Safety of Rwanda (Asylum and Immigration) Bill

Lord Falconer of Thoroton Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

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

[Lord Stewart of Dirleton (Con)]

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

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

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

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[Lord Anderson of Ipswich (CB)]

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

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

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

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

[Lord Falconer of Thoroton (Lab)]

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

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

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

[Lord German (LD)]

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

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

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

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

the mechanism in the Bill here—

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

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

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[Lord Stewart of Dirleton (Con)]

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

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

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

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

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

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

[Lord Falconer of Thoroton (Lab)]

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

[Lord Stewart of Dirleton (Con)]

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

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

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[Lord Falconer of Thoroton (Lab)]

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

[Lord Stewart of Dirleton (Con)]

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

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[Viscount Hailsham (Con)]

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

[Lord Falconer of Thoroton (Lab)]

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

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


Article 24 of the agreement says:

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


that is, the parties to the agreement—

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

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

[Lord Murray of Blidworth (Con)]

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

[Lord Falconer of Thoroton (Lab)]

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

[Lord Scriven (LD)]

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

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

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

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

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

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

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[Lord Sharpe of Epsom (Con)]

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

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

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

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

[Lord Falconer of Thoroton (Lab)]

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

[Lord Sharpe of Epsom (Con)]

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

[Lord Falconer of Thoroton (Lab)]

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

[Lord Sharpe of Epsom (Con)]

Yes, I can certainly undertake to do that.

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

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

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

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

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

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

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


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

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

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

Safety of Rwanda (Asylum and Immigration) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting the Minister, but are we right to understand that he is saying that there will be no deportations to Rwanda until the monitoring committee is up and running?

[Lord Sharpe of Epsom (Con)]

As far as I understand it, that is the case.

On a point that we will debate further in relation to Amendment 76A tabled by the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Hamwee, during the period of enhanced monitoring, the monitoring committee will report to the joint committee in accordance with an agreed action plan to include weekly and bi-weekly reporting as required. It will otherwise produce a formal written report for the joint committee on a quarterly basis over the first two years of the partnership, setting out its findings and making any recommendations.

The monitoring committee will be supported in all its work by a new support team—

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[Lord Sharpe of Epsom (Con)]

I am happy to commit to providing as much detail as I can in the letter that the noble Lord requests. I am afraid that I do not know the answer to the foreign development aid question, so I will have to look into that and come back to him.

With regard to Amendments 35 and 90 in the name of the noble Lord, Lord German, it is right that this Bill should apply to anyone arriving after the Rwanda treaty enters into force. It is the treaty, working together with the provisions in this Bill, that underpins the safety of Rwanda. As such, once the treaty is in force the basis for removal under this Bill is established. Clause 9(1) ensures that the Bill and the treaty come into force on the same day. This legislation builds on the Illegal Migration Act 2023, the Nationality and Borders Act 2022 and other immigration Acts. To the extent that those Acts have retrospective effect, this Bill does nothing to change that.

Accommodating migrants in hotels is costing us £8 million each day. That is billions per year, which is clearly not sustainable. If people know that there is no way for them to stay in the UK, they will not leave safe countries such as France to risk their lives and pay criminals thousands of pounds to arrive here illegally. It is therefore only right that we stop the boats and break the business model of the criminal gangs who exploit vulnerable people. The Government consider this partnership to be a vital investment and therefore I invite the noble Lord to withdraw his amendment.

[Lord Falconer of Thoroton (Lab)]

My Lords, the noble and learned Lord, Lord Stewart of Dirleton, indicated in an earlier amendment that the Government would say how Parliament was going to keep its judgment that Rwanda was a safe country under review because circumstances could change. He was going to tell us, but then said that it was going to come in a later amendment. I indicated, at the beginning of this group, which was adjourned from Wednesday, that we were assuming that it would be the noble Lord, Lord Sharpe of Epsom, on this amendment, who was going to tell us how Parliament was going to keep its judgment under review. If it will be in a later amendment, by all means say, but if it is intended to be under this amendment, can the Minister tell us how Parliament is to keep the judgment that it is said we are about to make under review going forward in the future?

Separately from that question, the Minister dealt very shortly with retrospectivity. Does he agree that this Act applies to people who arrived in this country and made a claim for asylum before the Act came into force—and therefore applies retrospectively to them? If it does, what is the Government’s justification for retrospective legislation?

[Lord Sharpe of Epsom (Con)]

Well, my Lords, I recollect the discussion last week between the noble and learned Lord and my noble friend Lord Wolfson. I think my noble friend pointed out that the right to asylum is not a vested legal right—that there is a right to asylum, but not necessarily in the UK. The Government have consistently won in the courts on the point that you can send somebody to another country for asylum—so this is not, in effect, retrospective legislation. As the noble and learned Lord will be aware, I am not a lawyer, but it seemed to me to make some sense when my noble friend was making the argument, so I suggest we go back to that in this case.

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[Lord Falconer of Thoroton (Lab)]

Do I take it, then, that the Government’s position reflects the speech made by the noble Lord, Lord Wolfson?

[Lord Sharpe of Epsom (Con)]

No, but I think that the noble Lord, Lord Wolfson, summed up the Government’s position rather well, and probably better than I can. I am afraid that we will have to return to the first question asked by the noble and learned Lord in a later group.

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[Baroness Chakrabarti (Lab)]

My Lords, it is a pleasure, as always, to follow the noble Lord, Lord Carlile. On this occasion, it is fortuitous to follow him because—without repeating the brilliant points made by the noble and learned Lord, Lord Etherton, and my noble friend Lord Cashman, about the safety of Rwanda for particular groups, which are echoed in my noble friend Lord Dubs’ amendments on religious freedom—he pre-empts a point I want to emphasise about the false binary the Government appear to be creating in Clause 4, for example.

As someone who has worked with the refugee convention for about 30 years, I feel that something is missing—well, there are many things missing, but there is something particularly dangerous about tying the hands of decision-makers in the way proposed, be they the Secretary of State, Border Force, or judicial decision-makers in particular. There is a false binary, which the noble Lord, Lord Carlile, began to outline. At one end of the spectrum, the country is particularly dangerous for Josef K, not other people in Josef K’s family or political party, or in another social group. The language of the Bill uses the following adjectives:

“compelling evidence relating specifically to the person’s particular individual circumstances”,

At the other end of the spectrum—the false binary the Bill proposes—is the general safety of Rwanda, the Bill’s definition of which includes safety from refoulement in particular. Of course, any refugee lawyer or anyone with experience of dealing with asylum anywhere in the world will tell you that, for a great many refugees, the crucial issue—forget the false binary—is membership of a persecuted social group. Those are the social groups highlighted by these amendments, but they could be other political or ethnic social groups, and so on.

On an ordinary reading of this extraordinary draft statute, I have no doubt that even this odd formulation of the specificity of the person’s “particular individual circumstances” would be construed by a court as including membership of a social group. That would be a normal reading of even this draft provision. However, because of all of that odd stuff in Clause 1 about the purposive construction the Government propose—disapplying the common law, disapplying the Human Rights Act and so on—there is now a real question mark about whether social groups are included for the purposes of Clause 4, for example.

To be fair to the Minister, in his letter, which I read, the clear indication is that social groups would be covered, because HJ (Iran) and gay people who are persecuted are alluded to. But, with respect, if that is the case, in the light of the very odd formulation of this draft statute, the noble and learned Lord, Lord Etherton, and others have done the Government an enormous favour. At the very least, they ought to agree to the amendments proposed by the noble and learned Lord. Otherwise, I fear that, because of all these straitjackets in the Bill upon decision-makers, including the Secretary of State, let alone the judiciary—we will come to it later—the Government may find that they are sending people to Rwanda in circumstances where they do not want to, and contrary to the Minister’s letter. For those reasons, I support the amendments in this group.

[Lord Falconer of Thoroton (Lab)]

My Lords, I strongly support the amendment of the noble and learned Lord, Lord Etherton, which he moved almost unanswerably. I agree with the support given to it by my noble friend Lord Cashman, and I support his proposal of the amendment of my noble friend Lord Dubs.

The specific point my noble friend Lady Chakrabarti made is key. I can understand the idea that Rwanda is not a safe country in general because it has no adequate system of addressing asylum seekers and is willing to refoul people irrespective of the merits. I strongly agree with my noble friend when she says that, if a person—for example, a member of the LGBTI+ community—says, “I would not be safe if I were sent back to Rwanda”, that relates specifically to their “particular individual circumstances”, which is the language of the Bill.

The purpose of the noble and learned Lord’s amendment, and of that of my noble friend Lord Dubs, as proposed by my noble friend Lord Cashman, is not to determine in this House whether Rwanda is safe for LGBTI+ people; it is to ensure that, if there is a question mark over that issue—if somebody asserts that, because they are a member of the LGBTI+ community, the Minister is not tied by determining that Rwanda is a safe country—the courts would then consider the question.

Key to the House’s determination of these amendments is the Government’s view of what the Bill, particularly Clause 4(1), means. In responding to the noble and learned Lord’s amendment, can the noble Lord, Lord Sharpe of Epsom, tell us whether, if a member of the LGBTI+ community asserts that Rwanda is not safe for gay people, a Minister can take that into account under Clause 4 in relation to that person? Can he indicate whether, if that applicant disagreed with a Minister’s conclusion, they could go to the courts? We need to know that to determine whether we need to put the noble and learned Lord’s amendment on the statute book.

[Lord Scriven (LD)]

My Lords, I support the amendments in this group and seek to tease out a couple of answers from the Minister on these issues. Under the 1951 refugee convention, membership of a particular social group is one of the reasons forming a guard for people to be able to claim refugee status. One would therefore assume that Rwanda, which has signed up to the treaty, would grant asylum to people who are LGBT based on their being a member of that social group. The Government aim to send people who have arrived here via illegal routes, who may be LGBT, to be processed for asylum in Rwanda. I do not know whether noble Lords or the Minister have read the latest Human Rights Watch country report on Rwanda, but it points out that there is a systematic refusal by the Rwandan authorities to grant asylum to those who have fled their home countries because of persecution on the grounds of their sexual orientation or gender identity.

What due diligence have the Government done in claiming that Rwanda is a safe country, and in ensuring that the way it deals with asylum claims from LGBT refugees is equal to the way it does so for others? What is the refusal rate compared to those seeking asylum in Rwanda who are not LGBT individuals? If the Minister cannot answer those questions, there is no way that the Government can claim as a matter of fact that Rwanda is a safe country for those seeking asylum there, given that asylum claims seem to be turned down, according to Human Rights Watch, on the basis of sexuality or gender identity.

The Government have not referred to their own impact assessment on the first treaty, the memorandum of understanding with Rwanda, from May 2022. It said that the Home Office was concerned about the treatment of LGBT people in Rwanda and that cases of “ill treatment” towards this group were “more than one off”. What has changed between May 2022 and the impact assessment for this Bill, which says that ill treatment of LGBT+ people in Rwanda no longer takes place and that these “more than one off” issues of discrimination and ill treatment have stopped?

Finally, I turn to the amendment of the noble Lord, Lord Dubs. The latest US Report on International Religious Freedom on Rwanda shows clear evidence of discrimination against certain religious practices, even though the laws of Rwanda protect religious freedom. Examples are cited, including that pressure has been put on religious leaders and organisations on multiple occasions when that religious leader or organisation criticises the Rwandan Government’s policy. Recently, the Muslim community has been targeted about its call to prayer practices and has had a number of repressive actions taken against it by the Rwandan police. Noble Lords should remember that many of the people arriving on our shores via irregular routes are of Muslim faith, coming from Muslim countries. I ask the Minister what assessment has been done on religious freedom. Have the Government come across the issues that the US Report on International Religious Freedom has identified? What commitments have they got from the Rwandan Government that these kinds of practices will stop?

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[Lord Stewart of Dirleton (Con)]

My Lords, any work being done to improve a place is desirable of itself.

[Lord Falconer of Thoroton (Lab)]

Does the Minister still stand by the assurance from the noble Lord, Lord Sharpe of Epsom, that nobody will be deported to Rwanda until the monitoring committee is up and running? He is talking as though people will start to be deported the moment this Bill passes, which is not what the noble Lord, Lord Sharpe, led us to believe.

[Lord Stewart of Dirleton (Con)]

My noble friend Lord Sharpe confirmed to me a moment ago that the monitoring committee is already operational; it is up and running.

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[Lord Stewart of Dirleton (Con)]

Whether or not we as a country voted for him to take his place does not exclude the possibility of disagreement with anything that any official, be he ever so high, may have to say.

[Lord Falconer of Thoroton (Lab)]

I am encouraged by the noble and learned Lord’s statement that the monitoring committee is up and running. He will know that the international treaties committee of this House said that

“the implementation of the Treaty requires not just the adoption of new laws, systems and procedures, but also the recruitment and training of personnel. For example, the Monitoring Committee has to recruit a support team”.

Are we to take it that the Minister is saying the committee has indeed already recruited a support team? If not, it is very difficult to see how it could be described as “up and running”.

[Lord Stewart of Dirleton (Con)]

That is the information given to me, but I am happy to look into the matter to reassure the noble and learned Lord.

[Lord Falconer of Thoroton (Lab)]

Is it that it has recruited a support team, or that it is up and running?

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[Lord Falconer of Thoroton (Lab)]

But it is absolutely clear from the policy statement, and from answers that the Home Secretary gave to the international treaties committee of our House, that the position is not complete in Rwanda until it implements new Rwandan asylum legislation, which has not yet been passed. The Home Secretary was specifically asked when that legislation would be passed by Rwanda, and he was unable to give a timeframe. For the noble and learned Lord to say that Rwanda is now safe, when even the Home Secretary accepts that this law has yet to be introduced in Rwanda, seems to completely contradict the Government’s position. I ask him to reconsider the answer to the question: are the Government saying that Rwanda is now safe, without that legislation in Rwanda?

[Lord Stewart of Dirleton (Con)]

I think the terms of Article 9 of the treaty are clear. The Act comes into force the day that the treaty comes into force. As to the specific Rwandan legislation to which the noble and learned Lord refers, I am not able to give a categorical answer from the Dispatch Box.

[Lord Stewart of Dirleton (Con)]

The answer to the former is that it does not fall to me to read the Rwandan legislation; but, given that decisions are taken collectively by the Government, I can answer the noble Lord’s second question in the affirmative.

[Lord Falconer of Thoroton (Lab)]

The Advocate-General for Scotland may not be the right person to express a view in relation to Rwandan legislation, but I assume that somebody in the Government has seen a draft of this legislation. Could he indicate who that is and what that person’s opinion is?

[Lord Stewart of Dirleton (Con)]

My Lords, I will look into that. Presumably, the Foreign, Commonwealth and Development Office will take this matter under its wing. The noble Baroness, Lady Chakrabarti, refers to the Home Office. We will look into that and provide the noble and learned Lord with an answer.

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[Lord Stewart of Dirleton (Con)]

My Lords, what I have said was that I have not seen the Home Office legislation. I have not been called upon to review it.

[Lord Falconer of Thoroton (Lab)]

My Lords, I would be keen to know what is the basis for the noble and learned Lord’s assertion that Rwanda is safe, which he is putting forward on behalf of the Government.

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[Lord Stewart of Dirleton (Con)]

My Lords, the treaty guarantees that anyone relocated to Rwanda will be given safety and support and will not be returned to a country where their life or freedom will be threatened. That directly addresses the Supreme Court’s concerns about refoulement. As to the matter of the use I made of the word “academic”, I was using that in answer to points raised by noble Lords in relation to why the Bill bars the taking of general points of academic interest, which was referring to a point once the Bill and the treaty are in place. Once they are in place, there is no possibility of refoulement from Rwanda without contravention of an international instrument. The point is that, at that stage, argument before the domestic courts would be academic. I give way to the noble Lord.

[Lord Falconer of Thoroton (Lab)]

I do not think that the Minister has taken on board what the noble Lord, Lord Purvis, asked him. Article 10(3), which is the provision in the treaty that allows relocation only back to the UK, contains the following phrase:

“The Parties—”


that is, Rwanda and the UK,

“shall cooperate to agree an effective system for ensuring that removal contrary to this obligation—"

the obligation being to remove only to the UK—

“does not occur”.

The parties have not yet agreed that. The parties, the UK and Rwanda, therefore accept that, currently, there is not in place an effective system for ensuring that removal contrary to the obligation only to remove to the UK exists. Could the Minister please explain to the Committee how he can possibly say that, at the moment, under the agreement—that is the overarching agreement, not the agreement to agree an effective system for ensuring non-refoulement—such safeguards currently exist? We need an explanation for that.

[Lord Stewart of Dirleton (Con)]

My Lords, the point is that the treaty, while it has not been ratified, is a matter of agreement. I spoke about the work—

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[Lord Stewart of Dirleton (Con)]

That is a decision not for me to take. It will be taken by the Government collectively. I am not in a position to give a date to the noble Lord, if he was asking me to give one. In the circumstances, I cannot supply him with any further information.

[Lord Falconer of Thoroton (Lab)]

The Minister just referred to the independent experts who are going to help the Rwandans in relation to their processing of claimants. Our International Agreements Committee said those independent experts have yet to be appointed. Could he give the House an indication of how the appointment process is going? How many have been appointed, and when?

[Lord Stewart of Dirleton (Con)]

My Lords, that is a matter of detail upon which I will have to correspond with the noble and learned Lord.

The Government of Rwanda are committed to this partnership. Like the UK, they are a signatory to the refugee convention and have an international obligation to provide protection to those who are entitled to it. The Bill is predicated on the compliance by both Rwanda and the UK with international law in the form of the treaty, which itself reflects the international legal obligations of the UK and Rwanda.

Taking together the strengthened Rwandan asylum system and the commitment set out in the legally binding treaty—which, once ratified, will become part of Rwandan domestic law—it is unnecessary for a decision-maker, whether that be an immigration officer or a court, to consider any claim made on the ground that Rwanda may remove a person to another state. Furthermore, as I said earlier, that would delay unnecessarily the relocation of individuals to Rwanda, thereby undermining the core of the Bill.

For the reasons outlined, I respectfully ask that noble Lords do not move their amendments.

[Lord Falconer of Thoroton (Lab)]

My Lords—before the Minister sits down—it becomes crucial to know when this Act will come into force. This is not a personal observation, but the Minister has given the most unsatisfactory series of answers about what the position is in Rwanda. Clause 9 of the Bill says:

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


On Wednesday, I took the Minister through what the statement and the agreement suggest, which is that the Bill comes into force when the steps required for ratification are completed by both countries. The only step required for ratification that is referred to in the policy statement made by the Government, as far as the UK Government are concerned, is the passage of this Bill. So it appears that the Government are envisaging that, almost automatically on the passage of the Bill, they will treat the agreement as ratified. The consequence is that the Bill will immediately come into force. If that is right, it is pretty obvious that the Bill will become law and the Government can deport people to Rwanda when the safeguards are not in place. Could the Minister confirm that my understanding of when the Bill is going to come into force, which I set out in detail last week, is correct?

[Lord Stewart of Dirleton (Con)]

I cannot go beyond the terms of the clause to which the noble and learned Lord refers. Clause 9(1) states:

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

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[The Lord Bishop of Chelmsford]

My Lords, I too support Amendments 54 and 55, to which I have added my name. I thank the noble Baroness, Lady Lister, and the noble Lord, Lord Dubs, for giving us the opportunity to ensure that the voice of the child is heard in this debate. For we should never forget that both accompanied and unaccompanied children, and those who may well be found to be children, are in the scope of the Bill, which the Government cannot confirm is compatible with convention rights under the ECHR. I spoke earlier in Committee on the universality of human rights, but to remove children from their reach is simply unforgivable. For this reason, I repeat the noble Baroness’s request that a children’s rights impact assessment be published as a matter of urgency.

I believe strongly that changes are needed to Clause 4 if we are to ensure that the welfare and best interests of children are protected. For safeguarding is not a discretionary requirement, and the UK is legally obliged to protect and promote the interests of the child. The fundamental issue that Amendment 55 seeks to address is that the treaty itself excludes unaccompanied children from the partnership agreement, while acknowledging that they may be sent to Rwanda erroneously. This contradiction means that the treaty, in a section entitled “Part 3—General”, provides only vague information about Rwanda’s plans to safeguard children, a group surely more vulnerable than any other we could possibly imagine.

It is not my place to doubt the sincerity of the Rwandan authorities’ commitment to providing child-suitable safeguards, but good intent is no basis for safeguarding, and sending children before the treaty is fully implemented would be a dereliction of our duty to them. This, combined with leaving a potential child with no suspensive legal redress against their removal, is simply unconscionable. If the treaty has identified the risk of sending a child to Rwanda in error, why has no mitigation been put in place? Has it been decided that the risk is tolerable, regardless of all the anguish and trauma it would cause to a child? Can the Minister assure us that all children would be returned in these circumstances? Although it is in the treaty, it is not a legal obligation in the Bill.

The Home Office’s own figures, although incomplete—they do not include the number of children moved into an adult setting—indicate that, last year, 60% of all resolved age dispute cases found the young asylum seeker to be a child. This point was well made by the noble Baroness, Lady Lister, but I will emphasise it because of its importance. There are 2,219 children without a parent or guardian, who, if the Bill had been in operation, may have been eligible for removal to Rwanda if a full assessment had not been completed. I therefore ask the Minister: what assessment has been undertaken to evaluate the impact of removing a potential child from the UK’s child support services, and then from the UK entirely, before awaiting the conclusion of all outstanding age assessment challenges?

Age assessments are complex—again, we have already heard this—and therefore it is understandable that visual age assessments by immigration officers can lead to inaccurate judgments. I will not repeat the quote from the Home Office’s guidance on this. Given that errors are an inherent part of the age-verification process, can the Minister reassure us that, at the very least, when an individual’s age is disputed, they will not be subject to removal before having met with a social worker and child protection team for a more comprehensive age assessment?

