Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Clarke of Nottingham and Lord Bishop of Bristol

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Clarke of Nottingham (Con)]

My Lords, I support these amendments, which seem to me to go to the heart of the most extraordinary feature of this Bill. It is essentially intended to reverse a legal defeat the Government suffered in the British Supreme Court on a matter of law. Five Supreme Court judges listened to the evidence and decided as a matter of fact that Rwanda is not, at the moment, a safe country for the purposes we are discussing.

The Government have reacted to that judgment in a way no other disappointed litigant could possibly have contemplated. They have decided to invoke the sovereignty of Parliament and to ask both Houses to pass legislation that declares that the facts are indeed contrary to those which the Supreme Court declared to be the factual situation. The facts are to be regarded as the facts the Government state for the indefinite future, whatever happens from now on, unless or until this legislation is amended or repealed—if it ever is. I spoke at Second Reading, so I will not repeat all the arguments I made then, but I continue to be completely flabbergasted by the constitutional implications of the Government acting in this way.

Has the Minister been able to find any precedent for this occurring? Have any Government in a similar situation ever decided to reverse any legal defeat by just passing legislation saying, “The facts are what we say they are, not the facts the Supreme Court has found on the evidence”? I think it unlikely. For that reason, it is an extremely dangerous precedent. For that reason, I very much hope that there will be a legal challenge that will enable the Supreme Court to strike it down as unconstitutional in due course. But the better step would be for Parliament not to pass the legislation in the first place.

Finally, the most striking feature is that the legislation declares the facts to be the facts from now on, so long as it remains on the statute book, regardless of future events. Let us say that a situation arises which I very much hope does not, given that the Rwandan Government are one of the more attractive, by comparison, of African Governments. But say a coup were to occur in Rwanda and the present, fairly benign dictator were to be replaced by a much more malign dictator. What the Government are asking us to declare is that the courts can be told that Rwanda remains a safe country and they are not to entertain credible evidence that events in Rwanda have occurred which change that situation. It is being laid down as a matter of law for the indefinite future, regardless of whatever startling further facts might emerge which someone might put before a court. I find that completely preposterous. I very much hope that we would never elect a British Government who would be so outrageous as to proceed in those circumstances, but that is the legal position this House is being asked to endorse.

I find it incredible that anyone can really expect a British Parliament, in 2024, to pass legislation of this kind. I ask the Minister to reconsider and to let us know whether the rule of law, the admission of evidence and the consideration of that evidence by British judges might be allowed to function in its normal way, and whether the Government are prepared to reconsider at least the wording and the detail, particularly of Clause 2 of the Bill they have put before us.

[The Lord Bishop of Bristol]

My Lords, my right reverend friend the Bishop of Manchester regrets that he cannot be here today to speak to Amendments 19, 21, 25 and 28 in the name of the noble Lord, Lord Carlile of Berriew, to which he has added his name. I am grateful to the noble Lord, Lord Anderson of Ipswich, for setting out the case clearly, and I am particularly grateful to follow the noble Lord, Lord Clarke of Nottingham, as he has made the case so powerfully.

My right reverend friend and I are concerned, not as lawyers but as citizens, about the constitutional precedent the Bill sets. The role of the judiciary as distinct from the Government and Parliament must not be infringed. Parliament creates laws but judges and juries are responsible for the finding of facts. Where the Supreme Court has ruled that Rwanda is not safe, it is an abuse of Parliament’s powers, as we have just heard, for it to attempt to declare otherwise. We are concerned that the Bill represents a dangerous step. The amendments in the name of the noble Lord, Lord Carlile, therefore attempt to preserve the important principle that facts should be considered by the courts. We must surely be able to take into account credible evidence that Rwanda is not a safe country.

It is not unreasonable to consider, as we have just heard, that the situation on the ground in Rwanda might suddenly change, even if the treaty is properly put into effect to take into account the Supreme Court’s concerns. It is surely right that such a change could be considered in law. Not only is this a vital safeguard for potentially vulnerable people at risk of being sent to Rwanda; it is a vital safeguard for our democracy itself. We must be able to take credible evidence into account when managing any policy, be it on Rwanda or anything else, and we must not be in the habit of setting aside court verdicts we do not like by bringing forward legislation.

My right reverend friend the Bishop of Manchester has also added his name to the proposition put forward by the noble Viscount, Lord Hailsham, that Clause 2 should not stand part of the Bill. Removing this clause would remove the requirement that all decision-makers must treat Rwanda as a safe country. The amendments to which I have already spoken try to mitigate the implications of legislating that a country is safe ad infinitum, but in truth the courts, immigration officers and tribunals need the capacity to consider the facts about whether Rwanda is a safe country in general. Removing the clause altogether is the best way to do this and to maintain independent judicial oversight. My right reverend friend and I agree that this principle is fundamental to the rule of law and access to justice.