deprive anyone of their citizenship, and although the power is necessary, it is being used with ever increasing frequency. Every patriotic British citizen has to accept that we have fellow citizens who are extremely unpleasant and have very unpleasant and dangerous ideas. We deal with them through the rule of law—international law and domestic law. Some people are mass murderers, but we have given up transportation or exile as a response to such cases.

As this woman is only one, but several hundred have already come back and hundreds of various western nationalities are now stranded in Syria, is it not right that we should begin at least from the position that we should accept back the people who are obviously British, by every ordinary test of the word, and that others have to accept back everybody who is obviously a national of their state? Somehow leaving these people to disperse through Syria seems to me quite a serious threat to future security. We can use the full force of the criminal law —we must—and the full resources of the intelligence services once these people have got back here. That is how my right hon. Friend is going to be able to protect the British public.

[Sajid Javid]

First, I should say that I always listen carefully to my right hon. and learned Friend, who is very distinguished in the House and served as a distinguished Home Secretary as well as in many other positions of responsibility. As usual, he has made an important point. All I would say is that each case should be looked at on a case-by-case basis. That is exactly what happens in the Home Office: I look at each case very carefully against what tools are available that will help protect our national security and citizens here at home and in regard to what can be done to help bring people to justice.

My right hon. and learned Friend is right to point out that many hundreds of people from the UK—more than 900, we believe—have gone in recent years to Iraq or Syria to join terrorist organisations. There are many more from other European countries and countries such as the US and Australia. We work closely with our allies. I hope he welcomes the fact that we are trying to work even more closely with them following the recent news that Daesh is being defeated in the region, in the expectation that more people may want to come back to the UK or other European countries. We must work with our allies and see how we can co-ordinate and have a more unified approach.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons & Ways and Means resolution: House of Commons
Monday 28th January 2019 Commons Chamber

[Sajid Javid]

I can give my hon. Friend some assurance. I know that she has welcomed the pilot for seasonal agricultural workers that we have already announced. Once we have had the pilot, we will look at how we can incorporate such a scheme in the future immigration system.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I agree entirely with my right hon. Friend when he says how valuable all the people who are already here under free movement are, because they all have to be self-sufficient when they are here and they are all doing vital jobs. I also agree with him when he says how valuable international students are, and that we have no wish at all to see any reduction in bona fide students coming here from Europe. What I do not quite understand is which of these vital and valuable categories of people he intends to reduce the numbers of in the future, given that he keeps repeating the slogan, “Ending freedom of movement”. What is the policy point of changing our present arrangements if they have brought such valuable people to this country over the past years?

[Sajid Javid]

I am very happy to answer that question. First, our new system will allow us to help people to enter the UK based on their skills and not their nationality, so it is going to be their skills that will count. My right hon. and learned Friend also questioned how, in that case, by still welcoming the people with the skills, and the students, that we need, we will reduce net migration to more sustainable levels. The answer is in the approach that has been set out in the White Paper based on the evidence from the Migration Advisory Committee. The MAC clearly says in its evidence that if we have a policy that is focused on skills and not nationality, and focus more on high skills than low skills, that is consistent both with meeting the needs of the economy and reducing net migration down to more sustainable levels.

--- Later in debate ---

[Ms Abbott]

I remind Members that I have spent almost all my political career trying to help individuals deal with the excesses of an unfair immigration system. They would not be amused by seeing and hearing Members turn that into some kind of parliamentary game.

The Labour party reserves the right to reconsider its position on this proposed legislation when it comes out of Committee. There is no question but that freedom of movement can work. My parents came in the 1950s when there was effectively freedom of movement between the United Kingdom and the colonies. More recently, freedom of movement has worked well for key industries in the UK such as science, telecoms, heritage, aviation and the public services—in particular, the NHS. For many young people in particular, the removal of freedom of movement will be an absolute loss.

The Home Secretary risks being accused of complacency on the subject of EU citizens. There is still a great deal of concern among EU citizens about what the reality of the registration system will be and about whether the Government are equipped to register millions of EU citizens effectively, and there is uncertainty among not just EU citizens themselves but their employers.

[Mr Kenneth Clarke]

I am very grateful to the right hon. Lady for giving way. I do not wish to launch any type of personal criticism of her, as she has actually been making an extremely coherent, root-and-branch criticism of the Bill, and she has an excellent record on these things. The problem is that we are meant to be debating whether this House of Commons should approve the Second Reading of a Bill. She has denounced it from beginning to end but says that the official Opposition do not intend to vote against it. That makes the proceedings quite absurd.