Under the Bill, the repercussions of inaccurate age assessments are disastrous. Even if a child were to be returned to the UK after they were verified to be a minor, the impact would be devastating for their physical and mental well-being, and it would likely leave an imprint on them for the remainder of their life. The amendment proposed does not hinder the Government’s objective to begin the transfer of asylum seekers to Rwanda, but it ensures that there has been a definitive determination of a person’s age before their removal. It supports the Government in meeting the treaty commitment.

The determination that a young person may be a child, and therefore could deserve all the rights of a child, should and must be reason enough to prevent their removal. A child is a child, regardless of whether they remain with their family or not. Amendment 54 simply seeks to maintain a current safeguard when a child is being considered for removal, which requires the Home Secretary to consult with the Independent Family Returns Panel to ensure that their safeguarding needs are appropriately met. Section 14 of the Illegal Migration Act, which is not yet in effect, disapplied this safeguard.

I do not believe that children seeking safety in the UK should face removal to Rwanda. But, at the absolute minimum, the process should ensure that their welfare and best interests are considered, and maintaining a role for the panel would help facilitate this. If the Government proceed to send minors to Rwanda without appropriate safeguards, vulnerable children will undoubtedly face an intolerable level of emotional distress. I therefore implore the Government to give the utmost consideration to these reasonable and principled amendments.

[Lord Falconer of Thoroton (Lab)]

My Lords, I strongly back the amendment of my noble friend Lady Lister, supported by the noble Baroness, Lady Neuberger. I am unclear at the moment about whether the Government are saying that they will do this anyway, even though it is not in the Bill, on the basis that there appears to be a commitment on the part of the Government not to deport any unaccompanied child to Rwanda. Despite the exclusion of anybody, including the Home Secretary, saying Rwanda is not safe, that necessarily involves the Government having a process in mind for how they will deal with any unaccompanied person who comes to this country and says that they are under 18. Can the noble Lord set out for the Committee the process that will be applied and the basis for dealing with an unaccompanied minor saying that an age assessment is wrong and that he or she is under 18? Will there be a right to go to a tribunal or any other court to contest that? If there is not some such process, I am not clear how the Home Secretary can be sure he will comply with his assurance that he will not be deporting unaccompanied minors to Rwanda.

[Baroness Mobarik (Con)]

My Lords, I support Amendment 55, in the name of the noble Baroness, Lady Lister of Burtersett, supported by the right reverend Prelate the Bishop of Chelmsford and the noble Baronesses, Lady Neuberger and Lady Brinton. I also support Amendments 78 and 79, in the name of the noble Lord, Lord Dubs, supported by the noble and learned Baroness, Lady Butler-Sloss. These amendments relate to children who arrive in the UK alone, unaccompanied by any adult.

Lone children have no one. They are some of the most vulnerable members of our society, and their welfare and best interests should be safeguarded. I am glad to see that it is not the intention of the Government of this country or of the Government of the Republic of Rwanda for this scheme to cover unaccompanied children. Article 3 of the Rwanda treaty is clear, stating:

“The Agreement does not cover unaccompanied children”.


Therefore, on my reading, this amendment helps safeguard that intention while upholding the best interests of such children.

If the agreement with Rwanda does not cover unaccompanied children, it seems to me common sense that the United Kingdom should make sure that it is not sending unaccompanied children to Rwanda. The constitutionally proper way for us to be sure of that is after an assessment that an individual is an adult, to allow our courts and tribunals to have an opportunity to fully consider whether an individual is an unaccompanied child, as they claim to be, before the individual is removed.

The safeguard this amendment seeks to maintain and restore is nothing more than due process. I am certain that your Lordships’ House does not wish to see children forcibly sent to Rwanda on the mistaken belief that they are adults, or to allow them to be wrongly treated as adults in Rwanda, potentially placed in accommodation that is unsafe and unsuitable for them, only to have our courts subsequently confirm they are children and order that they be brought back to the UK.

It appears to me that the Government are conscious that mistakes may happen, because Article 3 of the Rwanda treaty also states:

“Any unaccompanied individual who, subsequent to relocation, is deemed by a court or tribunal in the United Kingdom to either be under the age of 18 or to be treated temporarily as being under the age of 18, shall be returned to the United Kingdom in accordance with Article 11 of this Agreement”.


That is a wholly unsatisfactory state of affairs, and it is not in the best interests of the children concerned.

That is not only my view but the view of the Joint Committee on Human Rights, which stated last year that Section 57 of the Illegal Migration Act 2023 was

“clearly not in the best interests of any child and is likely to breach the child’s rights under Articles 6, 8, and 13 of the ECHR”.

Those rights are to a fair trial, to respect for private and family life and to an effective remedy.

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[Lord Sharpe of Epsom (Con)]

My Lords, the Government fundamentally disagree with that; we do provide protection for children. As I said, I will come back to the noble Baroness’s specific points. Any decision—

[Lord Falconer of Thoroton (Lab)]

I apologise for also intervening. I was very interested in much of the answer that the Minister gave, and I am genuinely grateful to him for doing his best on this. He said that a judicial review could be taken against the Government where somebody asserts that he or she is under 18, but they have deemed him or her to be over 18. That can be challenged by a judicial review. So, presumably, the courts could stay the deportation until the conclusion of the judicial review. Is that right?

[Lord Sharpe of Epsom (Con)]

No. As I understand it, the judicial review will take place when a person has been relocated to Rwanda.

[Lord Falconer of Thoroton (Lab)]

I am very interested in that answer, too. Surely that is not right. If a judicial review is possible, it is a matter for the court to decide, in its discretion, whether it should give interim relief pending the conclusion of the judicial review. For example, if it took the view that the person who brings the judicial review would be harmed by being sent to Rwanda before a conclusion of the judicial review, the court would have the power to stay it pending the hearing of the judicial review. There is nothing that I see in this Bill that would prevent that. If there is, could the Minister refer me to it?

[Lord Sharpe of Epsom (Con)]

I have to respect the noble and learned Lord’s point of view on that; I am afraid that I am not as well up on the court process as perhaps I should be. I will have to come back to him, if he will allow me to do so.

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[Lord Sharpe of Epsom (Con)]

My Lords, I cannot give details on the very specific question about traumatised children but I will find out, and again, I will come back to the noble Baroness.

Amendments 78 and 79, tabled by the noble Lord, Lord Dubs, seek to prevent the relocation of unaccompanied children aged under 18 from the UK to the Republic of Rwanda. The Government consider these amendments unnecessary. The noble Lord, Lord Dubs, will be aware that Article 3 of the UK-Rwanda treaty makes specific reference to unaccompanied children not being included in the treaty and that the UK Government will not seek to relocate unaccompanied children under 18 to Rwanda.

Amendments 46 and 56, also tabled by the noble Lord, seek to ensure that a person previously recognised as an unaccompanied child has the ability to challenge their removal to Rwanda when they cease to be an unaccompanied child at 18, on the basis that removal would be contrary to their rights under the ECHR. Our asylum system is under increasing pressure from illegal migration and the Government must take action to undercut the routes smuggling gangs are exploiting by facilitating children’s dangerous and illegal entry to the United Kingdom, including via such dangerous routes as small boats. These amendments would increase the incentive for adults to claim to be children and would encourage people smugglers to pivot and focus on bringing over more unaccompanied children via these dangerous journeys. The effect would be to put more young lives at risk and split up more families.

The noble Baroness, Lady Brinton, asked a number of questions about the educational opportunities that will be available under the arrangements with Rwanda. I refer the noble Baroness to paragraph 5 on page 3 of the Second Reading letter that I wrote, which details some of those. However, education is also dealt with in paragraph 8 in Annex A to the treaty, and I can go through some of that if it would be helpful. It is headlined “Quality education”, and 8.1 says:

“To support successful integration (and in accordance with the Refugee Convention) … each Relocated Individual shall have access to quality education and training at the following stages (as relevant to their age and needs) that is at least of the standard that is accorded to Rwandan nationals: … early childhood … primary education … catch up programmes and accelerated learning, that is, short-term transitional education programmes providing children with the opportunity to learn content that they may have missed due to disruption to their education or their having never had access to education … secondary education … tertiary education … and … vocational training”.


In addition:

“Rwanda shall recognise foreign school certificates, diplomas and degrees as provided for by MINEDUC regulations”.


I think I also referred in an earlier group to the initial investment of £120 million in 2022 as part of the economic transformation and integration fund, which was created as part of the MEDP. I said then, and I will reiterate for the record now, that the ETIF is for the economic growth and development of Rwanda, and investment has been focused in areas such as education, healthcare, agriculture, infrastructure and job creation.

The Government recognise the particular vulnerability of unaccompanied children who enter the UK by unsafe and illegal routes. It is for this reason that unaccompanied children are not considered for third-country inadmissibility action under the current guidance. Furthermore, the duty to remove in the Illegal Migration Act does not require the Secretary of State to make removal arrangements for unaccompanied children until they turn 18, at which point they will become liable for removal as an adult, either to their home country if safe to do so, or to a safe third country.

In answer to this debate more generally, it seems self-evident—I think my noble friends Lady Lawlor and Lord Murray, and the noble Lord, Lord Green, pointed this out—that a child’s best interests are best served by claiming asylum in the first safe country that they reach. I therefore respectfully ask the noble Baroness to withdraw her amendment and other noble Lords not to press theirs.

[Lord Falconer of Thoroton (Lab)]

My Lords, the Minister did not deal with the question—perhaps understandably—about how this House, which has been constituted as a court by the Government, will get a chance to keep under review the question of whether Rwanda is safe. The noble and learned Lord, Lord Stewart, said it was coming in a later amendment; it has not come in any of the amendments so far. I simply raise it now to ask the Minister: when is it coming? We will end Committee only an hour or two after dinner, so could he give an indication when we might hear the answer to that question, which has been promised on a number of occasions by the Front Bench?

Safety of Rwanda (Asylum and Immigration) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[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.

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[Lord Falconer of Thoroton (Lab)]

I completely agree with that. The Ministerial Code is to be enforced politically, in many respects, not by courts. However, if the position is that it is a breach of international law not to comply with Rule 39, how could a Minister be acting lawfully? I assume that this Government are committed to the rule of law and therefore if it is a breach of international law not to comply with Rule 39—which is what the European Court of Human Rights says, and we are a country that abides by the law—is it not reasonable for that to be struck down on judicial review? I could be wrong about that and would be very interested to hear what the Minister has to say about it.

[Lord Etherton (CB)]

My Lords, I have given notice, with the noble Lord, Lord Anderson of Ipswich, of my intention to oppose the Question that Clause 5 stand part of the Bill. That is because, notwithstanding the eloquence of the noble and learned Lord, Lord Hoffmann, and the noble Lord, Lord Howard, its provisions are in plain breach of the United Kingdom’s obligations under international law and in breach of the rule of law.

Although complications have been cited and expanded on, the reasons for this are very simply stated. Article 32 of the convention states that the jurisdiction of the European Court of Human Rights

“extends to all matters concerning the interpretation”

and

“the application of the convention”.

Critically, in the event of

“dispute as to whether the Court has jurisdiction, the Court shall decide”.

That is an approach that is not unknown to our own law in certain circumstances. Rule 39 of the rules of the European Court of Human Rights provides for the court to make interim orders. 

In Mamatkulov and Askarov v Turkey, to which the noble and learned Lord, Lord Falconer, referred, which was a case decided by the court in 2005, and Paladi v Moldova, decided by the same court in 2009, the European Court of Human Rights said that the failure of a member state to comply with interim measures is a breach of Article 34 of the convention. That article states that member states undertake not to hinder in any way the effective exercise of the right of the court to receive applications from any person.

Reference has been made to a lengthy and elaborate argument in a Policy Exchange document, published in 2023 during the passage of the Illegal Migration Bill, by Professor Richard Ekins, in which he contended that the power to make interim measures was outside the jurisdiction of the European Court of Human Rights. That is the document with which the noble and learned Lord, Lord Hoffmann, expresses his agreement. What is clear is that Article 32 confers on the court the right to determine the extent of its jurisdiction in the event that it is disputed. That article says so in the plainest terms, and, as a member state, we have signed up to that.

What is also indisputable, and is accepted by Professor Ekins, is that since the decision of Mamatkulov in 2005, the European Court of Human Rights has repeatedly upheld the binding nature of Rule 39 interim measures, and the UK Government have never once challenged before the Strasbourg court that decision and the binding nature of interim measures. Indeed, the United Kingdom has not only complied with such measures but called on other states to comply with them. It has supported resolutions and declarations that assume that Rule 39 is legally binding.

International law has, therefore, reached a settled state of practice and agreement between member states and the Strasbourg court. Whatever other course might properly be taken in the future—that could include matters concerning the way in which these orders are dealt with, about which the noble Lord, Lord Jackson, complained—it is clear that it would be a breach of international law and the rule of law for that settled agreement and practice to be peremptorily and unilaterally jettisoned by the United Kingdom acting alone. That is a basic principle of international law.

The wording of Clause 5 reflects similar, but not identical, provisions in the Illegal Migration Act. The challenge by Members of this House to those provisions in that Act were rejected by the Government and voted down in the other place. Should we then just placidly accept them now? I believe that it would be quite wrong to do so. This is yet another example of a blatant breach of the United Kingdom’s legal obligations. The other amendments in this group are worthy attempts to leave Clause 5 in the Bill but, in effect, to neuter its current intent and effect. My contention is that our constitutional role in this House impels us to reject Clause 5 in its entirety, and not provide it with any blanket of legitimacy, either in its current form or with amendments.

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[Lord Stewart of Dirleton (Con)]

I think the answer to the first point is that the Victims and Prisoners Bill relates to victims, a matter on which the Attorney-General, exercising her supervision over aspects of the criminal legal system, would be in a good position to answer. That distinguishes it from this measure. However, that is only my instinctive answer. So as not to mislead the Committee, if the noble Baroness is content then I will write to her on the topic. I am grateful for her nod of agreement. As to whether this should be for Parliament as opposed to the Executive, in the form of the Minister, I can only repeat that the scheme of the Bill and the Government’s intention is that this decision should lie with the Minister responsible.

The noble Lord, Lord Ponsonby of Shulbrede, made two points, the second of which echoed the question anent judicial review posed by the noble and learned Lord, Lord Falconer of Thoroton. Our position is that the decision on the part of a Minister to comply with an interim measure is not amenable to judicial review. His other question related to the views expressed by my honourable friend in the other place the Minister for Immigration about flights taking off as soon as the Bill passes. While this Committee is engaged in detailed legal scrutiny, my honourable friend is speaking in public about the Bill’s policy: to see to it that these flights take off as quickly as possible and the deterrent effect of which my noble friend Lord Sharpe of Epsom and I have spoken should take effect.

[Lord Falconer of Thoroton (Lab)]

Why is it not susceptible to judicial review? Ouster of the courts normally involves at least a provision in a Bill. There is no such provision here. Ousting the courts by a statement from the Dispatch Box in the House of Lords is very unusual.

[Lord Stewart of Dirleton (Con)]

My Lords, I am not in a position to go into detailed discussion on this point, but I have given the Government’s position on the amenability of judicial review in relation to these decisions.

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[Lord Falconer of Thoroton (Lab)]

Could the Minister indicate when he might be in a position to debate it?

[Lord Stewart of Dirleton (Con)]

I undertake to correspond with the noble and learned Lord on that.

Amendments 58, 60 and 61 would bind the United Kingdom Government, preventing a Minister of the Crown or discouraging domestic courts from considering the individual facts of the case or the determination of the domestic courts as to whether a person would face a risk of serious and irreversible harm if returned to Rwanda.

The amendments would also require the United Kingdom courts to take account of an interim measure issued by the Strasbourg court, potentially supplementing the ECHR’s decision, rather than making their own independent finding about whether a person would face a real risk of serious and irreversible harm.

Finally, the disapplication of Section 55 of the Illegal Migration Act would lead to a conflict between the duty to remove established by the Act and the effect of an interim measure issued by the Strasbourg court. That would create uncertainty as to which will prevail.

Clause 4 includes a specific provision enabling the United Kingdom courts to grant an interim remedy preventing removal to Rwanda where it is satisfied that a person would face a real, imminent and foreseeable risk of serious and irreversible harm. Those measures have been designed to ensure that our courts are not out of step with the Strasbourg court; the serious and irreversible harm test is broadly the same that the Strasbourg court applies. Clause 4 would have our courts apply the same test as the Strasbourg court when considering the position of a person who might be sent to Rwanda. There is no reason why the United Kingdom courts, which we would expect to be in possession of all the evidence and facts in the case when making such a decision, cannot be relied upon to reach their own decision rather than being required to have regard to another court which may not have complete information on the case.

The Government submit that these amendments risk hampering or thwarting our efforts to stop the boats and to remove people with no right to remain in the United Kingdom.

There have been references from various quarters about the absence of my noble friend Lord Hailsham today. I indicate to the Committee that he was courteous enough to contact me directly and let me know what the position was. He has tabled Amendment 63, which relates to rules governing Rule 39 procedures. In support of that, the noble Baroness, Lady Chakrabarti, was the first to make inquiries of the Government as to what the position is in relation to the changes in the procedures. I am grateful to the noble Lord, Lord Faulks, who also discussed this. On 13 November 2023, the Strasbourg Court announced proposed amendments to its rules and practice concerning interim measures, including the naming of judges who make the decisions on interim measure requests, interim measures communicated as formal decisions, considering state representations before interim measures are indicated, and parties being able to request reconsideration of an interim measure.

The noble Lord, Lord Faulks, referred to his observations at Second Reading, expressed again today, concerning the differences between procedures when interim remedies are sought in our domestic courts and the case that is hitherto applied in the European court. I do not intend to repeat in any detail the points the noble Lord made. The point was that in relation to that case, as the noble Lord described, there was what amounted to a breach of natural justice, as it would be identified in a domestic court, as the United Kingdom was unable to put its case. As the noble Lord pointed out, in the domestic sphere, a person is able to seek and be granted an interim remedy.

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So he is actually a Minister of the Crown who is not a Minister of the Crown; he is acting in person, so that means, I assume, that you cannot judicially review the decision he has taken, because although he happens to walk into this building as a Minister of the Crown, this decision is taken as though he was sitting in their sitting room in East Cheam or wherever they happen to live.

[Lord Falconer of Thoroton (Lab)]

That is an interesting thought, but I wonder whether it underlays this provision. I had assumed, until the noble Lord spoke, that it is drafted in that way to exclude the Carltona principle—namely, to prevent a civil servant acting in the name of a Minister of the Crown.

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

My Lords, I thank all noble Lords who have spoken in this relatively short debate. Just for the record, I point out that my noble friend Lord Hailsham extended the courtesy of letting me know that he would be unavailable today, which I appreciate.

This legislation builds on the Illegal Migration Act 2023, the Nationality and Borders Act 2022, and other immigration Acts. It does not seek to replicate the provisions of the Illegal Migration Act for other case types. It is limited to the issue of the safety of Rwanda and makes some consequential changes to give proper effect to the presumption that Rwanda is a safe country.

The Government are considering plans for delivery of the provisions of the Illegal Migration Act in light of the Supreme Court judgment. Provisions in the Illegal Migration Act to support removal of people to Rwanda whose asylum and human rights claims are inadmissible will be commenced after Parliament has given its view on the safety of Rwanda.

As drafted, Amendment 67, tabled by the noble Lord, Lord Coaker, asks for information normally used only for internal government planning. This is not information that is normally shared since it is not Parliament’s role to examine the details of internal operational planning, nor is it necessary to meet the Government’s primary objective of ensuring that flights can relocate people to Rwanda.

However, I can confirm that, where claims are declared inadmissible for those who are subject to the duty to remove, the Government will provide support and accommodation in line with Section 9 of the Illegal Migration Act. Furthermore, in response to both Amendments 66 and 67, once the partnership is operationalised and flights commence, as soon as practicable following Royal Assent, removal data will be published online in the usual manner as part of the quarterly immigration statistics.

With regard to reporting on the current location and immigration status of any individuals relocated under the Rwanda treaty, it would be wholly inappropriate for the Government to report on personal data pertaining to the locations of relocated individuals in this manner. We believe that is also unnecessary. As we have set out, the treaty provides that no one relocated will be removed from Rwanda except, in very limited circumstances, to the UK. We have also been clear that anyone relocated who wishes to leave Rwanda voluntarily is free to do so.

The UK and Rwanda will co-operate to ensure that removal contrary to this obligation does not occur, which may include systems for monitoring the locations of relocated individuals. However, this would be with their express consent only and would, of course, not be for wider sharing or publication. This is in addition to the robust monitoring mechanisms already in place via the monitoring committee to ensure the effective operation of the partnership in practice and the well-being of those relocated, the findings of which will be reported in line with the agreed procedures set out in the monitoring committee terms of reference and enhanced monitoring plan, which, as set out earlier in this debate, are published online.

I turn to Amendment 76A, tabled by the noble Lord, Lord Purvis. The terms of reference set out clearly that during the period of enhanced monitoring, the monitoring committee will report to the joint committee, which is made up of both UK and Rwandan officials. This is set out in Article 15(4)(b), in accordance with an agreed action plan, which will include weekly and bi-weekly reporting, as required. As per Article 15(4)(c) of the treaty, the monitoring committee will make any recommendations to the joint committee which it sees fit to do. The monitoring committee will otherwise produce a formal written report for the joint committee on a quarterly basis over the first two years of the partnership, setting out its findings and making any recommendations.

Following notification to the joint committee, the monitoring committee may publish reports on its findings as it sees fit. At least once a year, it will produce a summary report for publication. I have set out that the treaty includes enhanced provisions to provide real-time independent scrutiny of Rwanda’s asylum procedures aimed at preventing the risk of mistreatment contrary to Article 3 of the ECHR before it has the chance to occur. This addresses the findings in the Supreme Court proceedings that under the previous arrangements, as set out in the memorandum of understanding, the work of the monitoring committee would necessarily be retrospective. The treaty further provides at Article 15(9) for the monitoring committee to develop a complaints system that can be used by relocated individuals to lodge confidential complaints regarding alleged failure to comply with the obligations agreed, and that the monitoring committee will investigate all such complaints received directly during the enhanced three-month monitoring period.

Since the partnership was announced, UK officials have worked closely with the Government of Rwanda to ensure that individuals relocated under the agreement will be safe and that their rights will be protected. For example, the treaty sets out at paragraph 3 of Part 2 of Annex B a new process for Rwanda’s first instance body, responsible for making decisions on claims for refugee or humanitarian protection status at first instance. These changes, which will require the introduction of a new domestic asylum law, will move Rwanda’s asylum system to a caseworker model and address the Supreme Court’s conclusions as to the system’s capacity.

The UK Government have already worked with Government of Rwanda to build the capacity of their current asylum system. This work has included agreeing detailed standard operating procedures, reviews of contracts for services the Government of Rwanda have procured—for example, with accommodation facilities and medical insurance companies—and new or revised training programmes. The Home Office has also conducted ground visits, detailed guidance reviews, table-top exercises and walk-throughs to map out the end-to-end process of this partnership and better identify prospective areas for strengthening. This is in addition to ongoing training and capacity building for Rwandan officials within the refugee status determination process. Home Office officials are working on a daily basis with the officials in Rwanda to deliver this partnership.

I do have an answer for the noble and learned Lord, Lord Falconer, as to how the joint committee can report to Parliament. It is not the answer that he will want, but it is all I can say at the moment. The joint committee is due to meet this week, when discussions on treaty implementation will continue. Senior Home Office officials will be in attendance, and I hope to have more to say on this before we get to Report.

[Lord Falconer of Thoroton (Lab)]

The question that is being asked all the time is: how does Parliament keep it under review and raise the question that the country is no longer safe? That is not an answer.

[Lord Sharpe of Epsom (Con)]

I appreciate that it is not the answer that the noble and learned Lord was seeking—

[Lord Falconer of Thoroton (Lab)]

Sorry, but it is not an answer at all to the question: how does Parliament in some way or another keep the question under review? The Minister has given an answer to a completely different question.

[Lord Sharpe of Epsom (Con)]

I do not believe I have, my Lords. What I am trying to say here is that the joint committee has to make reports to Parliament in order for Parliament to keep it under review. That is what is under discussion at the meeting this week. So it does answer the question—perhaps not in the way that the noble and learned Lord would like, for which, obviously, I apologise.

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[Lord Falconer of Thoroton (Lab)]

What steps beyond the passage of this Bill are required for the UK Government to ratify the treaty?

[Lord Sharpe of Epsom (Con)]

Again, I say to the noble and learned Lord that we had a lengthy debate about that a couple of weeks ago on the International Agreements Committee report, and those are the steps that will be required of the Government. Also, as discussed before, the Government of Rwanda still need to pass their new laws in order to be able to ratify the treaty.

[Lord Falconer of Thoroton (Lab)]

I am not sure that is an answer. Apart from the passage of this Bill, which is the only thing that Mr Jenrick’s statement referred to for what was required for the UK to ratify the treaty, what else is required?

[Lord Sharpe of Epsom (Con)]

I am sorry, I disagree. I think I answered the question about what has to happen in order for the treaty to be ratified. It was under discussion at considerable length in the International Agreements Committee debate that we had three or four weeks ago, whenever it was.

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[Lord Faulks (Non-Afl)]

That shows very little faith in a Government of whatever colour. This particular Government will take a view as to whether or not there was a breach of the treaty in relation to the various safeguards contained within it. The Opposition are proposing to repeal the legislation in any event, so the matter might well disappear as a result of such an Act. We must credit the Executive, however, with the power to review and seriously consider if there was a sufficient change of circumstances—a coup, for example—to warrant a different approach.

[Lord Falconer of Thoroton (Lab)]

My Lords, I strongly support the right reverend Prelate the Bishop of Chelmsford in moving the amendment. We have gone through, in some detail, the question of when this Bill is going to become law and whether it will become law before the changes are effected as a result of the new treaty.

Noble Lords will remember that the Home Secretary is asking us to bear in mind the key part of his evidence that the position has changed since the Supreme Court judgment: namely, the treaty for the provision of an asylum partnership, which was laid before this House in December. Obviously, it is only when the provisions of that treaty are implemented that the position will have moved on from what the Supreme Court found, because the Home Secretary quite rightly is not challenging the finding of the Supreme Court; he is saying the position will change when the treaty is given effect to.

Obviously, this House is very sceptical of what Ministers are saying about when the treaty changes take place. Earlier in the afternoon, Ministers were unable to identify when the law in Rwanda would be changed to give effect to it. Ministers were not able to tell the Committee at all when the monitoring committee was going to recruit a support team, independent experts were going to be appointed to advise the first instance body, and all the other things set out in paragraph 19 of the International Agreements Committee report. We have no idea at the moment whether this Bill will be brought into force before the changes envisaged by the agreement and therefore the place will then become safe, so I am very surprised the Government are willing to go ahead with it before the changes are implemented.

That is the beginning. As far as the end is concerned —as this amendment is concerned with—Ministers will be aware that the agreement that gives effect to the changes, which remedies the problems identified by the Supreme Court and accepted as problems by the Government, ends on 13 April 2027, unless the agreement is renewed. I assume, though I invite Ministers to confirm, that if the agreement with Rwanda is not extended beyond 13 April 2027, it is the Government’s intention that the Rwanda Bill will come to an end. If that is not the position, how on earth could the Government contend that Rwanda continued to be a safe country after 13 April 2027?

In any event, the possibility of changes of circumstances are something that Parliament should be able to debate. The two-year sunset clause the right reverend Prelate is proposing is a means by which that debate could take place. Everybody who has debated the Bill in this House agrees it is a very grave thing that the Government are seeking to do by promoting the Bill. The idea that it is a permanent state of affairs that can never be looked at again without the consent of the Executive promoting another Bill is an inappropriate way to deal with it.

For all those reasons, I submit that this Committee should agree to the amendment proposed by the right reverend Prelate. However, I am extremely interested to know what the answer is to the position if this agreement with Rwanda is not extended beyond 13 April 2027.

[Lord Scriven (LD)]

My Lords, I have added my name to this amendment. Because of the lateness of the hour, I will not repeat any of the arguments for why the amendment is needed. I will add an extra point, again looking at the treaty. It was partly alluded to by my noble friend Lord Purvis of Tweed. Amendments to the agreement are by executive order. This Parliament is being asked to say that Rwanda is safe. Rwanda is safe on the basis of this treaty; that is the basis on which this Parliament is being asked to say that Rwanda is safe.

However, Article 20 on amendments to the agreement states:

“This agreement may be amended at any time by mutual agreement between the Parties”.


Therefore, tenets that are deemed to make Rwanda safe based on the judgment of the Supreme Court could, by executive order, be amended. This Parliament would not be able to change its view that Rwanda is safe. The treaty could be changed.

Therefore, when this treaty falls on the date that has been said in two years’ time, it is quite right that this Parliament should therefore be able to look at everything in the round, including any amendments to this treaty, to determine whether Rwanda is still safe. That is why this amendment is needed.

[Lord Sharpe of Epsom (Con)]

Once again, I thank noble Lords who have contributed to this debate. As we have heard throughout today’s debate, we have to do more to break the criminal gangs’ business model, and to deter illegal migrants. These journeys are extremely dangerous. People have lost their lives attempting to cross the channel, as is well reported. These journeys are also unnecessary, as those making these crossings are coming from safe countries, such as France, where they could have claimed asylum. I say respectfully to the right reverend Prelate that that is surely the fundamental issue.

While the Government have made progress towards stopping the boats—with small boat crossings down by a third in 2023, while the numbers of illegal migrants entering some European countries have risen by 80%—we still need to do more. By delivering our key partnership, relocating people to Rwanda and not allowing them to stay in the UK, we will prevent people making these dangerous crossings, and we will save lives.

I thank the right reverend Prelate the Bishop of Chelmsford for tabling Amendment 91, but we do not think it is necessary. It is clear from the evidence pack that the Government published on Thursday 11 January, and from the treaty itself, that Article 15 of the treaty enhances the role of the independent monitoring committee, ensuring that obligations under the treaty are adhered to in practice. I am sorry that I will be going over some old ground, but, as my noble friend Lord Howard pointed out, this is not dissimilar to some earlier amendments.

We have repeatedly made clear that the monitoring committee will have the power to set its own priority areas for monitoring, unfettered access for the purposes of completing assessments and reports, and the ability to publish these reports as it sees fit. Crucially, the monitoring committee will undertake real-time monitoring of the partnership for at least the first three months. This period of monitoring can be extended if required. The monitoring committee will be able to urgently escalate issues prior to any shortcomings or breaches placing a relocated individual at real risk of harm. This will include reporting directly to the joint committee co-chairs within 24 hours in emergency or urgent situations.

To expand on the points made by the noble Lord, Lord Faulks, I also refer the right reverend Prelate to my remarks earlier. Article 4.1 of the treaty sets out clearly that it is for the UK to determine the timing of a request for relocation of individuals under the terms of the agreement, and the number of such requests made. This means that the Government would not be obligated to remove individuals under the terms of the treaty if there had been, for example, an unexpected change to the in-country situation in Rwanda. As is the case in many scenarios, the Government would be able to respond and adapt as necessary and there is therefore no need to include a sunset provision as suggested.

Rwanda has a long history of supporting and integrating asylum seekers and refugees in the region; for example, through its work with the UNHCR to host the emergency transit mechanism. A specific example of Rwanda’s successful work with the UNHCR is the memorandum of understanding between Rwanda and the UNHCR to host a transit facility in Gashora for asylum seekers fleeing civil war in Libya, which has operated since 2019.

The noble and learned Lord, Lord Falconer, is correct: if the agreement is not extended beyond the date he mentioned, in effect, it dies. Rwanda has a strong history—

[Lord Falconer of Thoroton (Lab)]

If the agreement dies, will the future Act die with it?

[Lord Sharpe of Epsom (Con)]

As I understand it, yes.

Rwanda has a strong history of providing protection to those who need it, and it currently hosts more than 135,000 refugees and asylum seekers who have found safety and sanctuary there. The terms of the treaty we have negotiated with Rwanda address the findings of the UK domestic courts and make specific provision for the treatment of relocated individuals, guaranteeing their safety and protection. I invite the right reverend Prelate to withdraw her amendment.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Bellingham (Con)]

I respect enormously what the noble Lord says. I would just push back slightly. The RPF and Kagame have a huge amount of support. They are running a very strong Government and when that Government sign treaties such as this one, I am confident that they will do their best to uphold their terms. I look forward to carrying on and making concords with the noble Lord, and to what the Minister will say in a moment.

[Lord Falconer of Thoroton (Lab)]

My Lords, the power of this debate has been absolutely extraordinary. I think the House very much admires the noble Lord, Lord Sharpe of Epsom—the Minister—who looks to me like a man alone today. I very much hope that he will be able to produce something.

I support all the amendments. Listening to the debate, I was struck by one exchange which the noble Lord, Lord Purvis, started and the noble Lord, Lord Deben, followed up. I have wondered why the Government had drafted the Bill in the way that they have. By that, I have in mind its extraordinary beginning, which says:

“The purpose of this Act is to … deter unlawful migration”.


The next subsection begins “To advance that purpose—”, and then the Bill sets out the fact that this agreement has been entered into. This is obviously not there for political reasons only. It must be there to send a message to the courts that have to construe it. I am assuming—I very much hope that the Minister will confirm this—that it is in there not for political but for legal purposes. It is to send the message to the courts as to what the purpose and framework of the Bill is.

If that is right, I assume that what the courts are supposed to do is to construe this very unusual Bill in the context of its purpose. The courts are being asked, very unusually, to exclude the courts from determining whether Rwanda is a safe country. They are being asked to do that to deter illegal immigration. The exchange between the noble Lords, Lord Purvis and Lord Deben, underlined completely that there are certain categories of people where deterrence never comes into it—for example, the person who is being trafficked or the modern slave.

Presumably, having put all this material into the Bill, the Government intend that the courts should construe it in accordance with its purpose, giving an appropriately targeted meaning to these exclusions of court intervention. If it is absolutely apparent for an individual that deterrence could not possibly be given effect to by the Bill or its terms, obviously its unusual terms do not apply. Can the Minister confirm that the purpose of all these strange provisions—I have in mind Clause 1—is so that the courts have a very clear steer as to what the purpose is, and that they will construe the Bill in accordance with that purpose?

[Lord Purvis of Tweed (LD)]

My Lords, Mary is 19; she is in Gezira, in Sudan, just by the Ethiopian border. She has been offered employment as domestic staff in Dubai and her passport is taken away for the journey. The employment agency that recruited her from the refugee camp—because she is displaced, like many hundreds of thousands in Gezira—have also taken a record of her family and where they are from, including her grandparents, who are in Darfur. En route to Dubai, she is told that she will no longer work in domestic staff with a named family; she is now going to be in hospitality, and she is quite excited about this. However, on the way, she is rerouted to Europe because her agency said that the hospitality company and the family are no longer able to accommodate her, so she has an alternative job. She will now be going to Birmingham in the UK. This is an extremely long journey for her; she has no choice, of course, because she does not have any papers or a passport. Now that she is in a situation where she is really concerned about how she is getting to Birmingham and for her own safety, she is reminded that those who arranged the travel—originally to Dubai, remember—know where her family are. When she arrives, it is not hospitality in Birmingham—it is prostitution.

This Bill, and the Illegal Migration Act, will mean that she is detained in the UK, not referred to any support, and will be sent to a different country. The noble Lord, Lord Horam, thinks that the Bill will deter her from believing the company who recruited her to Dubai, and she will be deterred from coming to Birmingham. The nonsensity of it is quite hard to credit. We have the national referral mechanism for a purpose, which is to ensure that Mary does not become a double victim, but that is no longer an option for Mary. She is just an example, but it is not a theoretical one, and if noble Lords do not believe me, they should believe the noble Lord, Lord Randall, and the excellent work he does, and I hope the Minister was listening careful to his contribution.

According to the latest Home Office data on the arrival on small boats, between 1 January 2018 and 30 June 2023 some 9% were in this category; that is 7,923 people who were referred to the NRM. They are not all Marys; there are many other circumstances, but they follow a very similar trajectory of being lied to, trafficked and blackmailed. The Illegal Migration Act adds an extra sinister element to this blackmail, because Mary would be able to stay in the UK only if she is actively part of the prosecution of the gang in Gezira on the Ethiopian border, which is an impossibility.

The legislation put forward by the Government in the Illegal Migration Act will also no longer be able to be open to Mary. I asked the Minister at Second Reading how the Illegal Migration Act will continue to protect the victims of trafficking—an assertion he made—and he said he would write to me; I have not yet received that letter, so I hope he will be very clear today as to how these people will be protected. As the noble Lord, Lord Deben, said in his powerful contribution, according to Home Office information,

“the majority (78%) of reasonable grounds decisions for small boat arrivals since 2018 have been positive. Of the 780 conclusive grounds decisions issued, 78% were positive”.

These are not people who are gaming a system or, as the noble Lord, Lord Horam said, illegal asylum seekers: they are victims of a heinous crime, many of whom had no idea they would end up as part of a prostitution racket in England.

On Monday, I pressed the Advocate-General on the Government’s official position on whether Rwanda currently has the safeguards in place for those who would be relocated. I remind the Committee that I asked:

“If the Rwandan Government are ‘working towards’ putting safeguards in place, that means they are not currently in place. Is that correct?”


The noble and learned Lord, Lord Stewart of Dirleton, replied, “It must do”. So the Government have said that Rwanda is not safe yet and I say to the noble Lord, Lord Bellingham, that this is not us saying that Rwanda is not safe yet—the Minister said that it is

“working towards having the safeguards in place”.—[Official Report, 12/2/24; cols. 64-65.]

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Many Members of this Committee have been clear that the most worrying aspect of this Bill, setting aside concerns for the safety of vulnerable people, is that it undermines the independent finding of fact by our own Supreme Court. Clause 2 is at the heart of this problem, as it legislates that Rwanda must be treated as a safe country regardless of the judgments of our independent courts. If the clause cannot be removed, amendments must be included to ensure that the courts can take new evidence into account.

[Lord Falconer of Thoroton (Lab)]

My Lords, every time in this Committee you think that the Government cannot be more flattened than they were in the previous debate, they are even more flattened. I refer to the speech of the noble Lord, Lord Clarke of Nottingham, who in my respectful submission completely flattened the Government’s case for not allowing the courts in.

I support what the noble Lord, Lord Anderson, is proposing. As the Committee understands, it means that if somebody challenges whether Rwanda is a safe country in general, the courts must decide on it. The Government are obviously under no illusions about what such a clause would mean. It would not mean that an asylum seeker, every time they were in trouble and might be about to be expelled, could raise the question generally of whether Rwanda is a safe country; it would mean in practice that, eventually, one case in a high Court of Appeal would definitively decide whether at that time Rwanda was a safe country in general or not.

The practical consequence of the amendment from the noble Lord, Lord Anderson, is that the courts will determine once—and maybe again in a few years’ time if the position has changed—whether it is a safe country in general, and everyone else will be bound by that. The Government accept that, if the issue is whether an individual’s circumstances put him or her at risk, they have the right to challenge in court anyway. By refusing to allow this to happen, they are cutting out a one-off shot by the courts to determine whether Rwanda is a safe country in general.

Why on earth would they not want that to happen, as their case is not that Rwanda might or might not be a safe country but that it is a safe country? Might I venture to suggest a reason why they are behaving in this extraordinary way? It is because it will take a bit of time for the courts to reach that conclusion—maybe two or three months from the Bill becoming law—and in that time there might be a general election and nobody will have flown to Rwanda. Could a responsible Government be willing to put asylum seekers’ lives at risk on the chance that Rwanda might not be a safe country? Obviously not, without a proper examination by the courts.

What I am saying does not challenge the basic policy of deporting to a third safe country or offshore processing—that debate is for another day—but, if the Government are going to do this, to give people confidence in them and to give the world confidence in the UK, surely they should do it lawfully, not unlawfully. They should not be advancing bogus reasons for cutting out the courts, when the courts are there in every other consideration of whether a country is safe. It is very discreditable.

[Lord Deben (Con)]

My Lords, I hope the Committee accepts that I rarely intervene when the lawyers are at it, because I am not of great assistance, particularly to my noble friend of a great many years Lord Clarke. But he asked the Government to tell him of an occasion when this has happened before. I will remind him of one: the court of King Canute told him that, because he was sovereign, he could tell the waters to stop and the tide to go out. Of course, we were never taught it this way round in school, but the truth is that King Canute went to prove to his courtiers that he could not reverse the truth.

The problem with this part of the Bill is that it proposes that the sovereignty of Parliament is able to make a situation true, whether it is or not. In other words, this would be wrong even if the Supreme Court had not ruled that this is not a safe country. It is not part of the sovereignty of Parliament to declare truth; it is part of the sovereignty of Parliament to declare the law—and, in so far as we are sensible, we try to make the law as close to the truth as possible.

Now this Government have done a remarkable thing. There are many bishops on the Bench at the moment, so I will speak with a certain amount of care, but I seem to remember:

“‘What is truth?’ said jesting Pilate, and would not stay for an answer”.


This Government have not even asked the first question. They assert that this is true and, as my noble friend suggested, not only is it true but it will always be true until, I suppose, the Government—because the courts will have no place in this—say that it is not true.

The reason I feel so strongly about this is that I have spent nearly 11 years of my life as chairman of the Climate Change Committee. One of the problems I have faced all that time is people asserting “my truth” —not “the” truth but “my” truth—and that their truth is the equal of anyone else’s truth. That is not the nature of truth. Truth has constantly to be questioned. Doubt is an essential part of faith; you have constantly to question. The Government are proposing a unique situation, which is that we shall never question their decision, at this moment, that Rwanda is a safe place. I am not going to try to say whether I think it is safe or not. I think merely that it should be under constant consideration if we are going to take other human beings out of our jurisdiction and place them somewhere else.

That, if I may say so to my noble friend, is a moral matter. We remove responsibility by doing this, and the one way in which we can protect ourselves is if the place to which we send them is constantly available for questioning. The only place where that questioning can take place is in a court because courts listen to all the arguments, hear all the evidence and make a decision. If you do not like the decision, you can appeal it, but finally you have to accept it. Once you undermine that, I do not see how you can uphold the rule of law anywhere else. Once the Government have said that their truth is true and there is no other truth, we have moved into a position which is entirely unacceptable in a democracy. This Government have to understand that—on this issue perhaps alone—this House will have to stop this Government’s proposal by whatever way. This is our duty. We are not a House which just puts the details of law into some sense. We also have a constitutional position. The Prime Minister made his rather curious statement about the will of the people, but the will of the people can be protected only if this House stands up for the constitution of our nation, and our constitutional position must be that the Government cannot determine truth. Only the courts can do that.

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[Baroness Chakrabarti (Lab)]

I am fascinated by this new “court of Parliament” concept. Anyone who thinks that the Age of Reason ended in 1800 will need to read Hansard tomorrow because, if I may say so, the Conservative Privy Council Benches have perhaps delivered some of the finest contributions to this Committee today. I, for one, will be rereading the noble Lord, Lord Deben, because enlightenment is clearly not a single moment but something that has to be fought for again and again so as not to end up where the noble Baroness, Lady Bennett, warned us. If there is now to be a court of Parliament that is examining the safety of Rwanda on an ongoing basis, I do think the noble Lord, Lord Purvis, should have an answer on what procedures there are, under the Bill as currently drafted, for these monitoring committees to report not just to the Government but to the court of Parliament that is being so elegantly expounded by the noble and learned Lord.

[Lord Falconer of Thoroton (Lab)]

My Lords, before the Minister answers the question, this is a rather unusual court, because it is a court that does not afford the most basic rights of justice to the people who will be affected by the decisions we make. In any other court, if you are about to be exported to a place you say will torture you, you can normally at least have your voice heard; but not in this new court that the noble and learned Lord has just set up.