The right hon. Lady is in the same position as the Home Secretary, who could think of no reason why any group coming under existing EU law should be reduced, except that we have to say that we are against freedom of movement. All the right hon. Lady can say to explain her Front-Bench colleagues’ extraordinary decision—I suspect it was not hers—is that they must be seen to be saying that they are against freedom of movement. That is no way to legislate, and it demeans her speech.

[Ms Abbott]

I am loth to disagree with the Father of the House, but he will be aware—more than any other Member, because he has been here longer—that this is not the end of our deliberations on the Bill. As has happened many times before, we will see how it is amended in Committee before we take a decision on how we vote on Third Reading, which will be the end of the deliberations.

One thing we hope will be addressed when the Bill goes into Committee is indefinite administrative detention. I was a Member of Parliament when immigration detention as we now know it was introduced. When some of us queried the lack of due process surrounding it, we were told not to concern ourselves because people would be detained for only short periods immediately prior to being deported. Now we have a monstrous system where people are held in administrative detention for a year or more. Ministers insist that detention is not indefinite, but if someone is in a detention centre, cut off from their friends and family, with no idea when they will be released, it certainly feels like indefinite detention to them.

It has long been my view that we should end indefinite detention, and the Labour party’s commitment to ending it was set out clearly in the 2017 manifesto. I welcome the fact that Members on both sides of the House are coming round to that point of view. One can only hope that the Bill is amended along those lines in Committee.

European Union (Withdrawal) Act

Lord Clarke of Nottingham Excerpts

Wednesday 5th December 2018 Commons Chamber

[Sajid Javid]

I very much respect what the right hon. Gentleman has just said. He has shared it with the House on a few occasions, and I absolutely understand what he says. Let me just say from the outset: no one can pretend that this deal is perfect in every sense. Inevitably, there will be some compromises with this deal and with a number of objectives, including, as we have just heard from the Prime Minister in Prime Minister’s questions, a need to ensure that the commitments in the Good Friday agreement are upheld. What he is referring to is if—and it is an if—the backstop arrangement kicks in. He is right to point to the legal advice, but it is worth keeping in mind the fact that that situation does not necessarily arise, even if there is no final deal on the future arrangement by December 2020, because there is an opportunity for alternative arrangements, including extending the implementation period. Even if the backstop arrangement kicked in, he referred to, it is, at a minimum—legally from the European Union’s perspective—not sustainable because it is done under article 50 of the European Union’s own rules.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Does my right hon. Friend not accept that, if we are maintaining an open border where there is a land border, it can only be done in a modern economy by having some form of customs union applying to both sides of the border? Unless and until someone else comes forward with an alternative way of timelessly guaranteeing an open border, the arrangement proposed is the only conceivable one that is possible for the foreseeable future, until something better comes along. This was quite obvious months ago, and it is quite futile to start protesting about it now.

[Sajid Javid]

I always listen carefully to what my right hon. and learned Friend has to say on all matters. It is correct that this is one way to ensure, in that all-important border, completely frictionless trade, but I do not accept that it is the only way to do that. Although it is recognised in the agreement, under the backstop arrangement, that this is a way that clearly has been foreseen by this agreement, there are, as I said a moment ago, potentially other ways that that can be achieved, and it is right that we properly explore all possible alternative arrangements.

--- Later in debate ---

[Ms Abbott]

I need to make progress.

The practical effects would be severe. Last year, the UK law enforcement agencies accessed SIS II checks 500 million times. UK authorities requested access to criminal records 3,000 times a week. The danger is that extradition arrangements would fall back on the 1957 European convention on extradition, which proved extremely time-consuming and cumbersome. Most members of the Council of Europe have reserved rights or derogations under the convention, limiting its effect. At worst, the gaps and loopholes created under this exit agreement could create a situation in which organised criminals and terrorists in the EU might come to regard the UK as a relative safe haven from justice. Under this agreement, absent any significant change to the issues I have enumerated, ongoing co-operation in cases and investigations may ultimately be compromised. On the basis of security concerns alone, no Member of the House should be signing off this deal.

[Mr Kenneth Clarke]

The right hon. Lady gives a very accurate list of consequences that follow from leaving the European Union, which is why my right hon. Friend the Home Secretary deftly avoided the question, “Is it not inevitable that the arrangements of this country for security and the fight against international crime will be weaker once we have left the European Union than when we were in it?” As the right hon. Lady has committed her party to leaving, will she explain how Labour believes that it can negotiate anything other than this between now and next March? The Labour party has no remedy for this, unless it is thinking of reopening the question of our membership of the European Union.

[Ms Abbott]

As I said earlier, one problem in these negotiations, and one reason why they have not gone further, is the Prime Minister’s reckless red lines, particularly on the ECJ. However, let me return to the issue of immigration.