[Lord Stewart of Dirleton (Con)]

First, as the noble and learned Lord is perfectly well aware, the Bill blocks the possibility of refoulement and of return to any country other than the United Kingdom. In relation to the point from the noble Baroness, Lady Chakrabarti, that Parliament is a court is a familiar and well-known concept; it is a name by which Parliament is well known.

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[Viscount Hailsham (Con)]

I am most grateful to the noble Baroness and entirely agree with what she has said on Amendment 81. My amendment is an additional concept. The concern has become apparent in Committee that, if Rwanda can become safe, it may also cease to be safe. It is important that we should have in place a mechanism for determining if it becomes unsafe, so that the provisions in the Bill cease to operate. That is what my Amendment 82 seeks to do.

I have called it rolling sunsets, but this is what I have in mind: the amendment from the noble Baroness triggers the implementation of the Bill for a period of two years, in the circumstances that she set out, and at the expiration of that period, if the Government want another two years or any other period, they must get an affirmative resolution of both Houses. Before they can get that, the procedure outlined by the noble Baroness must be complied with, including a report from the Joint Committee as to safety. If they want to roll it on for a third period of two years and so on, each time Parliament would be given the opportunity of receiving a report and triggering the extension of the Bill. In that way, rolling assessments of safety could be provided.

[Lord Falconer of Thoroton (Lab)]

My Lords, I strongly support my noble friend Lady Chakrabarti’s amendment, as amended by that of the noble Viscount, Lord Hailsham. It is incredibly important that the Act comes into force only when there is satisfaction that Rwanda has become a safe country and a rolling assessment can be made. I say that subject to the noble and learned Lord, Lord Stewart of Dirleton, indicating to us earlier—we were very excited by this—that he would tell us whether Parliament could in some way reopen whether its judgment on whether it was a safe country had changed. He told us that the noble Lord, Lord Sharpe of Epsom, would tell us how this would work on a later amendment. I anticipate that he will tell us on this very amendment how Parliament can in some way be activated to get rid of it. I am very excited to hear that, because at the moment I cannot see how it could without the amendments of my noble friend and the noble Viscount, Lord Hailsham.

I will raise two points about where we are at the moment. The first is about when the future Act will come into force. Clause 9 says:

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


One would envisage that the treaty will not enter into force until the Government are satisfied that Rwanda is safe. That is a minimum requirement for a Minister. I assumed that that was the position, but I then had the misfortune to look at the agreement that the country has entered into with Rwanda. It says:

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


Rwanda and the United Kingdom—

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

I understand that to mean that, when the process has been gone through constitutionally in Rwanda and the UK—to ratify, as it were—each country notifies the other that that is the position, and the agreement immediately comes into force.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I also note the Clock and I will make points on the two headings. The first is on Amendment 81 in the name of the noble Baroness, Lady Chakrabarti. The basis for it, according to the Member’s explanatory statement, is that

“This amendment replaces … (an executive act), with a parliamentary trigger”.


The proposal is that instead of having an executive fiat, Parliament and parliamentary sovereignty would be put in its place. Unfortunately, the amendment does not do that. What it does is to take the pen away from the Minister and hand it to the Joint Committee on Human Rights. The reason is that the way this amendment is drafted is that two requirements need to be met. First, the Joint Committee on Human Rights has to report its belief that Rwanda is safe; in other words, if it comes to the conclusion that Rwanda is not safe, or might not be safe, then proposed new subsection (1A)(a) is not satisfied, and it falls there. The second requirement is that

“a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”.

If, for example, both the other place and this House were to take the view that the Joint Committee on Human Rights had got it totally wrong and, in fact, contrary to its view that Rwanda was not safe, it plainly was safe, Parliament could do nothing about it. I am sure that is not what was intended, but it is a fundamental problem in the drafting and in the scheme if what is intended is to hand power to Parliament.

Just to make it clear, if that amendment were made to this amendment, I would still oppose it. The responsibility should lie with the Secretary of State. Let us be very clear about what this amendment would actually do. It would take the pen away from somebody who is elected and responsible to the electorate and hand it to the Joint Committee on Human Rights. I have the greatest respect for the JCHR—I appeared before it when I was a Minister—but it is wrong in principle that it and it alone should have the right to stop this legislation in its tracks. That is the first point I wanted to make.

The second point I want to make arises out of Amendments 35 and 90 and the point made by the noble and learned Lord, Lord Falconer of Thoroton, earlier that this is retrospective legislation. As we are in Committee—although many of the speeches seem to be Second Reading speeches—let me pick up one drafting point on Amendment 35. As I understand it, it would prevent a decision-maker making a decision relating to the removal to the Republic of Rwanda of somebody who arrived in the UK before the Act received Royal Assent. The words

“a decision relating to the removal”

are very broad. Would they include, for example, a decision about how old somebody is? That is a decision that will be needed under the current legislation and under this legislation. I would have thought that it cannot be intended that Amendment 35 would stop decisions which have, so to speak, that dual purpose. That is a drafting point.

The more fundamental point is whether this is retrospective legislation at all. I listened very carefully, as I always do, to the noble and learned Lord, Lord Falconer of Thoroton. With respect, I fundamentally disagree with him that this is retrospective legislation. What is retrospective legislation? The House of Commons Library puts it in these terms—this is from a paper it published in June 2013, but these are fundamental principles that do not change over time—citing Craies on Legislation, ninth edition. It says that retrospective legislation is generally defined as legislation which

“takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past”.

The two classic examples are, first, that conduct which is lawful when you do it is not later made unlawful; and, secondly, that the penalty for unlawful conduct when you do it is not rendered greater retrospectively. It is right to say that we have legislated retrospectively in the criminal context—rarely, but we have. The War Crimes Act 1991 and the International Criminal Court Act 2001 are examples of that. However, none of this is retrospective legislation. The example the noble and learned Lord gave is that somebody might have an argument which they could put in court that, for example, “I’ve got a brother here, I’ve got somebody here”. That is not a vested right.

[Lord Falconer of Thoroton (Lab)]

No. The noble Lord has misunderstood my argument. You are in this country before the Act. You have a right in the sense that you are, in fact, subject to persecution. You would have to advance the argument to get the right, but your right is a right to stay here, and a right to stay not on the basis that you may be exported to Rwanda. That is a right. It might not be viewed by the law as a “vested right” in the sense that he is referring to, but it is plainly within the spirit of retrospective legislation.

[Lord Wolfson of Tredegar (Con)]

A very good touchstone of when lawyers realise that—if I may respectfully say—the argument does not quite work is when they start referring to spirits of things. With great respect, that is not a vested right. If you have a right to asylum, you have a right to asylum. Under this Bill, you also have a right to asylum. What this changes is where you have the right to asylum.

[Lord Purvis of Tweed (LD)]

The person who would have a right to asylum in the UK under this Bill would no longer have the right to asylum in the UK. It is completely different. They may have a right to asylum in Rwanda, but that is not the right that they had when they were here which is going to be taken away from them.

[Lord Falconer of Thoroton (Lab)]

Will the noble Lord explain why if I come here and am entitled to asylum that is not a right?

[Lord Wolfson of Tredegar (Con)]

The right is to make a claim for asylum. That is the vested right absolutely. The right is the right to asylum.

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[Lord Falconer of Thoroton (Lab)]

A right to have possession of my property requires me to go to court and get it. It is still a right, even though I have to ask for it.

[Lord Wolfson of Tredegar (Con)]

I am sorry; that is totally different, because the courts—I will give way to the noble Baroness.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

[Lord Tugendhat (Con)]

My Lords, like other noble Lords, I was unable to be present for Second Reading two weeks ago, but I cannot allow the Bill to pass through the House without making my deep concern about it evident in public. I am speaking on this group of amendments because they go to the heart of my concern.

I have been a Member of Parliament for a very long time, on and off, and a member of the Conservative Party for some 66 years, when I counted it up. I find it quite extraordinary that the party of Margaret Thatcher should introduce a Bill of this kind. Like some other noble Lords, I have a clear memory of the great battle that Margaret Thatcher fought with the European Union—the European Community in those days—over the British budget contribution. From time to time, it was suggested that she should cut the cackle, put the continentals in their place and cut off the British contribution. That would have been very dramatic, and very popular in some circles, but she did not countenance the idea because she believed that it would be contrary to the law. There were those who warned that it might even run into trouble in the British courts. How different that is from this Bill and the way in which we are now asked to behave towards the Supreme Court and the European Convention on Human Rights.

This is no esoteric matter that concerns only the subject under discussion and is of interest only to lawyers. We in this country frequently boast that Britain is such a marvellous place to do business because of our great respect for the rule of law and because the Government, unlike some Governments of the world, can be relied on not to make arbitrary and unreasonable acts. It is very difficult to sustain that argument in the light of the Bill now before us. I do not know whether those who envisage doing business in this country will draw that conclusion or not, but we are going against a fundamental interest, not just on this issue but for our wider reputation.

What we are asked to do represents the sort of behaviour that the world associates with despots and autocracies, not with an established democracy nor with the mother of Parliaments. It is a Bill we should not even be asked to confront, let alone pass.

[Lord Falconer of Thoroton (Lab)]

It is a privilege to follow what the noble Lord, Lord Tugendhat, said, and I strongly agree with it. I will focus on two things in relation to what the Government are asking us to do. Before that, I apologise for not having been here at Second Reading—I, too, was abroad. I declare an interest as a member of the Constitution Committee of this House, which published a report unanimously expressing very considerable concerns about the Bill.

I have two concerns about the Bill. As a nation, we have accepted for the last 70 years that we will not deport asylum seekers to a place where they may face death, torture or inhuman treatment, and that, if asylum seekers feel that that is a risk, they can seek protection from the courts. The courts may well give an applicant short shrift if they do not think there is anything in it, but we have stood by that protection for 70 years and incorporated it into our domestic law in the Human Rights Act 1998. The Bill envisages the possibility—or indeed it being the more-likely-than-not result, according to those who have looked at it independently—that people will be sent to Rwanda, where they will be at substantial risk of being refouled, which means sent back to a place where they could be tortured or killed.

The claim made by the Government is that we have entered into an agreement with Rwanda that says it will not send anybody who comes from here to anywhere except the UK, to which the answer is that given by the international treaties committee: that the reason there was a risk of refoulement was that Rwanda did not even have the most basic system of properly assessing asylum claims. The idea that the Bill envisages—that the moment the new treaty comes into force, it will provide that protection—is absolute nonsense. Everybody appreciates that except, as far as I can see, the right honourable Mr James Cleverly, the Secretary of State for Home Affairs. If we look at the conclusions that the Supreme Court introduced, we see that, factually, it is just a non-starter.

The Government say, and I am sure that the noble Lord, Lord Sharpe, will confirm it on their behalf, that they stand by the commitment we have made for the last 70 years that asylum seekers will not be exported to a place where they might be refouled. If that is their true position, how on earth can they allow this? The international treaties committee also said that, quite separately from the fact that we would need to reform completely Rwanda’s asylum system, we would have to enter into a number of other detailed provisions before it could be seen whether the provision in the new agreement prevented refoulement. Those agreements have not yet been entered into with Rwanda, and there is no requirement for them to be so before the Bill becomes law.

My first big objection to the Bill is that it goes against commitments we have made as a nation and stood by for the past 70 years. If we are looking for solutions to the problems of immigration in the world, turning our backs on all the international agreements that we have made seems a very bad start indeed.

My second big objection to the Bill is that it fundamentally crosses over the separation of powers. The noble Lord, Lord Howard of Lympne, whom I greatly admire—he was a member of our Constitution Committee—said, “Oh, don’t worry. We’re just taking the opinion of the former Lord Chief Justice, who is the dissenting voice in the Court of Appeal”. No, that is not what the Government say they are doing. They are saying, “We’ve taken account of the Supreme Court judgment. We respect that judgment. We’re not going with the former Lord Chief Justice’s judgment; we’re dealing with the points that have been made—and, by the way, dealing with them while not letting anybody question us about that”. That is absolutely not the role of this House or the courts.

What this Bill leads to is Parliament delivering what the noble and learned Lord, Lord Garnier, described as silly, but is so much more profound than silly. I quite agree with him that the beginning of the Bill is very silly in the way that it reads—it is a cack-handed attempt to deliver a judgment, like a court would read—but it is not silly; it is dangerous.

Think of three examples. First, Parliament can say, “Even though we see Rwanda refouling people we are sending, and it is sending Afghans, Syrians and Iraqis back to death or torture, we will do nothing”. We will say that that is okay because we made our judgment that it was a safe country.

That is one example. Let us take another. Suppose the Prime Minister has a friend or a crony in the House of Commons who is convicted in a court of corruption of some sort. The Prime Minister then presents a Bill to Parliament, saying, “It is the judgment of Parliament that Snooks MP actually wasn’t able to present this new evidence to the criminal court that convicted him, so it is the judgment of Parliament that Snooks MP is innocent”. That is the route this Bill takes Parliament down.

Take a third example: the Electoral Commission decides that it will not investigate some problem of, say, not complying with expenses and the courts then say, in relation to that decision, “The Electoral Commission was overinfluenced by party-political considerations”—for example, the governing party was very unkeen for there to be a proper investigation of some expenses fraud in an election, and on judicial review the Electoral Commission’s refusal to investigate was set aside on the basis there was no basis not to investigate. Once again, relying on this precedent, the Government of the day, assuming they have a big majority, can produce a Bill that says, “It is the judgment of Parliament that the courts have got that opinion wrong”—as the noble Lord, Lord Howard of Lympne, introducing a whole new concept in the law, said is the position.

That is the danger of this Bill. I am not sure that I support all my noble friend Baroness Chakrabarti’s solutions—in particular, I am not sure the reference to the United Nations commissioner on refugees is the right source—but, my goodness, if we start letting Parliament make such judgments, we open a door that will be incredibly difficult to close. We in this House surely should not give effect to it.

I have one final point. The noble Lord, Lord Murray of Blidworth, said, “Don’t worry, it’s all Clause 4”. It is not. Clause 4 allows appeals to be made only by people who say something different from “the country is not safe generally”; it is only if there is something specific about them. If, for example, I am a voluble member of the Rwandan opposition and I am then sent to Rwanda, where I may get tortured or killed, then I have a ground, but if I am from Syria or Afghanistan and Rwanda is refouling regularly, I have no basis for appealing.

My first point is that we should stand by our commitments to asylum seekers. My second is: do not listen to this siren song that this is not a fundamental change in our constitution. It is, and it will be the foundation of very bad things to come.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I was at Second Reading. I do not know if that makes me less interesting to listen to than the noble and learned Lord, Lord Falconer, and all the rest. I have heard some of these remarks before, of course, but it is always a pleasure to hear them again, if I agree with them. I will say something quite similar to what noble Lords have just heard from the noble and learned Lord, Lord Falconer. I will obviously say it less competently, because I do not have legal training, but what I do have is common sense. I am not suggesting that they are mutually exclusive, but they are two completely different things.

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[Lord Falconer of Thoroton (Lab)]

Can the Minister indicate when the Government will respond to the report on the Bill by the Constitution Committee of this House?

[Lord Sharpe of Epsom (Con)]

I am afraid that I do not know; I will find out.

[Lord Falconer of Thoroton (Lab)]

And write to me with the answer.

[Baroness Chakrabarti (Lab)]

I am grateful to all Members of the Committee from around the Chamber for the constructive manner and tone with which these proceedings on the first group have been conducted. Noble Lords will forgive me if I do not mention every excellent contribution; they will understand that is not a discourtesy to Members of the Committee, but, I hope, a bit of kindness to those who have amendments to follow this evening.

I am particularly grateful to the noble Lord, Lord Howard of Lympne, for following immediately, because he was able to crystallise some key issues between us, on my suite of amendments as well as on all the others in the first group. In essence, he had two points: one that I can embrace to some extent, and another that I cannot. I think that he was the first to point out that, in the way that I have formulated my suite of amendments, I have given perhaps too determinative a role for the UNHCR. I explained the reason for that: it was because the Prime Minister said that he was going to assuage the concerns of the Supreme Court. None the less, I take the noble Lord’s point—which was echoed by subsequent speakers, if less robustly—so I hope not to create a determinative role for the UNHCR in the next stage of proceedings, although I also note that many Members of the Committee, including the Minister, referred to the important part that the UNHCR plays in the world on refugees and the convention.

However, the second crucial point—

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[Lord German (LD)]

Indeed. That is why, in this suite of amendments, the Secretary of State has to take the advice of a number of organisations—not one in particular but a number of organisations. The Secretary of State must produce the evidence to show that the requirements are in place, operational and working according to the decisions that were originally in place as wanting to see this thing through.

[Lord Falconer of Thoroton (Lab)]

Is it right that what the noble Lord perhaps had in mind when referring to the Supreme Court judgment was its words that the problems in Rwanda were not a lack of good faith on the part of Rwanda but

“its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement … and the scale of the changes in procedure, understanding and culture which are required”?

The noble Lord, Lord German, might also have had in mind that the Supreme Court identified

“a culture within Rwanda of, at best, inadequate understanding of Rwanda’s obligations under the refugee convention”.

Would it be the case that the noble Lord, Lord German, might also have been rather worried that simply having to agree that “We won’t refoule” from a date which I assume would be about a month or two from today sits rather unkindly against that assessment by the Supreme Court? Am I also right in saying that the noble Lord, Lord German, would have been very heartened by the noble Lord, Lord Sharpe, who said that he accepted all that the Supreme Court had said?

[Lord German (LD)]

My Lords, I am loath to say “yes” to a leading question from a leading lawyer, but he is absolutely right, of course. For those words added to what I said earlier and paragraph 104, which we have already had referred to, the

“necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring”.

If you read the Supreme Court judgment, you will know what we have to test in order to prove Rwanda’s safety. That is what the committees of this House have been trying to do.

This suite of amendments turns it all around. It says that it is the judgment of the Government, which they would have to bring forward in an order for the House to accept, but before that they would have to address all the issues in Amendment 84 which are proposed for new Clause 84(1)(c). They would also have to consult and be certain that they had made the case. If, at the end, Parliament approved the order that the Government had put before it, the courts could intervene and test it on the basis of fact. That is our current procedure for dealing with issues of this sort. I am loath to say that this is back to the future, but it is keeping in track where we stand as a Parliament—how we make decisions, where they are tested and whether they can be tested in the courts.

We cannot allow a dangerous precedent to be set with this overreach of Parliament’s role. The courts need to remain as the check and balance on the exercising of the Secretary of State’s power. Parliament cannot be allowed to overturn the evidence-based findings of fact made by the highest court in the UK, given that this Bill is there for ever and does not look at what happens in the future. We need to stand firm against the Government’s attempt to subvert the separation of powers in this country. Today, this is about asylum seekers; tomorrow, this precedent will be applied to the next group who find themselves as the latest scapegoats of the Government.

I end with the words of the late Lord Judge in this Chamber. I sat here listening to him and I hear those words echoing in my head now. He said:

“the rule of law is a bulwark against authoritarian incursion, and even the smallest incursion threatens it”.—[Official Report, 19/10/20; col. 1286.].

Those are wise words. This suite of amendments seeks to uphold the principle that he espoused so powerfully. I beg to move.

[Viscount Hailsham (Con)]

I commend to my noble friend the concept of the rolling sunset, which he will find in Amendments 81 and 82.

[Lord Falconer of Thoroton (Lab)]

I am very interested in the amendment tabled by the noble Lord, Lord German. On one view, it is saying that the Secretary of State makes his or her decision only after properly considering all the relevant factors. It may be that what he has in mind is that, thereafter, there can be appropriate review of that by the courts. I assume that he has in mind judicial review. Therefore, it would be the decision of the Secretary of State that was judicially reviewable. It is worth thinking about whether, once that decision had been made and then upheld by the courts because there was a proper basis on which a Secretary of State could reach that decision, in general terms the question of whether the country was safe would not thereafter be open to consideration by the immigration office.

I would not be in favour of that as a matter of principle, but if one is looking for a compromise—this is something that the noble Lord, Lord Anderson of Ipswich, touched upon, and it may be dealt with in later amendments—I would be very interested to hear what the view of the Government is in relation to a situation where, in effect, the Secretary of State had to make a proper decision addressing the proper considerations and that decision was then open to judicial review. Could that be a compromise?

[Lord Howard of Lympne (Con)]

My Lords, I had not intended to speak on this group, but the noble and learned Lord, Lord Falconer, has just raised an extremely interesting point. He suggested that a decision by the Secretary of State, having considered the factors referred to by the noble Lord, Lord German, should be subject to judicial review. The principles of judicial review are clear: the court does not substitute its own view of matters; it assesses whether the Secretary of State came to a reasonable decision.

Departing somewhat from the Government’s view, one of the problems that I have with the Supreme Court decision is that it was not based on the principles of judicial review. The Divisional Court did approach it on that basis and the Supreme Court said that that was wrong. The Supreme Court, relying on precedents that had never received the authority of Parliament or statute, decided that it should not apply the principles of judicial review, but should decide these matters for itself. That is a very important distinction between what happened in this case, which gave rise to this legislation, and the procedure now being proposed by the noble and learned Lord, Lord Falconer.

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[Lord Stewart of Dirleton (Con)]

I accept that and I did hear the noble Baroness make that point from the Benches opposite.

Since summer 2022, when judicial review proceedings in relation to the migration and economic development partnership began, the United Kingdom and the Government of Rwanda have worked to refine and improve that partnership. This has strengthened not only the operational readiness of Rwanda to receive and support migrants relocated under the partnership but the legal footing of the agreement and the commitments both sides undertake to ensure that national and international obligations and standards are met, having scrutinised closely and carefully all the circumstances of the country and information from appropriate sources.

Rwanda has a long history of supporting and integrating asylum seekers and refugees in the region. It has also been recognised internationally for its general safety and stability, strong government, low corruption and gender equality. I quote from what the Kigali-based comprehensive refugee response officer, Nayana Bose, of the UNHCR said in December 2021—mark the date:

“Rwanda has done an excellent job integrating refugees in the national education system, including urban refugees in the national community-based health insurance plan, providing them with national ID cards and offering them livelihood opportunities”.


As the Committee is aware, the Bill is underpinned by the treaty, Article 10 of which in particular sets out the assurances for the treatment of relocated individuals in Rwanda, including abiding by the refugee convention in relation to those seeking asylum. Furthermore, pursuant to Article 3 of the treaty, the parties agree that the obligations therein

“shall be met in respect of all Relocated Individuals, regardless of their nationality, and without discrimination”.

Under this commitment, Rwanda will treat all groups of people fairly. We have assurances from the Government of Rwanda that the implementation of measures within the treaty will be expedited. The treaty will follow the usual process with regard to scrutiny and ratification. I note that amendments tabled by noble Lords on this topic will be debated in the group to follow.

Amendment 17 would also oblige the Secretary of State to consider Rwanda safe only if it was deemed so for every descriptor of person as set out in Section 7(3) of the Illegal Migration Act. In relocating individuals to Rwanda, decision-makers will make a case-by-case decision about whether there is compelling evidence that the particular circumstances of each case would mean an individual would be at risk of serious and irreversible harm were they to be relocated to Rwanda. This means that each person’s circumstances are considered before relocation. We therefore consider the amendment unnecessary.

Amendments 24 and 27 relate to the roles of courts and tribunals. It is important that we recognise that these are considered decision-makers in relation to relocating individuals to Rwanda, and they may have a say in it.

Amendment 27 in particular would place an obligation on courts and tribunals to consider any claim that Rwanda may breach its international obligations by removing an individual to a country that was unsafe for them; that an individual may not receive fair and proper consideration of their asylum claim; and that Rwanda will not act in accordance with the terms of the treaty. This obligation is unnecessary. Rwanda is as committed to this partnership as we are. We have worked closely together to build this partnership and have trust that the commitments in the treaty will be upheld. That is why we have introduced the Bill, which reflects the strength of the Government of Rwanda’s protections and commitments given in the treaty, allowing Parliament to confirm the status of the Republic of Rwanda as a safe third country.

The noble and learned Lord, Lord Falconer of Thoroton—I speak to his later contribution, rather than when he was assisting the noble Lord, Lord German, with legal analysis—posed the question of whether judicial review might be applicable. My noble friend Lord Howard of Lympne took up that point as well. On that aspect, I refer noble Lords to the terms of Article 22 of the treaty, which provides:

“In the event of a dispute arising out of or relating to this Agreement, including any question regarding its existence, validity, termination, interpretation or implementation, the Parties shall refer the dispute to the Joint Committee which shall meet within 14 … Working Days to discuss and seek resolution to the dispute by consultation”.


Therefore, the process by which matters will be addressed, if there is some shock to the operation of the system once it is operational, is set out in the terms of the treaty and operates on the level between the two countries.

[Lord Falconer of Thoroton (Lab)]

I thank the noble and learned Lord for answering the question, but I am not sure that answers the point. Suppose the position were that the UK said, “You haven’t implemented it properly”; the effect of this Act would be nevertheless that a Minister and every single deciding body would have to decide that Rwanda was a safe country. I am not quite sure how Article 22 responds to the suggestion that I think the noble Lord, Lord German, makes in his amendment that judicial review should be available—albeit, as the noble Lord, Lord Howard of Lympne, said, it would be the decision of the Secretary of State as to whether it was a safe country. Could the noble and learned Lord address that suggestion?

[Lord Stewart of Dirleton (Con)]

My Lords, in relation to the operation of the treaty during its currency, we should bear in mind that a monitoring committee is in place, which examines these things on a going-forward basis, keeps them under supervision and reports back.

Annexe B of the treaty also sets out the claims process for relocated individuals and how they will be treated. It sets out clearly that members of the first instance body, who will make decisions on asylum and humanitarian protection claims, shall make such decisions

“impartially, solely on the basis of evidence before them and by reference to the provisions and principles of the Refugee Convention and humanitarian protection law”.

In preparation for the potential relocation of individuals, officials in the United Kingdom have worked together with Rwandan officials to develop and commence operational training for Rwandan asylum decision-makers. Most recently, Home Office technical experts, in collaboration with the Institute of Legal Practice and Development, delivered a training course aimed at asylum decision-makers in Rwanda.

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[Baroness Kennedy of The Shaws (Lab)]

My Lords, I am sorry to interrupt. We have not received any evidence as to how this change has taken place in this short period. Rather than an assertion, what evidence is being placed before this House as to what is taking place and what has taken place to totally change the assessment of safety? I really would like to hear what the evidence is.

[Lord Falconer of Thoroton (Lab)]

My Lords, could I assist the noble and learned Lord in relation to this? There is a document called Safety of Rwanda (Asylum and Immigration) Bill, and what this rather excellent document reveals—no doubt the noble and learned Lord will correct me if I am wrong—is that, since the Supreme Court decided, there has been the agreement that has been entered into, which is really just making legal and international law commitments they had already given, and that just before the Supreme Court gave its judgment, two courses were held, one from 18 to 22 September 2023 and the second from 20 to 24 November 2023, in which a number of Rwandan officials were trained, as the document says, to have a better understanding of the refugee convention.

Apart from those two courses and the entering into of the agreement the Minister referred to, will he tell us what else has happened since the rendering of the Supreme Court’s judgment, which I think was a few weeks ago?

[Lord Stewart of Dirleton (Con)]

More than a few weeks ago, I think, but what we have is an internationally binding treaty between two sovereign states. That—if the noble and learned Lord will bear with me—is of the utmost significance in considering such matters.

[Lord Falconer of Thoroton (Lab)]

Am I right in saying that the legally binding commitment commits Rwanda to do the things, particularly in relation to refoulement, which it had already promised—although not in an agreement—to do? Am I right in saying that the very judgment which the noble Lord, Lord Sharpe, said an hour ago the Government respect, would take considerable time to take effect because of cultural understanding and the need for very substantial change? I am looking for something other than simply signing an agreement to do with that which it had already promised to do, which the Supreme Court said it was not in a practical position to deliver. Will the Minister tell the Committee what has happened that gives one confidence that that which the Supreme Court says will take time will in fact be ready in an instant?

[Lord Stewart of Dirleton (Con)]

It is not a matter of being ready in an instant. The work is being undertaken. The point is that we have a specific treaty commitment not to refoul. As the noble and learned Lord knows, but just to remind the Committee, that is not to send people from Rwanda anywhere other than back to the United Kingdom; and, specifically, not to send them to places where they might be subject to torture or mistreatment; and, further, not to send them back to the countries from which they emerged if those countries are deemed dangerous.

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[Lord Stewart of Dirleton (Con)]

I think the noble Lord overstates the matter. Advice and assistance are being provided to assist a country to shape its laws and culture in a way which is consistent with ours. The work Rwanda has undertaken is substantial. Work has been done in response to the decision of the Supreme Court, albeit, as my noble friend Lord Howard of Lympne pointed out, that that decision ultimately related to refoulement, which is expressly covered in the treaty.

[Lord Falconer of Thoroton (Lab)]

The noble Lord, Lord Howard, is correct when he says that the fundamental reason why the Supreme Court said no to this was the risk of refoulment. But it said that the risk of refoulement was caused by Rwanda’s asylum system, which was totally defective across the board. Rwanda could not prevent refoulement because its system was so bad. The judgment refers to

“its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement … and the scale of the changes in procedure, understanding and culture which are required”.

That is what the Supreme Court identified as being required. So it is both accurate but rather misleading to say it was only refoulement. There was the risk of refoulement because of the failures. Would that be the Government’s understanding of the position?

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[Lord Stewart of Dirleton (Con)]

My Lords, it is entirely prudent and appropriate to anticipate contingencies in the terms of a document such as a treaty.

[Lord Falconer of Thoroton (Lab)]

The noble and learned Lord is taking a much tighter and more defensive position than the Government themselves are taking. They accept the proposition of the question put by the noble Lord, Lord Kerr. They do not say that Article 10 is enough on its own. They say the following:

“The Supreme Court concluded that changes needed to be made to Rwanda’s asylum procedures in order to ensure compliance with the principle of non-refoulement”.


They accept the proposition. That is paragraph 76 of the Government’s own statement. So tell us what changes and where we have got to. It is not enough—and the Government accept that it is not enough—just to rely on Article 10.

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[Lord Inglewood (Non-Afl)]

My Lords, I rise just to say that I entirely agree with those who have said that we should look carefully at the direction of travel suggested by the amendments from the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, and encourage the Government to do the same.

It seems to me that the Government have got themselves into a pretty strange position. In proceeding with what they want to do, they have given themselves a binary choice: either legislate a fundamental untruth or find a way of establishing a system that will bring about and give confidence on the safety of Rwanda. If they do not want to do the former—and they should not—they must investigate ways of doing the latter.

[Lord Falconer of Thoroton (Lab)]

My Lords, I shall first address the remarks of the right reverend Prelate the Bishop of Lincoln. Speaking entirely for myself, nothing I say is intended to cast any aspersions on the state of Rwanda, the suffering that it has gone through or the plight in which it currently finds itself. I found his remarks incredibly moving. The Supreme Court made clear that it was not a lack of good faith that had led Rwanda to be in the position that it is in; it was just that Rwanda did not have a system that could properly deal with the analysis of asylum claims in a way that would be acceptable to the commitments that we as a country have made to asylum seekers.

I agree very strongly with what the noble and learned Lord, Lord Hope of Craighead, and the noble and learned Baroness, Lady Butler-Sloss, said: that Clause 1, in so far as it says that

“Rwanda is a safe country”


is not right, and it would be wrong for us as a Parliament, or as the House of Lords, to agree to that which we know is wrong.

May I address the four alternatives that are now before the House as a means of trying to deal with that? First, the noble and learned Lord, Lord Hope, has proposed that one can give effect to the provisions of the legislation only if the joint committee, set up under Article 16 of the recent Rwanda-UK treaty, says that the agreement is being complied with, and that committee would have to act on the advice of the monitoring committee. In principle, that sounds quite a good idea. As the noble and learned Lord acknowledged, one should recognise—I do not say this in a disparaging way—that the joint committee is just the two Governments.

If it is the joint committee alone, that gives no additional assurance. Because the UK Government want to do this come what may, it is hard to imagine that the Rwandan Government are going to say that they are not complying with a treaty which they say they are complying with and have committed themselves to complying with. If it was only the joint committee under Article 16, that would not provide much protection, I say with some respect.

The amendment proposed by the noble and learned Lord, Lord Hope, says that the joint committee has got to act on the advice of the monitoring committee. Only if the monitoring committee positively advises that the agreement is not being complied with will the joint committee of the two Governments be prevented from giving the advice that it wants to give. I have no idea how this monitoring committee will work. It will presumably be 50:50 on each side. If it is paralysed, I do not know whether the noble and learned Lord’s proposed requirements would then be satisfied. If the joint committee was not getting positive advice one way or the other, it would still be able to give the assurance that one gives. Could that be dealt with by a number of tweaks? It might well be possible.

Subject to those points, I can see attraction in what the noble and learned Lord, Lord Hope, is saying. The only other point I have on his proposal is that the Minister appears to escape any duty at all. Should we not have it so that the Minister is subject to judicial review on the decision he takes about whether to implement the treaty?

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to the noble and learned Lord, Lord Falconer, for his comments on the significance of the joint committee. I would introduce it only at the beginning. For the future, it is entirely a matter for the monitoring committee to advise on whether the system is being fully implemented, once it has started up. One could remove the joint committee altogether and just have it rest entirely on the monitoring committee; that would be very close to the position of the noble Lord, Lord Anderson, and indeed that of the noble Lord, Lord Coaker. We are working towards a solution of some kind, but I welcome very much the helpful comments of the noble and learned Lord.

[Lord Falconer of Thoroton (Lab)]

I am grateful. The other proposal, which my noble friend Lord Coaker has put his name to, as well as the noble and learned Lord, Lord Hope, is to get the monitoring committee to decide. Then one of the only wrinkles would be: how does this monitoring committee work? It would require a positive assertion by the monitoring committee that the terms of the agreement are being broken. If the committee cannot get that, for example because it is deadlocked, then this potential Act would be given effect to. That is the second alternative.

The third alternative is the proposal by the noble Lord, Lord Anderson, that there be an independent reviewer. If that reviewer says it is not safe, this potential Act would be given effect to, as I understand it, only if there is a resolution by the House of Commons saying that it is safe. That has some attractions, but I am not attracted to it at the moment. First, the House of Commons has already shown its willingness—not because its Members are dishonourable people but because they are whipped by the Government, who have a significant majority—to pass a Bill that uses the word “is”. Secondly, surely such a resolution has the same vice as the Bill: one is asking Parliament to sit in judgment on the question of whether Rwanda is a safe country, and that is an inappropriate activity for Parliament.

I am in favour of one or other of the proposals of the noble and learned Lord, Lord Hope, in Amendments 15 and 16, or the monitoring committee—subject to my anxiety about how it would work. I strongly submit that we should not let the Minister off the hook; he or she should be subject to judicial review.

Of course, one has great sympathy with what the noble Baroness, Lady Jones of Moulsecoomb, said. However, our attitude—although it sticks in the gullet—nevertheless has to be to try to make this Bill work. My own view is that, if you are going to do offshore processing or deportations to safe countries, the one thing you have to be sure of is that you are acting in accordance with the law.

What makes this Bill so discreditable is not necessarily the policy, which people can disagree with, of offshore processing in third countries, but trying to do something like that in breach of the law. We should be working to get to a point where we are acting in accordance with the law.

[Lord Kerr of Kinlochard (CB)]

I agree with the noble and learned Lord, but I would like to say a word in defence of the amendments in the name of the noble Lord, Lord Anderson of Ipswich. Mine is the louche, unlearned name on the otherwise very learned list, alongside the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile.

We would be in a different situation if the independent reviewer, in a reasoned public document, put forward the case that the country was not safe—that refoulement was happening or could happen and there were not adequate systems to stop it. Here, we are talking about the difficulty of working out what it will be like when the treaty is in operation. Then, the reviewer would be presenting the House of Commons and Secretary of State with a report which, let us say, is critical. Then, it would be more difficult for the House of Commons to conclude that it did not care about the evidence. If there was such evidence, unlike the present situation, the House would have to say, “We reject the evidence”. I therefore stick with my louche support for the learned amendment.

As for the other learned amendment in the name of the noble and learned Lord, Lord Hope of Craighead, I understand it and it seems to have much merit. It has two possible downsides. First, the monitoring committee works for the joint committee, which is strange when you think about it—you might think it should be the other way around. It would therefore be very important, as the noble Lord, Lord Anderson, said, that the monitoring committee’s reports be published in full.

The second possible downside is the composition of the committee. The noble and learned Lord, Lord Hope, spoke about one member of the committee. Another member is Alexander Downer. That seems to me to be a bit of a downer. This is a man who is chairman of Policy Exchange and who invented the Australian scheme. This is the man who pressed hard for push-backs—actually shoving the little ships off to Papua New Guinea—which is something our Royal Navy has always refused to contemplate. The committee has to be comprised of persons independent of both parties. I am not quite sure how independent Mr Downer is of the Government.

My name is also on nine amendments, I have to tell the noble Lord, Lord Anderson, and on the amendment to which the noble Lord, Lord Blunkett, spoke. I see some attraction in the Blunkett scheme. If the Government are convinced that the system in Rwanda is fair and convinced that asylum seekers are given a fair hearing and assessment, why should we not accept that, if they are given asylum status, they should come here? The beauty of this is that he is turning offloading into offshoring. The distinction is one that some of us in the House have not always seemed quite to follow.

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[Baroness Lawlor (Con)]

My Lords, I welcome the Government’s determination to stop the boats, and I commend the provisions to disapply six sections of the Human Rights Act 1998 and to leave open to a Minister of the Crown whether to comply with an interim remedy from a court or tribunal that prevents or delays removal. I wish the Government success and hope the Bill will succeed, but it needs further tightening to avoid potential legal challenges that would prevent it from achieving its aims.

My Amendment 32 therefore is to disapply, for the purposes of the Bill, the relevant international arrangements and other law that prevents the UK from controlling its borders. The first reason for this amendment is a practical one. It is pointless to make a law that is unlikely to work. That, sadly, seems to be the case for the present Bill unless it is amended. The second reason is a deeper one. There is no doubt that there is a popular wish for the small boats to be stopped, and that one of the reasons why the Government were elected was to control our borders. Unless they make a law strong enough to withstand whatever challenge might be brought to it through national or international law, the Government will fail the people on whose support the laws made to govern Britain should be grounded. Trust in the democratic system, with its political parties, Parliament, Government and the judiciary, will be lost.

I do not accept the narrowness of contemporary theory about the dominant position that international treaty law should command. The apparent demand that international law should trump UK law is a form of legal and ideological utopian internationalism.

[Lord Falconer of Thoroton (Lab)]

Is it therefore the noble Baroness’s position that if there were extensive refoulement by Rwanda, that would not be a reason for not having the Bill?

[Baroness Lawlor (Con)]

That is not my view. My view is that, none the less, given the ingenuity of many noble and learned Lords in this House, and members of the judiciary, barristers and solicitors outside this Chamber, there may very well be intelligent and ingenious challenges that will hold up the operation of the Bill. That is why I want to bring forward my amendment.

By contrast, there are treaties that govern trade, diplomatic or military alliances, and they deal with the national interests of a state and, at one remove, its people. Many who advocate the pre-eminence of international law base themselves on theories of universal rights formulated in the heady days of treaty-making in the decades after World War II—for a European world, by and large, and circumstances very different to our own. These arrangements have provided a quasi-legal framework—

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[Lord Jackson of Peterborough (Con)]

Well, I will develop my argument about the tension between domestic legislation, parliamentary sovereignty and the rights and privileges of Parliament, and the international obligations and a universalist human rights regime which many noble Lords seem very content to support in preference to the former.

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting the noble Lord, whose complaint appears to be about supranational bodies. I do not know if he is aware—I am sure he is—that his own amendment disapplies

“any provision made by or under the Immigration Acts,”—

that is domestic law—

“the Human Rights Act 1998”—

that is domestic law—and

“any other provision or rule of domestic law (including any common law)”.

Why is he complaining only about supranational bodies when his amendment seeks to disapply great tranches of domestic law?

[Lord Jackson of Peterborough (Con)]

Well, the noble and learned Lord will be well aware that the Human Rights Act 1998, for instance, arose from the European Convention on Human Rights and the obligations in domestic legislation to that particular convention. I am sure there are other examples—

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[Lord Falconer of Thoroton (Lab)]

My Lords—

[Lord Jackson of Peterborough (Con)]

The hour is late, so if the noble and learned Lord will permit me—

[Lord Falconer of Thoroton (Lab)]

I would be grateful for an answer to the question of what the noble Lord says about

“any other provision or rule of domestic law (including any common law)”.

Nobody could suggest that was derived from abroad.

[Lord Jackson of Peterborough (Con)]

As the noble and learned Lord will know, the amendment is worded such that it is declaratory and unambiguous. I am glad he has allowed me to make the point that the amendment my noble friend Lady Lawlor and I put down is explicit and unambiguous, so that it cannot be misinterpreted further down the line, outside this Chamber in the judicial setting. That is why it is copper-bottomed. It may not be quite to his liking, but it is there for a reason and the wording serves a specific purpose.

I will continue, as the hour is late. As I have explained, the amendment aims to disapply, for the purposes of this Act, the relevant international arrangements and other laws which prevent the UK controlling its borders, as the people of this country have elected their Government and their Members of Parliament to do. To that end, the laws we pass in this Parliament must be clear and unambiguous. The noble and learned Lord, Lord Reed, the President of the Supreme Court, in dismissing one claim in a judgment on 15 November—that of ASM, an Iraqi—said that a court may not

“disregard an unambiguous expression of Parliament’s intention”.

I agree with what my noble friend Lady Lawlor said about the narrowness of contemporary theory and the universalist view, a logical corollary of which leads to a belief in open borders. It is practically impossible, in the current regime, for us to control our borders while we remain encumbered by international obligations which seek to subvert and undermine the sovereignty of this Parliament.

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[Lord Falconer of Thoroton (Lab)]

I completely agree with the noble Lord, Lord Jackson of Peterborough, that we do indeed need to address the immigration problem, but surely it would be better to address it in accordance with the law than in breach of the law.

[Lord Jackson of Peterborough (Con)]

I hope to address the point made by the noble and learned Lord, Lord Falconer. Yesterday, I was in Huntingdon town hall watching a play recreating the trial of Charles I, which took place from 20 to 30 January 1649. Obviously, it did not end well for Charles I, who was arraigned on a charge of treason for making war against his own people. What he really did, of course, was that he usurped Parliament. He grabbed for himself the age-old privileges, that Parliament then said it bestowed upon itself, of a sovereign Parliament. It was the ultimate demonstration of the rights and privileges of that Parliament to put to death for the first time in history its own King. The point is that the sovereignty of this place is a precious thing, and I think that the amendment put forward by my noble friend Lord Hailsham unbalances the three-legged stool that the noble Earl, Lord Kinnoull, who is no longer in his place, referred to in his earlier comments.

I draw attention specifically on that issue to—noble and learned Lords will no doubt be aware of this reference—AV Dicey’s doctrine of the supremacy of Parliament. The eighth edition of the textbook, Introduction to the Study of the Law of the Constitution, was published in 1915. It outlines the concepts of parliamentary sovereignty and the supremacy of Parliament. The three key points of parliamentary supremacy were that: Parliament can make any laws, it cannot be overridden by any body and cannot bind its successors nor can it be bound by its predecessors. The wider point is that we are a dualist Parliament. We do not cut and paste international treaties into law without proper scrutiny and oversight. Obviously, that involves primary and secondary legislation going through the proper procedures in this Parliament. That has been upheld by the Appellate Committee of the House of Lords in its time and of course by the Supreme Court. Treaty obligations have effect in domestic law only so far as they are expressly incorporated into domestic law. The sovereignty of Parliament is fundamental to our rule of law and cannot be circumscribed by international law, opinions or even conventions.

In the case of R v Lyons in 2002—it is a very important point, so I hope noble Lords will forgive me if I read it in full— Lord Hoffmann, stated that

“it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them... It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. ... The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not”.

In Bradley and Ewing’s authoritative book Constitutional and Administrative Law, it is clearly stated that the legislative supremacy of Parliament is not limited by international law:

“the courts may not hold an Act void on the ground that it contravenes general principles of international law”.

Indeed—as the noble and learned Lord, Lord Falconer, will be aware—the Labour Government in 1998 specifically reaffirmed the sovereignty of Parliament in relation to the Human Rights Act.

The amendment that we put down specifically makes that point. As I draw to a finish, I want to say to noble Lords that convention and international treaty obligations can be circumscribed and undermined to an extent by government. I draw noble Lords’ attention, for instance, to the prisoner vote issue of 2005. When I served in the other place, it was very much the settled view across the parties, including the Labour Government and the leader of the Opposition, that we would not accept prisoners who had been incarcerated with custodial sentences over a certain period receiving the vote. That was anathema to David Cameron, the case being Hirst v UK (No. 2) ECHR 681 [2005]. There was no outcry or uproar then; there was a settled consensus in this sovereign Parliament that the British people were not prepared to subsume their views, attitudes and opinions on prisoners sentenced to life imprisonment having the vote, having those civil and human rights that other people did. This issue will come up again when we debate later in this Committee the issue of marriage of whole life-tariff prisoners. One other example of course is that Madam Merkel disregarded the Dublin convention in 2015, allowing over a million Syrian refugees to come to the country in breach of Germany’s obligations under various treaties.

In conclusion, this Bill is of course imperfect; it is flawed. I may not even have voted for it when I was still in the other place, but that is another issue. Some noble Lords clearly want to hobble the Bill, make it inoperable and kill it with multiple amendments. We know that; it is only honest to say so. But the amendment moved by my noble friend Lord Hailsham moves the dial far too much towards judicial activism and away from parliamentary sovereignty. For that reason, I must ask noble Lords to resist it.

Finally, to those potentially assuming a ministerial responsibility later this year on the other side of this Chamber, I say, “Be careful what you wish for”. If Labour is elected to government, it will have to put into place an election manifesto; the people will have given it the faith and trust so to do. To undermine that by subjugating parliamentary sovereignty to international treaty obligations, which may change against the interests of a Labour Government and the British people, is a hostage to fortune. Undermining parliamentary sovereignty may seem a prudent thing to do in Opposition, but the burdens of higher office mean that, one day, the boot may well be on the other foot. For those reasons, I very strongly support the amendment in the name of my noble friend Lady Lawlor and resist the amendments moved by my noble friend Lord Hailsham and the noble Baroness, Lady Chakrabarti.

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[Lord Falconer of Thoroton (Lab)]

Can the Minister say how many times it has been used in total?

[Lord Stewart of Dirleton (Con)]

The noble and learned Lord will not be surprised to hear that I do not have the figure to hand, but I imagine it is readily available from Westlaw.

The noble Lord, Lord Hannay, said, “Answer yes or no, does our word continue to be our bond?”, or words to that effect. It continues to be our bond within the circumstances of the incontrovertible constitutional position set out in Clause 1(4)(b). The United Kingdom and this Government take their obligations—

Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

268: After Clause 170, insert the following new Clause—
“Video recorded cross-examination or re-examination of complainants in respect of sexual offences and modern slavery offences
(1) Section 28 of the Youth Justice and Criminal Evidence Act 1999 comes into force in relation to proceedings to which subsection (2) applies on the day on which this Act is passed.(2) This subsection applies where a witness is eligible for assistance by virtue of section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (complainants in respect of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).(3) This section has effect notwithstanding section 68(3) of the Youth Justice and Criminal Evidence Act 1999.”Member’s explanatory statement
This new clause would bring section 28 of the Youth Justice and Criminal Evidence Act 1999, which provides for the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, fully into force for victims of sexual offences and modern slavery offences.

[Lord Falconer of Thoroton (Lab)]

My Lords, Section 28 of the Youth Justice and Criminal Evidence Act 1999 allows for the cross-examination of vulnerable witnesses and victims of adult sexual assault to take place separately from the trial. The purpose of this provision—following Section 27, which allows evidence in chief to be given before the trial—is to allow a victim of adult sexual assault to give their evidence in chief and be cross-examined in a period quite shortly after the incident. It means that they do not have to wait a very long time for what will be a terrible ordeal. It means that they give evidence at a point when the events are only recent, rather than after a long period has gone by.

There is nobody, I think, who does not regard these provisions as beneficial. The purpose of this amendment is to ensure that they are as available as possible throughout the Crown Court estate in England and Wales. My understanding of the position is that they are available in respect of the victims of adult sexual assault only in certain specified Crown Courts in England and Wales. This amendment seeks to ensure they are available everywhere and as soon as possible, by saying they would be, in effect, available on the day this Bill becomes law.

It has been said that one of the reasons for not making the provisions available is that they require judicial resource—you need a Crown Court judge in order to hear the evidence, even though it is separate from a trial. It strikes me as very odd that adult sexual violence is not a priority of the Crown Courts. If judicial resources are the problem, my suggestion would be that making resources available to hear the victims of serious adult sexual assault should come sufficiently high up the priorities so that there is a judge available to deal with it. On that basis, I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I very much understand the impatience of the noble and learned Lord, Lord Falconer, for the introduction of video recordings of cross-examination in cases involving sexual offences and modern slavery. It is important that evidence in such cases is given early and without pressure. However, I have some queries about the amendment.

The Government have introduced by stages these provisions under Section 16 of the Youth Justice and Criminal Evidence Act 1999 for witnesses

“under the age of 18 at the time of the hearing”

and witnesses suffering “from mental disorder” or

“a significant impairment of intelligence and social functioning.”

The section also provides for witnesses with a physical disability. Various courts have been permitted to hear evidence in these circumstances, culminating in March of this year, when the provisions were extended to Preston Crown Court. But it was only on 30 September—six weeks ago—that the provisions were extended under Section 17(4) for complaints in respect of a sexual offence or a modern slavery offence. Only four courts were involved—Durham, Harrow, Isleworth and Wood Green. I have not seen any evaluation of the use of these procedures under Section 16, although they were piloted as early as December 2013 in Kingston, Leeds and Liverpool. I would be grateful if the Minister could tell me whether such an evaluation exists and, if so, whether it could be made available.

As for the proposal in this amendment to extend the provisions wholesale under Section 17, it is obviously too soon to evaluate limited pilots from the end of September. There can surely not have been time yet for any direction to be made by any judge of the three courts for such special measures for sexual offences and modern slavery.

Since I have no personal experience of these measures, I would be grateful if the Minister could inform me how they take place. As I read the legislation, the witness gives evidence to the court in the presence of the judge and counsel on both sides but in the absence of the accused. The accused is, however, entitled to watch the proceedings and communicate with his legal representatives. How exactly would this be organised? Is the accused in another part of the building, watching from prison, or what? In what way is this less intimidating to the witness than, for example, giving evidence down the line at the time of trial—a proceeding with which we have been familiar for some years?

My concern is that the distancing of the witnesses from the jury is artificial enough when it takes place at the time of the trial. But in my view it is even greater when the jury know they are watching a recording of examination and cross-examination which happened months, possibly even a year, before. While I appreciate that the best evidence is that which is given shortly after the events, the answer, really, is not to delay trials to get rid of the backlog. I heard on Saturday at my chambers dinner that the problem of delay is not the Nightingale courts but the number of judges and counsel needed to cover the trials taking place there and in the ordinary Crown Courts.

Originally, this amendment was grouped with Amendments 286 to 291. Are the others to be spoken to later?

[Lord Falconer of Thoroton (Lab)]

In this group, according to my listing, Amendment 268 is grouped with Amendments 286, 287, 288, 289, 290 and 291.

[Lord Thomas of Gresford (LD)]

That introduces the question about the complainant’s sexual history; I do not think the noble and learned Lord addressed that when he opened the case. The basic position in relation to that issue is stated in Section 41(1) of the 1999 Act, which says that

“no evidence may be adduced, and … no question may be asked in cross-examination,”

where

“a person is charged with a sexual offence … except with the leave of the court”.

Amendments 286 to 291 are concerned with tightening up the circumstances in which leave may be given. The noble and learned Lord, Lord Falconer, would not allow by these amendments such evidence whenever the issue of consent arises, whether at the same time or same event as the subject matter of the charge or where there is such similarity in the sexual behaviour of the complainant to the charge that the similarity cannot reasonably be explained as a coincidence.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support these improved safeguards because although I have not been in court very often, and when I have been there, it has been mostly as the complainant or a witness, I do think that we need better support for victims—or the plaintiff—who at the moment are treated very much as bit players in the whole theatre. It seems that they are almost forgettable because the two protagonists are the defence and the prosecution, and they take centre stage. It was obvious when we debated the Domestic Abuse Bill, when we discussed anonymity and other techniques for helping witnesses give evidence in court, so clearly that is needed.

The witness is often treated as a sort of emotionless void, with the legal test focusing on whether the proposed measures will improve their ability to give evidence, rather than, say, protect them from the trauma, embarrassment and hurt of facing up against the accused. This is no more apparent than in the way we treat victims of sexual violence and rape. The Section 41 rules were a major step forward but still fall far short of what is necessary, and so the amendments in this group would help recognise victims as humans and not just incidental characters in the whole story. Most importantly, they would allow the complainant to have their own independent legal representation in Section 41 applications, rather than relying on prosecution counsel, who, in their role as administrators of justice, have many competing obligations to juggle.

I hope that the Minister will agree that there are still many unsolved challenges in the treatment of complainants, and they are in desperate need of solutions.

[Lord Falconer of Thoroton (Lab)]

My Lords, I should have opened those other amendments, and it is an error on my part that I did not. I am very grateful to the noble Lord, Lord Thomas of Gresford, because he has done a bit of the work that I should have done.

[Lord Judge (CB)]

If the noble and learned Lord decides to open them, which I would welcome, I would like to respond generally. So far, this debate has rushed along, and we were rather waiting for the noble and learned Lord, Lord Falconer, to tell us why he strongly supported all these amendments, and then we will answer them.

[Lord Falconer of Thoroton (Lab)]

The reason I did not tell noble Lords why I strongly supported all these amendments was because I made a mistake and did not realise that they were in the same group until the noble Lord, Lord Thomas, mentioned it. I apologise to the Committee for that error.

May I just go through them? I have done Amendment 268, which concerns Section 28 of the Youth Justice and Criminal Evidence Act. The next is Amendment 286, which proposes to insert a new clause into the Youth Justice and Criminal Evidence Act 1999 and would exclude the admission in evidence, whether by the prosecution or the defence, of any sexual behaviour of the complainant with a third party, for the purpose of showing consent or lack of consent, while leaving evidence of sexual behaviour with a third party admissible if it is relevant to any other issue in the case.

In addition, it sets out a further requirement that, where such evidence is sought to be introduced in relation to an issue other than consent, that material must be more probative than prejudicial, and it sets out the considerations the judge must have regard to in considering that extra requirement. The purpose of this amendment is to give the clearest possible signal that evidence of any sexual behaviour of the complainant with a third party—that is, not the defendant—should be regarded as completely inadmissible on the issue of consent. This is important because it is intended to mark a change from the past, where all too often such evidence is admissible in circumstances where it is of very limited probative value, and the ability of that evidence to be admitted makes people—complainants—incredibly wary of coming forward and making complaints. This is the legislature giving a clear signal that it wants a change in relation to that. That is why it is there.

[Lord Pannick (CB)]

I am sorry to interrupt the noble and learned Lord, but would his amendment mean that if the complainant says, “I would never, ever consent to sexual behaviour” of a particular description, it would not be open to the defence to adduce evidence that that was precisely what the complainant had done with a third party?

[Lord Falconer of Thoroton (Lab)]

It would exclude such evidence; there is no doubt about that, and rightly so, because what the noble Lord is referring to is evidence where the defence says, “Well, you say this in relation to this case, but what about this?” and then refers to another instance of sexual connection and says, “Look what you did there.” The purpose of the provision is to do exactly what the noble Lord, Lord Pannick, says.

[Lord Pannick (CB)]

I would like to test this proposition, because it strikes me as rather surprising. If a complainant says to the court, “Not in relation to this particular person, but I would never ever contemplate” doing something, and there is evidence, otherwise admissible, that she has done so in the past, that seems to be highly relevant to the jury’s assessment.

[Lord Falconer of Thoroton (Lab)]

What I am saying in putting forward this provision is that you want to send a clear signal that a certain sort of evidence is not admissible. In order to make it easier for people to come forward, you need to have much clearer lines than we have had previously. There has been a whole variety of evidence that English law has said is not admissible, even though many people would think it was probative, because it is the safest way overall to deal with trials—it is the safest way to ensure that an appropriate balance is struck between complainant and defendant.

[Lord Brown of Eaton-under-Heywood (CB)]

Surely the noble Lord and the noble and learned Lord must be at cross purposes. The noble Lord, Lord Pannick, put it on the basis that the witness is saying, “I wouldn’t do this, not only with this man but I wouldn’t do it with anybody, ever”, and the evidence is that she has. Is that perjury simply to go unresponded to in any shape or form?

[Lord Falconer of Thoroton (Lab)]

I am afraid I did understand what the noble Lord, Lord Pannick, said. It is exactly as the noble and learned Lord, Lord Brown, has put it. The noble Lord, Lord Pannick, is right in the way that he analysed this amendment: it would exclude that evidence. I understand that that is the consequence, and I am saying it is a good thing.

[Baroness Jones of Moulsecoomb (GP)]

From a woman’s point of view, I would just like to say that there are things I would have done at 20 that I absolutely would not do now, at 70. We can all learn and adapt our behaviour, so the past may not be relevant.

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[Baroness Bennett of Manor Castle]

I point out to all noble Lords who have spoken that victims can be of all genders. It is unfortunate that this debate has been specifically gendered.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness, Lady Bennett, is right. This is about sexual assault on anybody, whatever gender they are.

Does the right reverend Prelate want to intervene? Oh, I am sorry; they are leaving, for fear that it will never end.

Amendment 287 defines consent so that there is clarity about what is meant by consent in the new section of the Youth, Justice and Criminal Evidence Act 1999.

Amendment 288 is a procedural requirement. This proposed new clause would have the effect that no Section 41 evidence or questions—that is, about sexual conduct with a third party—could be admitted by a judge at trial unless there had been an application before trial in accordance with practice directions, and would ban applications being made immediately before or during the trial. It is an important procedural safeguard to ensure that the complainant will know before the trial starts what he, she or they may face.

Amendment 289 would insert a new clause to give the complainant a right of representation with legal aid, if they are financially eligible, to oppose any application to admit Section 41 material about them—that is, material about sexual conduct with a third party. This new clause would also give complainants a right of appeal to the Court of Appeal if the application is allowed in whole or in part. The new clause provides that the complainant is not compellable as a witness at the application. The purpose of these provisions is to recognise that the complainant should be treated as a party, rather than as an outsider, to the proceedings on issues of the extent to which his, her or their past is to be gone through in the trial, and it is perfectly legitimate.

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[Lord Pannick (CB)]

My Lords, I intervened earlier on Amendment 286 because of my concern about an absolute rule in this area. My concern is increased by the practical experience of the noble and learned Lord, Lord Judge, in this matter. I am also concerned about Amendment 289 regarding the complainant’s right of representation in relation to an application and whether there should be evidence concerning sexual conduct, not merely for the reason the noble and learned Lord gave, with which I agree: that the prosecution are ministers of justice and are there to deal with such matters. I am also concerned that this is a recipe for delay. If it is really to be said that the victim is to be separately represented and able to make an application, presumably after notice has been given, and there is to be a right of appeal to the Court of Appeal, that is inevitably going to delay further trials that are already far too long delayed.

[Lord Falconer of Thoroton (Lab)]

On the points made by the noble and learned Lord, Lord Judge, about the criminal procedure rules, I agree with him. There is no need for the Secretary of State to intervene, and I accept that completely. Secondly, I also completely accept his point that the Secretary of State should not be making that determination; that is my drafting error.

I utterly repudiate the point made by the noble Lord, Lord Pannick, about delay and non-representation, a position which the noble and learned Lord, Lord Judge, also adopted to some extent. It is really important that the complainant have, and feel that they have, a voice in the process of what is going to happen to them at the trial. The point about delay could be dealt with by ensuring that these applications are all dealt with before the trial. If there is to be an appeal and the complainant says, “It is unfair that my past is being raked over in this way, I want to appeal”, then there may be occasional cases where there are delays, but their rights should be recognised. The fact that they have a voice is really important.

The noble and learned Lord, Lord Judge, said that the prosecution is there to look after them. My experience is that the prosecution will try as much as possible to look after them but that they should have a separate voice. They will frequently feel—not because the prosecution is in any sense not doing his or her duty, but because they feel their voice is not adequately represented—that they should have a separate voice because they have separate concerns from those of the prosecution, which has to look at the situation not just from the point of view of the complainant but in a wider context. So I accept two out of the three points made by the noble and learned Lord, Lord Judge, but none of those made by the noble Lord, Lord Pannick.

On the first point made by the noble and learned Lord, Lord Judge, regarding cases where it is vital to know what the position is—he gave the example of a trial he had heard—I am keen to draw a line so that people know where they stand, just as, in relation to the rules of evidence over many centuries, English law has said that some evidence is admissible and some is not, even though from time to time, it has been obvious that the inadmissible evidence might have been very compelling, but for reasons of bigger policy it was inadmissible.

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[Lord Falconer of Thoroton (Lab)]

I am grateful to everybody for taking part in the debate and very grateful for the care with which the Minister answered the issues. I am disappointed with his response on Section 28 and making sure that it is available in all courts in England and Wales. He said that he wanted to test the technology first, but there have been three pilots going for some time. I found that answer not altogether convincing so may come back to that matter on Report.

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Moved by

[Lord Falconer of Thoroton]

269: After Clause 170, insert the following new Clause—
“Assistance for bereaved persons and core participants at inquests and public inquiries
(1) With respect to inquests, and public inquiries relating to deaths or serious injuries, and where one or more public authority, or private entity whose relevant activity falls within subsection (2), are designated as “interested persons” (IPs) or “core participants” (CPs), bereaved IPs and CPs shall be entitled to publicly-funded legal assistance and representation at the same level or in proportion to the resources provided to the public authority or private entity, as set out in Schedule (Assistance for bereaved persons and core participants at inquests and public inquiries: amendment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012).(2) Relevant activity of a private entity falls within this subsection where it—(a) is delegated or contracted from a public authority, or(b) is one where the private entity or individual owes a health and safety responsibility to the public or a section of it, including but not limited to sporting, leisure and entertainment events and premises, public transport systems and the provision of utilities and retail facilities.”Member’s explanatory statement
Combined with the proposed new schedule to follow Schedule 20, this amendment would ensure that bereaved persons and core participants at inquests and public inquiries received legal aid proportionate to the legal expenditure by any public authorities involved in the inquest or inquiry (so-called “equality of arms”).

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[Lord Falconer of Thoroton (Lab)]

My Lords, this is a completely different topic. Amendment 269 would

“ensure that bereaved persons and core participants at inquests and public inquiries received legal aid proportionate to the legal expenditure by any public authorities involved in the inquest or inquiry”.

It is, in effect, the equality of arms measure.

In the Hillsborough situation, people suffered an incredibly grievous wrong in respect of their loved ones, then found themselves ranged against lawyers and QCs. As a QC myself, I make it clear that there is nothing intrinsically wrong with QCs, but imagine finding yourself ranged against seven public authorities, all of which have an interest in trying to ensure that their public authority is exonerated, while the individual victims have no right to legal representation at all. They may get the benefit of discretionary funding from the Lord Chancellor, who can give that funding for inquests, but it is entirely at the discretion of a Government Minister. That is inappropriate. In relation to these sorts of cases, the right course is that where there is a big disaster, the people who are most affected should be able to appear at the inquest, which is going to affect what may happen in the future, while having equality of arms with the person or bodies against whom they will be ranged.

Amendments 270 to 274 intend to establish

“a public advocate to provide advice to representatives of the deceased after major incidents.”

So many families affected by a major incident have nowhere to go because there is no lawyer experienced in these sorts of matters. They have nobody to speak on their behalf and find, all too often, the public sector unwilling to give them help—for fear that individual members of the public sector may be making their own section of it liable to some sort of damages in court subsequently. The public advocate scheme is a means of providing support for the victims in those tragedies. I very much hope that the Government will listen, look at these amendments favourably and recognise the injustices that have occurred over the years as a result of there not being proper representation at inquests nor a public advocate to speak for the victims of these disasters. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise to offer Green support for Amendment 269 in the name of the noble and learned Lord, Lord Falconer, to which I have attached my name. I offer support for all the amendments here. The noble and learned Lord spoke about a big group case affecting many people. I shall to a single case.

In 2014, a seven-year-old boy, Zane Gbangbola, went to sleep in his bed. He never woke up, and his father, sleeping nearby, has been forced to use a wheelchair ever since. The Fire Brigades Union, the PCS Union and many other people—including his father Kye’s doctors—were convinced that Zane was poisoned by hydrogen cyanide gas that came from a landfill site nearby, carried by floodwaters. Before this tragic event, the Environment Agency had actually protected its own staff in a nearby building with a special membrane in the foundations to ensure there was no risk of an event like this.

There was, of course, an inquest. At that inquest no fewer than six public bodies, whose actions might have been called into question, were represented by the best legal counsel money can buy—with public money. The Gbangbola family was denied legal aid, so the grieving parents, sitting in a court room and hearing the most awful possible details about their son’s death, were forced to operate with only limited legal support, with funds raised by a public appeal. As the noble and learned Lord said, the European Convention on Human Rights calls for an equality of arms in trials. There was no such equality at Zane’s inquest.

We also need to stress the public interest concern here. As was the case, tragically, in Zane’s death, we know that the world is facing new dangers. The country is facing new dangers. We need honesty and transparency about what those are. The weather that led to that flooding was linked to the climate emergency. Several years after this, Kye Gbangbola said

“we need to unlock the doors for the truth to come out”.

This is about the death of one child, but it is also about the safety of everybody. The lack of legal aid at that inquest was a factor in the truth not coming out. The family is continuing to campaign. Indeed, I was in Glasgow with them at a side event to the COP 26 climate talks. They are calling for a Zane’s Law to address weaknesses in our law that were deliberately introduced a decade ago, putting profits before human lives. This is why the seven amendments about a public advocate are terribly important. We cannot rely on families—indeed, sometimes there will not be a family—in a case where someone has died, to ensure that the courts are helping us to uncover what actually happened in the case of tragedies.

Had there been equality of arms at Zane’s inquest, we might be much further down the road to getting a change in the law that we all need to keep us safe. I strongly urge the Government to act on all of these amendments, but particularly Amendment 269 and the related amendment, not just for Zane or the Hillsborough families but for everybody.

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[Lord Stewart of Dirleton (Con)]

Before the noble and learned Lord, Lord Falconer of Thoroton, replies, I should say that I did not make reference specifically to the point raised by my noble friend Lord Mackay of Clashfern, in relation to the proposal that he and the noble Lord, Lord Rosser, advanced for the funding of representation in these areas. I will undertake to have the department of my noble friend Lord Wolfson of Tredegar look into the response that was made to the proposal which my noble and learned friend and the noble Lord put forward at that time and see if an answer can be given to the Committee at some appropriate stage as to how that was considered and what conclusions were reached.

[Lord Falconer of Thoroton (Lab)]

I am very grateful to everybody who has spoken in the debate. Everybody apart from the Minister supported the principle. There were various specific suggestions as to how the proposal could be improved, which I certainly take on board. As ever, the noble and learned Lord, Lord Mackay of Clashfern, put forward an incredibly sensible proposal. Amendment 269 says that if a public authority is designated an “interested person” or a “core participant”, then legal aid should provide funding proportionate to that to the families. I think the noble and learned Lord, Lord Mackay, is saying, “Let the relevant interested party or core participant from the public sector pay for it”, and I would not have any objection to that.

I have to say that the Minister’s response was awful—and this is not in any way intended to be an attack on the noble and learned Lord, Lord Stewart of Dirleton, who delivered, as ever, a very careful answer. It was awful because it indicated that the Government are going backwards. It represented a degree of complacency about the problem that was entirely unwarranted. The noble Baroness, Lady Newlove, very effectively expressed what the problem was. The noble Lord, Lord Beith, indicated, quite rightly, that this problem has existed for a very long time.

The problem was exemplified by the Hillsborough case. The families, having had a very fair hearing from Lord Justice Taylor in the public inquiry, then attended an inquest, day after day, having to cross the Pennines to get there, where they saw the findings of Lord Justice Taylor, as he then was, eroded by representatives of public authorities able to take advantage of their total inequality of arms, aided and abetted by some elements in the press—not all the press, but some elements—which used the process to denigrate those who had died. It was absolutely appalling.

The issue is not just the suffering of the individuals but the disrepute into which it brings our legal system. If our legal system is unable to come to an appropriate answer because of the inequality of arms—all the public authorities are represented by all the lawyers in the world and the families, who have a cause and are right, cannot get their position across—then what good is our legal system? That is the point that everybody in the debate has been talking about, and the Minister’s answer showed absolutely no appreciation whatever that that is the problem.

We will not have another opportunity to come back with something. Amendment 269 and the schedule to be put in after Schedule 20 deals with it by ensuring that where there is a public authority in the firing line, the families should be represented. I note what the noble Lord, Lord Sandhurst, says, but all too often long-running problems with particular health bodies never get properly recognised because ultimately the health body is properly represented and the families are not. We will be back. In the meantime, I beg leave to withdraw the amendment.

Amendment 269 withdrawn.

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My amendment would be a desirable and welcome step forward in improving the quality of the service for all concerned. It would be a logical development and progression from the existing MoJ system to a more tried and tested format.

[Lord Falconer of Thoroton (Lab)]

Before the noble Baroness sits down, may I ask a question? Her amendment refers to every court or tribunal. Knowing how the courts are operating, for example, in family law, the urgent need for an interpreter happens every single day when urgent decisions have to be made about children. How long would it take to find an interpreter in such a case if her provisions, which I see as having great strength in criminal trials, were in force?

[Baroness Coussins (CB)]

I can answer that only by saying I would have to consult the national register and chartered institute to find out how quickly they respond now and how that compares to the MoJ system. I agree it is an important element. Part of the problem will be the supply chain, but I think these issues can be overcome. I beg to move.

Queen’s Speech

Lord Falconer of Thoroton Excerpts

Thursday 13th May 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I send my most profound and real congratulations to the noble Baroness, Lady Fraser of Craigmaddie, who delivered a speech which everybody who heard it thought was absolutely first class. It took on serious issues and addressed them brilliantly. I think we all share her view that we should do everything in our power to allow other people to shine, and I strongly welcome the second choreologist into the House of Lords.

I say a special, very personal and admiring welcome to my noble friend Lady Merron. We were in government together. I do not want to shock noble Lords, but in politics there are some people who are not that great and some very good people, who fight the good fight all the time. My noble friend is one of those, who I saw with my own eyes fighting the good fight in government for Lincoln. I know her grandparents would be proud of how well she has done, because she is their granddaughter, but they would also be proud because of the exceptional things that she achieved and will achieve. She is so welcome here.

Before I come to the contents of what the noble and learned Lord said, I shall mention two matters. First, on the House of Lords, I draw attention to my noble friend Lord Grocott, who is in his place. He made the point that we shame ourselves in this House by going on with the by-elections for the hereditaries. We make a profound mistake by thinking that we have to go on with them. The form of legislation adopted in Section 2(4) of the 1999 Act was that the hereditaries would stay and the Procedure Committee would then make arrangements for there to be by-elections. It was not mandatory; the legislation did not say that was the way it had to be done. It is plain what was envisaged at the time.

My noble friend Lord Grocott was not there at the time but I was, as was the noble Lord, Lord Strathclyde, who I am glad to see in his place and who is an accurate describer of the position: he said that the purpose was to be a guarantee of the second stage. I have tragic news for the noble Lord, Lord Strathclyde, and everybody else in the Chamber: the second stage is not coming. How do I know that? We have had six general elections since the 1999 Act and a botched attempt at Lords reform by the coalition Government, which was rejected. It is over.

It is open to us now as a House to say, legally, that we do not need to go on with this anymore, and I strongly urge the House to look at that because I have more bad news for it: the Commons will not agree to the change in hereditary by-elections. It is time for us to do it. The deal that was done allows that to happen once the second stage is not going to happen, which it is not. I am glad to see the noble Lord, Lord True, in his place because he, too, was a witness to the events that occurred at the time.

That is all I want to say about the House of Lords, except that I completely agree with the noble Lord, Lord Wallace of Saltaire, about what a bad loser the noble Lord, Lord Strathclyde, turned out to be. He defeated a Government whenever he was in opposition and then complained when we did it. Keep going, I say to the Cross Benches, in showing the Government what is wrong. That the Government are getting defeated all the time is not a constitutional problem; the problem is the appalling quality of what is coming in the form of legislation. Perhaps the way to avoid defeats is to look at that, rather than at the fact that people are saying no to the Government on a regular basis.

I shall mention one other point, which was made by my noble friend Lady Quin. She said that we need to look again at what form any referendum would take. I do not mean whether or when we should have one but that the terms of referendum, the particular majorities needed, the thresholds required and what triggers them need to be looked at again. I strongly agree with her on that.

I move on to the constitutional issues in the Speech, and, goodness me, I agree with the noble Lord, Lord Wallace of Saltaire. The noble and learned Lord, Lord Stewart, made a most extraordinary speech—it was not a bad speech at all, but a speech of Walter Mitty, living in an alternative universe, where absolutely everything in the garden is rosy. “By the way”, he said in the final two minutes, “this is what we have done on the constitution”. In a skilful advocate’s trick, he said nothing of value, because there is nothing of value on the constitution, except one thing, in this Queen’s Speech. I strongly commend him for spending absolutely no time on the constitution because there is almost nothing there.

Perhaps I may identify what is there. First, there is the repeal of the Fixed-term Parliaments Act. I support that; it is a good thing. If you had to make a judgment about the quality of the Government who produced that Act, you would give them, on the constitution, gamma minus. The big problem, as has been said repeatedly, was that the Act gave effect to a deal to ensure that the Lib Dems would not be cast out to darkness before the end of the five years of that term. The consequences were put best by my noble friend Lord Grocott: the question of the House of Commons retaining confidence in the Government was thrown out of the window as a result of the provision of a formula through which confidence could be lost, and so when it was obvious that confidence had been lost—which it was during the May Government—they did not then resign as they should have done. Instead, they referred to the Fixed-term Parliaments Act, which set out mechanistic standards. It is a thoroughly bad Act.

I strongly agree with my noble friend Lady Taylor of Bolton, whose report published today on the effect of Covid on Parliament I strongly commend. I agree with her that we need to look closely at the terms of the repeal Bill, to ensure not that we cannot go back to what was there before—I think we can, legislatively—but that what happened in the period between 2017 and 2019 does not become in any way a precedent for what constitutes a Government losing the confidence of the House of Commons. Three times the Government’s major piece of legislation or activity was rejected by the Commons by a massive majority. The situation reached was that that did not constitute a loss of confidence in the Government. That completely poleaxed our constitutional system at that point. Nobody should be able to say, after the passage of the new Bill, that that could happen again. You therefore have to scrub the precedential effect of those three votes in the Commons.

It is absolutely obvious that the rebalancing Bill is the revenge on the Supreme Court for its judgments on the Prorogation. The noble Lord, Lord Moylan, asked: whoever agreed democratically to judicial review? Those who agreed to it were the people, because what they get from it is the Executive being held to what Parliament has decided. Some 99% of judicial reviews are the courts saying to the Government, “You haven’t done what Parliament said and, if you want a democratic system in which Parliament passes Acts that are then given effect to, you have to have judicial review”. Otherwise, who is there to ensure that what Parliament wanted is put into effect? That is how it has worked. No one in this House, with the possible exception of the noble Lord, Lord Moylan, and the Front Bench giving effect to what the Government want, would want to reduce Parliament’s views being given effect to. The rebalancing Bill is thoroughly pernicious.

The Government set up the Faulks committee. I was worried that it would do what the Government wanted but, to its great credit, it did not. It said no to any significant restriction of judicial review. So what happened? This Government simply rejected, in reality, the wishes of the Faulks committee because it said that judicial review worked well. And now what is happening? The Government are proposing in this Bill to make it much easier to oust judicial review.

We will end up in a position like the Bill dealing with the 0.7% aid figure: there is a Bill that says it is the duty of government to spend 0.7% of GDP on foreign aid but there is a clause saying that this is not justiciable in the courts at all—although there is a very big question as to whether or not that will work in the courts. Now the Government want to pass a Bill that says, “Henceforth we will promise to do things”, but with a bit of small print saying, “Actually, we will not give effect to them”. The rebalancing Bill is dangerous and should be resisted.

The electoral integrity Bill is Orwellian in the awfulness of its description, as everyone has said. The electoral integrity Bill requires you to produce photographic ID. There was one conviction in 2019, as everyone knows, but in the test, 800 people could not vote because they could not produce photographic ID. It is an absolute outrage. Let us have Ruth Davidson here as quickly as possible to use obscene language to describe how awful that Bill is. It is shaming that the Government are willing to produce a Bill that is plainly intended to rejig the system against Labour. People will not trust the electoral system if they go on behaving like that. It is much more serious than we make it sound, because it indicates that the Government are willing to tamper with the electoral system, as they tried to do in 2011. As someone said, that attempt was scotched in the end because it was a bad Bill. This is another bad Bill.

So what have we got? We have three things: one is the repeal of the Fixed-term Parliaments Act, and the Government get some marks for that; the rebalancing Bill is a thoroughly nasty piece of legislation, designed to punish the judges; and the electoral integrity Bill is laughable in the way that it is described and dangerous as far as the system is concerned.

Everyone in this debate has agreed that the Government should be focusing on devolution and ensuring the continuation of the union. What is there in the Queen’s Speech about that? There are words to the effect of “We wish to preserve the union”. I do not doubt the sincerity of that, but there is nothing in the Queen’s Speech to address that issue beyond that assertion. My noble friends Lady Crawley, Lady Wilcox of Newport, Lord Anderson of Swansea, Lord Elder and Lord Liddle, and my noble and learned friend Lord Morris, rightly identified the danger to the union at the moment. They all said, one way or another, that the Government need seriously to rethink devolution and address the issue, or the union is in danger of being lost.

The three issues that the Speech should have addressed are: first, the union; secondly, making sure that there are proper checks and balances on the Government, by which I mean the courts, the enforcement of the Ministerial Code and the independence of the Civil Service; and, thirdly, something to ensure a proper degree of regional autonomy. Those are the three things that should have been addressed, but there was none of it. The threat to the constitution is serious, but the Government have proposed to do nothing about it.

Counter-Terrorism and Sentencing Bill

Lord Falconer of Thoroton Excerpts

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

[Lord Paddick (LD) [V]]

My Lords, as the noble and learned Lord has explained, most of these amendments are technical in nature. The first group relates to a person who is serving an extended sentence in respect of a terrorist offence.

Amendments 27 to the end of the group amend Schedule 13. As the noble and learned Lord has explained, in Scotland—unlike in the rest of the UK—multiple sentences being served concurrently or consecutively are amalgamated into one sentence with one release date. This is known as “single terming”. Part 7 of Schedule 13 disapplies single terming for individuals where one of the offences is a terrorism offence, to ensure that the provisions of the Bill apply correctly. The noble and learned Lord did not exactly say that, but that is what he meant.

I had two questions for the Minister. The noble and learned Lord has already answered the first—on Amendment 31. The second is about Amendment 43, which makes changes to Section 24 of the International Criminal Court (Scotland Act) 2001. Can the noble and learned Lord give the House some idea of the extent of this change? How many prisoners serving sentences in Scotland have been sentenced by the international court, and what is the effect of these changes on them?

I gratefully acknowledge the support of the noble Lord, Lord Thomas of Gresford, in advising me on these matters.

[Lord Falconer of Thoroton (Lab) [V]]

My Lords, I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for explaining these measures. It would probably be helpful for a similar letter to that provided in Committee to be placed in the Library of the House so that we can have a clear view about it.

We do not object to any of these amendments. They have a quite significant effect on a very small number of cases, because the consequence for people convicted of a serious offence and a serious terrorist offence is that they may stay in prison for years longer. But that is the policy decision and the consequence of the Bill, and I accept that.

I am slightly anxious that this has happened so late in the process and that what the Bill contains depends on when the music stops. The Bill was introduced in the Commons in May 2020. Ten months have gone by. There has been this quite massive change of effect on a few cases. Can the noble and learned Lord explain how that has happened? I was struck by the noble Lord, Lord Wolfson, saying to the noble Lord, Lord Carlile, that he was happy to continue discussions on the issues. This is good and nice, but the Bill has a cliff edge. I worry that it is very late in the day to make these sorts of changes but, as I said, we do not object to them.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to both noble Lords for their contributions to this very short debate. The noble Lord, Lord Paddick, asked about the number of prisoners affected by this in relation to the International Criminal Court. I do not have that information to hand, but I undertake to supply it to the noble Lord.

The noble and learned Lord, Lord Falconer of Thoroton, raised the lateness in the stage of proceedings at which this amendment has been tabled. I acknowledge the complexity of the statutes involved and the alertness of those in my office, the Advocate General’s office, and in the Scottish Government who are monitoring the position. There has been useful and effective collaboration between them. I will look into the matter raised by the noble and learned Lord and see whether I can provide any further detail as to why these points were identified only at this stage. If I can identify anything specific, beyond my general answer relating to the complexity of the relevant provisions, I will provide it to the noble and learned Lord in writing.

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Government Amendment 22 to reinstate the requirement for an annual review of TPIMs is welcome—although, as my noble friend Lady Hamwee said, we are concerned about potential unintended consequences and, as the noble Lord, Lord Anderson of Ipswich, said, it must be provided the Independent Reviewer of Terrorism Legislation is given the necessary resources to conduct these reviews—but not sufficient for us not to oppose the changes to TPIMs that these clauses propose. Please add my voice and those of my noble friends in favour of any Divisions that might be called in this group.

[Lord Falconer of Thoroton (Lab) [V]]

This is an incredibly important debate, because it goes very much to the heart of the views we take on what the Executive can do. It is anathema to our system that the Executive can impose restrictions on individual citizens on the basis of either the balance of probabilities or, worse, reasonable suspicion. Any restrictions placed must be justified, normally in a criminal court or, in the context of the current pandemic, by an exceptional event such as the pandemic.

All those who have engaged in this debate have accepted the need for some form of TPIM. On behalf of my party, I accept that too, but all our instincts should say that it should be on the most limited ground necessary at any point. I strongly opposed, as my party did, the idea that one can impose a TPIM on the grounds of suspicion alone and welcome Amendment 14, in which the Government reject that approach and go for a situation where the Minister “reasonably believes” that the person has been engaged in terrorist activity. The difference between “reasonably believes” and “balance of probabilities” seems in practice quite difficult to define; the Minister has to believe that the person has been engaged in terrorist activity and he or she must have reasonable grounds for believing so. What is the difference between having reasonable grounds on one hand and believing it on the balance of probabilities on the other, when the person who will test that is the courts? I think it is quite fine, but we will support government Amendment 14. I am grateful that they have listened; it is a very significant shift. The difference between honestly and reasonably believing something and suspicion is significant.

I am very disappointed that the Government persist in the idea that, once you have the basis for a TPIM, you can roll it over indefinitely. As various noble Lords have pointed out, the inclination of the Executive will be to roll these things over without further evidence. Therefore, we on this side of the House will also support Amendment 16.

Four years is a long time, longer than allowed at present and, what is more, the four years can be extended if new evidence emerges during that four-year period. We think there should be a limit on when a TPIM can be granted, where there is evidence for it. We would need new evidence to extend it beyond the four years. We think that four years is a long time, but we recognise that if the House backs this four years, that is the basis for a compromise we very much hope the Government will accept.

Amendment 22 would compel the Independent Reviewer of Terrorism Legislation to conduct an annual review in relation to TPIMs. I think that is right. I agree with everybody who has said that the independent reviewer has to be properly resourced to do it. This is such an exceptional power that I think it is right that the independent reviewer should look at it every year.

On the proposition that there needs to be a limit on the period of restriction that is required in a particular home, because the power is going to be amended to remove the reference to “overnight”, the Government have given assurances that there will be such a limit, because of the courts’ imposition of limits to ensure that nobody is imprisoned in their house for 24 hours a day, which is what the noble Lord, Lord Strasburger, said the consequences of the section would be. That is not my understanding, legally, of the consequence of the removal of “overnight”, but I would like the Minister to repeat that assurance and also to say that if the court protection went, the Government would come back to ensure that it could not involve 24-hour imprisonment, in effect, in a particular house.

These are exceptional powers. Our role in this House is to ensure that they are subject to specific limits. I think the combination of government Amendment 14, Amendment 16, in the name of the noble Lord, Lord Anderson, and government Amendment 22, which would compel an annual review, is a workable compromise. I am very disappointed that the Government are not accepting it at the moment.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, before I turn to the amendments to which I have not yet spoken, I will address a question from the noble Baroness, Lady Hamwee, on government Amendment 22, about the requirement for the independent reviewer to produce an annual report every year for the next five years. She is right to say that the independence of the independent reviewer means that he could, if he so wished, provide such a review, but we want to ensure that he does so, because of the changes that are being made by the Bill. We, like a number of noble Lords who cited his work and that of his predecessors, find them useful and would find it useful to receive them over the next five years. We do not think that is unduly burdensome, as the noble Baroness suggested it might be. Indeed, that is evidenced by the support of the current independent reviewer, Jonathan Hall, for the amendment. I hope that that reassures her on that point.

I turn to the amendments. Amendment 15, in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would remove Clause 34 in its entirety, and in doing so prevent the Government lowering the standard of proof for imposing a TPIM to “reasonable belief” of involvement in terrorism-related activity. As I set out earlier, the Government have listened to the concerns raised in Committee and brought forward a compromise, by lowering the standard of proof to a lesser extent than originally envisaged; namely, “reasonable belief” instead of “reasonable grounds for suspecting”. We are confident that this approach represents an appropriate middle ground, one that ensures we are taking action to protect the public from an evolving and more diverse terrorist threat, while addressing the concerns that were expressed in Committee. Of course, “reasonable belief” is a standard which has been used in the past, having first been introduced in 2011 by the coalition Government, which included the Liberal Democrats as well as my own party.

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[Lord Paddick (LD) [V]]

My Lords, my noble friend Lady Hamwee has explained Amendments 19 and 20 to the House, and it would serve little purpose to repeat that as we will not be dividing the House on them.

As my noble friend has said, compulsory polygraph tests for those convicted on licence from prison are one thing, but such tests for those not convicted of any offence, who have a right to silence when being questioned, is quite another. It is a long-established principle that a suspect in criminal proceedings should be protected from any adverse consequences of remaining silent. Clause 38 allows the Secretary of State to impose a requirement for an individual subject to a TPIM to participate in polygraph sessions and to comply with instructions given to the individual by the polygraph operator. Although any statement made by the individual while participating in the polygraph session cannot be used against them in any proceedings for an offence, a failure to answer questions could be taken as contravening a measure specified in a TPIM notice—that is, to comply with the instructions of the polygraph operator, so, in this case, the instruction to answer questions. Remaining silent during a polygraph session could therefore be an offence under Section 23 of the Terrorism Prevention and Investigation Measures Act 2011, for which the individual is liable on conviction to imprisonment for a term not exceeding five years.

If the person is convicted of a terrorism offence and is on licence and subject to a TPIM—unlikely but possible—it would be possible for them to be subjected to polygraph tests under Clause 32 of this Bill, and a failure to answer questions in those circumstances would be a breach of the licence. While we have reservations about that, we do not object to it being part of the Bill. However, if the person is not convicted and is subject to a TPIM, they have the right to silence and to be protected from any adverse consequences of remaining silent. Potentially being imprisoned for five years for failing to answer questions during a polygraph session is an adverse consequence, and we therefore intend to test the opinion of the House on whether Clause 38 should be part of the Bill.

[Lord Falconer of Thoroton (Lab) [V]]

My Lords, the effect of the Bill at the moment is that a condition of a TPIM can be that the subject takes a polygraph test, and that a failure to do that could be a breach of the TPIM’s provisions. Amendment 21 raises the question of whether that should be part of a potential TPIM. In answering that question, it is important to try to find out what the Government have in mind regarding the use of that provision. First, to what extent do they regard polygraph answers as reliable? There is a general view that they cannot be taken on their own. What is the Government’s view on that?

Secondly, will the Government introduce a code of practice, as envisaged by Amendment 19? If so, could they give some indication of what that would contain? In particular, would it be based on the American Polygraph Association’s code of practice?

Thirdly, in December 2020 Her Majesty’s Prison and Probation Service announced that it would be seeking a long-term commercial partner to deliver polygraph equipment, training and support services for the sum of £2 million. When this was announced by the Government, it was noted that any partners must provide training to the standard approved by the American Polygraph Association, which is a trade body. Can the Minister give an indication of how that is going?

Will the Minister confirm that the Government will not act solely on the basis of any physiological reaction of the individual while being questioned in the course of a polygraph examination, and that the effect of a “significant reaction” in a polygraph examination will simply lead to further inquiries being made?

There has been, over quite a long time, a legitimate—in the sense of authorised by legislation—use by the Home Office of polygraph tests in relation to sexual offenders. According to Home Office figures, over the last five years 5,228 mandatory polygraph examinations have been carried out on 2,249 sexual offenders. Will the Minister describe to the House what benefit has been obtained from this and the basis of any assertions of that benefit?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the three amendments in this group stand in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. Amendment 19 would oblige the Secretary of State to publish a code of practice on the conduct of, and use of results from, polygraph examinations, with a requirement to consult appropriate parties on the code before its publication.

We think that such an amendment is not necessary, since equivalent provision is already made by new paragraph 10ZA, which Clause 38 of the Bill will insert into Schedule 1 of the TPIM Act 2011. As the noble Baroness, Lady Hamwee, noted, Clause 38 includes a regulation-making provision for the conduct of TPIM polygraph examinations. The new polygraph measure will not be used within the TPIM regime unless and until such regulations have been made.

These regulations are expected to include detail on, for example, the qualifications and experience needed by polygraph operators; how records of the polygraph examinations should be kept; and how reports on the results of the examinations should be prepared. This will ensure transparency in how the polygraph measure in the TPIM regime will be applied in practice.

This approach follows the practice already established by the Ministry of Justice, which has set out its use of the polygraph in licence conditions of sex offenders in the Polygraph Rules 2009. Parliament will have the opportunity to scrutinise these future regulations and they will, of course, be subject to annulment by your Lordships’ House or the other place. As such, we believe that Amendment 19 is unnecessary, and I urge the noble Baroness to withdraw it, as she indicated she might.

Amendment 20 seeks to prohibit the extension of a TPIM notice on the basis of information derived from a polygraph test. Again, we do not think this is necessary. Clause 38 specifies the purposes for which the Home Secretary may impose a requirement on an individual subject to a TPIM notice to participate in polygraph examinations. These are, first,

“monitoring the individual’s compliance with other specified measures”

and secondly,

“assessing whether any variation of the specified measures is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity”.

The reference in new heading (ii) to

“variation of the specified measures”

means variation of the measures set out in Schedule 1 to the TPIM Act 2011, and the duration of the TPIM is not one of those measures. Extension of the TPIM for a further year can be done only by relying on the power in Section 5 of that Act, not by way of varying measures. Therefore, any attempt to use information derived from a polygraph examination to extend the duration of a TPIM notice would be unlawful. I hope that provides some assurance to the noble Lords and that they will therefore be willing not to press Amendment 20.

Finally, Amendment 21 would remove the addition of a polygraph measure to Schedule 1 to the TPIM Act 2011 entirely. The Government cannot accept that. Adding a polygraph measure to Schedule 1, where the measure is assessed to be necessary and proportionate, will help our operational partners to assess an individual’s compliance with his or her TPIM notice. This might include being asked whether engagement with rehabilitation programmes is genuine or whether someone is, for instance, meeting prohibited associates. The insights gained from a polygraph examination will support decision-making on whether the TPIM notice should be varied, including the relaxation of measures or further restrictions.

The polygraph measure will not be mandatory for all TPIM subjects. It will be used sparingly and only where necessary and proportionate to restrict a subject’s involvement in terrorism-related activity. Whether it is judged necessary will be determined by the Security Service on a case-by-case basis and a recommendation will be made to the Home Secretary.

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[Lord Thomas of Gresford (LD) [V]]

My Lords, Clause 48 deals with the extent of the Bill. It provides that

“A provision of this Act which amends, repeals or revokes an enactment has the same extent within the United Kingdom as the enactment amended, repealed or revoked.”


Under subsection (2), provisions that do not amend, repeal or revoke an existing enactment extend to all four nations—England, Wales, Scotland and Northern Ireland—save for two limited exceptions, in that Clauses 21(2) and 44(2) are of a limited nature, referring to retrospectivity.

It is not easy to extract the purpose of Amendment 26. Someone in the Ministry of Justice has concluded that there are problems under the Armed Forces Act 2006. Proposed new subsection (4A) suggests that, in the context of jurisdiction under the Armed Forces Act 2006, all the provisions of the Bill extend to all four countries. This is so even if an amendment repeals or revokes a provision of an existing Act that does not have that extent.

Under proposed new subsection (4B), the provisions of the Act extend outside the United Kingdom to the extent set out in Section 384(1) and (2) of the Armed Forces Act. That section applies to the Channel Islands, the Isle of Man and overseas territories excluding Gibraltar. British Overseas Territories do not include Cyprus, Belize or Gibraltar itself, which is specifically excluded. Those are all venues where I, as chairman of the Association of Military Court Advocates, know that courts martial take place.

Those are three places, and I am sure there are more, where courts martial take place—not to mention Germany, where the facilities have ceased. Courts martial can, of course, take place anywhere in the world, if properly constituted, and if charges for service offences are brought against anyone who is subject to the Armed Forces Act.

Terrorism exists outside the overseas territories. I would very much welcome clarification as to what happens if a court martial is held outside the United Kingdom, but not within those overseas territories to which the Armed Forces Act applies. I cannot help feeling that I am missing something, but the statement attached to the amendment is not at all clear—even though it states that the purpose of the amendment is to clarify the position. I look forward to the Minister doing so.

[Lord Falconer of Thoroton (Lab) [V]]

I endorse the question so clearly put by the noble Lord, Lord Thomas of Gresford. Despite the clear explanation given by the noble Lord, Lord Wolfson of Tredegar, I am still struggling with this amendment. Can he tell us the sort of problem that proposed new subsection (4A), which Amendment 26 seeks to insert into the Bill, tries to deal with? What is the lack of clarity with which he was concerned? Can he also indicate whether there are any implied provisions put into the Armed Forces Act by this Bill?

Proposed new subsection (4C)(a) specifies:

“a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006”.

Can he indicate what sort of provision that is aimed at? I would find it really helpful, in relation to proposed new subsections (4A) and (4B), to have an example of a problem that these two provisions would solve.

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Falconer of Thoroton, for their contributions and questions. The position, so far as I can assist the House now, is that the amendment ensures that the provisions of the Bill which amend, modify or are applied by the Armed Forces Act 2006 have the same extent as that Act. That Act extends to the UK, Isle of Man, and British Overseas Territories, excluding Gibraltar, and can be extended to the Crown dependencies.

The Armed Forces Act 2006 is the main piece of primary legislation that establishes a service justice system. It uses a modified form of sentencing law of England and Wales for sentences imposed by the court martial, as the noble Lord, Lord Thomas, stated. The burden of the amendment is to ensure that the Armed Forces provisions in the Bill have the same extent as the Armed Forces Act 2006. This would ensure, therefore, that there is a correlation of the area over which the provisions apply.

On the specific question from the noble Lord, Lord Thomas, on what would happen outside the territories covered by the Armed Forces Act, I am conscious that I would probably be straying into MoD territory rather than MoJ territory. I hope that the noble Lord, Lord Thomas, will allow me to write to him on that so he gets an accurate and complete answer.

As to the point raised by the noble and learned Lord, Lord Falconer of Thoroton, on whether there is an implication in the Bill that is caught by proposed new subsection (4C), perhaps I can send him a letter on that, rather than risk getting the answer wrong, I am tempted to say that these are standard words used in Acts of Parliament about what is implied, but I understand the burden of his question and, if he will permit me, will send him a written response. I hope that I have responded to the points put to me and I commend this amendment to the House.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Falconer of Thoroton Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Lord Paddick (LD) [V]]

My Lords, as the noble Baroness, Lady Chakrabarti, said in her opening remarks, these amendments are about maintaining the status quo—the public interest defence. She described additional safeguards against a rogue prosecutor—potentially of self-defence, necessity and duress—but of course these mechanisms are already in place, and they are put into the amendment to provide clarity.

I am very glad to have heard from the noble Baroness, Lady Richie of Downpatrick, with her valuable experience in Northern Ireland. As the noble Baroness, Lady Warsi, said in her very powerful remarks, the co-signatories to the amendment are from very different backgrounds. I remind the Committee that I was a police officer for over 30 years and was at one time a controller of informants—covert human intelligence sources, as we now call them.

As I said, these amendments, to which I have added my name, are about keeping the status quo by ensuring that there is a legal power that allows public authorities to authorise CHIS to participate in crime but leaving the question of immunity from prosecution to prosecutors, looking at all the circumstances after the fact.

At Second Reading, the Government made two arguments against maintaining the status quo: first, that it is “undesirable” for the police, for example, to authorise people to commit crime, and, secondly, that it is “unfair and unreasonable” for CHIS to operate under the possibility that they might be prosecuted. In other words, the status quo is not desirable, not fair and not reasonable.

Let me deal, first, with the argument that it is “undesirable”. Can the Minister please explain to the Committee the difference between it being undesirable to create an express power for public authorities to authorise activity that remains criminal and it being undesirable to create an express power for public authorities to make criminal activity legal? Or, to put it another way, what is more or less desirable—a public authority telling someone to commit crime or giving a public authority the power to say something that is a crime is not a crime?

Is it not fundamental to the rule of law that the law applies to everyone equally and that it is clear what is and is not a crime? The Government propose to make legal an act that would otherwise be a crime, and to make the criminal law apply to everyone, except CHIS, who are authorised under CCAs. For example, Section 11 of the Terrorism Act 2000 would in effect change to “a person commits an offence if he belongs or professes to belong to a proscribed organisation, unless he is authorised to belong to it by a criminal conduct authority, in which case he does not commit an offence”. The law, in effect, becomes “it is an offence/it is not an offence, and it applies to some people but not all”.

The effect of accepting these amendments is to say that, of course, belonging to a terrorist group is an offence, but it is clearly not in the public interest to prosecute this person because he was asked to belong to, or to continue to belong to, a proscribed organisation by an agent of the state, and that was necessary and proportionate. Immunity from prosecution should be based on an independent prosecutor deciding whether it is in the public interest to prosecute, not on an agent of the state saying that this crime is not a crime, as many noble Lords have said.

At Second Reading, the Minister—the noble Baroness, Lady Williams—said:

“It is also undesirable to create an express power for public authorities to authorise activity that remains criminal.”—[Official Report, 11/11/20; col. 1115.]


Paying criminals to pass information to the police is undesirable, and paying terrorists to pass information to the security services is undesirable, as is paying those employed by hostile foreign powers to commit treason by passing information to the UK—it is all undesirable, or murky waters, as the noble Lord, Lord Cormack, said on the last group—but, however undesirable those things are, they are necessary. Although it may be undesirable to create an express power for public authorities to authorise activity that remains criminal, it is necessary, and it is not as undesirable as the alternative. To quote the noble Lord, Lord Anderson of Ipswich, for whom I know the whole House, including the noble Baroness the Minister, has the highest regard:

“The Bill would give power to police superintendents to confer immunity on members of the public, and of their own organisations, for the commission of crimes. That proposition is startling, and the potential for abuse obvious.”—[Official Report, 11/11/20; col. 1064.]


I shall now deal with the “unfair and unreasonable” argument. At Second Reading, the noble Baroness the Minister said that

“it seems unfair and unreasonable for the state to ask an individual to engage in difficult and potentially dangerous work while leaving open the possibility of the state prosecuting them for the exact same conduct. That tension has existed for many years.”

It has, but we need a reality check here. What might seem unfair and unreasonable to the Government, and indeed to some noble Lords, is not the same as what might seem unfair and unreasonable to undercover operatives, who, whether they be criminals or undercover cops, have willingly volunteered to do this work not for years or for decades but, I am sure, for well over 100 years.

If a handler thought that it was unfair and unreasonable, he would not authorise a CHIS to participate in crime; if a CHIS thought it was unfair and unreasonable, he would not participate in crime. What the noble Baroness the Minister seems to want to address is a sense of unfairness and unreasonableness which the Government have but which is not shared by the overwhelming majority of those who are directly affected—the handlers and the undercover agents.

The second question that has to be asked is: what is the possibility of the state prosecuting them, and is the status quo a real deterrent? The noble Baroness the Minister—again, at Second Reading—talked about what would happen if a CHIS were to undertake criminal activity that fell outside the strict parameters of a CCA:

“The prosecuting authorities are in a position to consider whether to bring a prosecution. This has been done before and will be done again if required.”—[Official Report, 11/11/20; col. 1115.]


So the answer is, “It has been done before and will be done again if necessary”, but it has not been done so often as to put off either undercover police officers or criminals from participating in criminal activity at the request of their handlers, who have willingly engaged on the understanding that, provided you stick to what you have been authorised to do, the CPS is unlikely to prosecute.

There have, no doubt, been rare occasions when a criminal has asked for a written guarantee of immunity and has backed away when it could not be given, but the system has clearly not been seen by the overwhelming majority of those involved—neither the handlers nor the undercover operatives—as unfair or unreasonable, no matter what we might think, otherwise they simply would not do it. In any event, any guarantee of immunity would be conditional only on the CHIS doing precisely what he is authorised to do, which in itself presents problems, as we will see in future groups.

I argue that the potential unintended consequences of what is proposed in the Bill on the question of immunity, as the noble Lord, Lord Anderson of Ipswich, pointed out, are too high a price to pay just to make us feel better, because we feel it is unfair and unreasonable not to give immunity up front. CHIS engage willingly in criminal activity at the request of their handlers, despite the possibility of prosecution. The proposed solution, to a problem that does not exist, is startling and the potential for abuse obvious, which is why I support the amendments.

[Lord Falconer of Thoroton (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Paddick, who brings experience that none of the rest of us who have spoken in the debate have. It has been a powerful and significant debate. It arises because, under the Bill, a consequence of authorising criminal conduct is that it is rendered “lawful for all purposes”, which creates an immunity both from criminal prosecution and from civil liability for the person carrying out the authorised crime.

As this debate has identified, that gives rise, in effect, to two issues. First, it is a departure from the existing arrangement whereby the effect of the Upper Tribunal’s decision in the third direction case was that the relevant authorities had the power to authorise the criminal conduct, but the power to authorise it did not render it immune from prosecution. In consequence, it was a matter for the relevant prosecutor to determine whether or not the fact that the CHIS was acting in accordance with the authority given to him meant that the CHIS—I apologise to the noble Lord, Lord Cormack —should not be prosecuted.

From the point of view of the Government—and very much of this debate—reasons have to be given why that principle is being departed from. The arguments fluctuate between, “It’s a useful power to have, for the prosecutor to determine”, to, “Actually, it makes no difference”. Can the Minister give an authoritative answer to the question why it is immunity now, rather than depending on prosecutorial discretion? In particular, is it because it makes no difference? Has it made a difference in the past and, if so, why is the principle being departed from?

Noble Lords speaking in this debate have asked penetrating questions. The noble and learned Lord, Lord Thomas of Cwmgiedd, said, in effect, “Tell us why the policy is being changed.” We on this side of the House want to hear answers to those questions before we make up our minds on this issue. The second and separate issue—here, we believe there is definitely a defect in the Bill—is that the consequence of the “lawful for all purposes” approach is that there is plainly no remedy for the victims of the conduct authorised by the criminal conduct authorisation. That is fundamentally wrong.

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[Lord Falconer of Thoroton (Lab)]

I am delighted to follow my noble friend Lady Chakrabarti, who has made a real contribution to the quality of the debate in this Committee and will make a real contribution to the changes necessary to the Bill. I shall speak particularly to Amendment 71, in the name of my noble friends Lord Rosser and Lord Kennedy. As the noble Lord, Lord Anderson of Ipswich, previewed, it seeks to make it clear that there is a jurisdiction in the Investigatory Powers Tribunal to give compensation to people.

This group concerns compensation for innocent victims. It seems to me that innocent victims can take two forms. One is somebody who is completely innocent and, pursuant to a crime authorised by a CHIS, gets beaten up, for example, by the CHIS. What remedy does that person have? Secondly and separately, there is the person who is a target of CHIS activity; for example, somebody who, it is thought, might be about to commit a crime and their premises might be burgled, pursuant to an authorisation under the Bill. What remedy does that person have? Let us assume, particularly, that the whole authorisation was wrongheaded from the start because, as everybody accepts in this process, errors get made. So, there is the innocent victim of crime on one hand and, on the other, the target of CHISery who is the wrong target and a judicial review would be allowed in relation to that.

On the face of the Bill, if it is all lawful, then there is no remedy at all. Will the Minister please explain what remedy there is? The noble Lord, Lord Anderson of Ipswich, made it clear that he thinks activities under Part II of the Regulation of Investigatory Powers Act 2000, which this is amending, already provide a remedy. Indeed, in the Commons in answer to this amendment, the Security Minister replied:

“Let me be clear: there is no barrier under the Bill for affected persons seeking a judicial review of a decision made by a public authority. Similarly, the Investigatory Powers Tribunal already has jurisdiction in relation to conduct to which part 2 of RIPA applies, which will include the amendments made by the Bill. I am, though, listening to concerns expressed by Members about the Bill’s potential impact on routes of redress, and I am happy to consider whether anything further is needed.”—[Official Report, Commons, 15/10/20; col. 613.]


It would be helpful to have, first, a repetition of the assurance that the IPT covers judicial review-type relief—on the basis, presumably, that the original authorisation is unlawful—and therefore the reference to the fact that whatever is done under the authority is lawful does not apply to the original grant of the authority.

Secondly, will the noble and learned Lord deal with the issue of the innocent victim of the crime when there is a lawfully authorised criminal conduct authorisation, and the consequence of that is that somebody is, for example, severely beaten up? What remedy does that totally innocent victim have in such circumstances? The effect of the Bill is to say that the conduct is rendered “lawful for all purposes”. It cannot mean that. It cannot mean that the totally innocent victim, who has other remedies, is deprived of all those remedies because it is authorised under a criminal conduct authorisation: it cannot have intended that.

As the noble Lord, Lord Anderson of Ipswich, said, it may be key that we focus on the public authority which provided the authorisation and do not lose sight of the person giving the authority by focusing on the liability of the CHIS themselves. This point was clearly considered by the Joint Committee on Human Rights in suggesting its amendment to try to deal with this.

People are very concerned about the innocent victims. I strongly invite the noble and learned Lord to deal also with the practical issues referred to by the noble Lord, Lord Anderson of Ipswich. For all the remedies in the world you create, if you can never tell the victim what has happened, how does that person get a remedy? That is an important point.

[Lord Stewart of Dirleton (Con)]

My Lords, Amendments 6 and 8 seek to remove the exemption from civil liability for CHIS criminal conduct. While I understand the intent behind these amendments, which is to allow those impacted by a criminal conduct authorisation to be able to seek civil redress, there are good reasons why the Bill has been drafted in this way.

I explained in response to amendments tabled by the noble Baroness, Lady Chakrabarti, why the Bill has been drafted to render correctly authorised conduct lawful for all purposes. Those reasons apply equally to criminal and civil liability. An authorisation will have been granted because it was deemed necessary and proportionate to tackle crime, terrorism or hostile state activity. Where that authorisation has been validly and lawfully granted, it is right that criminals or terrorists cannot then sue the undercover operative—the CHIS—or the state for that same activity.

I appreciate that the spirit of these amendments is to ensure that any innocent persons impacted by an authorisation can seek redress where appropriate. I reassure noble Lords that all authorisations are, in the first place, very tightly bound and, as part of the necessity and proportionality test, the authorising officer will consider any other risks of the deployment. An authorisation must consider and minimise the risk of impacting those who are not the intended subject of the operation.

The Bill does not create an exemption for all and any civil liability. For example, the conduct that is the subject of the Undercover Policing Inquiry would not be exempt from civil liability under the Bill’s regime.

I also seek to offer reassurance that routes of redress will be available to those who have been impacted by a criminal conduct authorisation where that authorisation has been unlawfully granted, following the observations from the noble and learned Lord, Lord Falconer, on the situation where the wrong stems from the authorisation granted being improper or too broad. The Bill does not prevent affected persons from seeking a judicial review of a public authority’s decision to authorise criminal conduct. If a judge concluded that the decision had not been lawfully made, the affected person could seek a remedy through the courts. The noble and learned Lord referred to the statement made in the other place on this. Equally, as with other investigatory powers, any affected person or organisation can make a complaint to the Investigatory Powers Tribunal which will then be independently considered by the tribunal.

A further important safeguard is the obligation on the Investigatory Powers Commissioner to inform a person of a serious error that relates to them, where it is in the public interest. This includes situations where the commissioner considers that the error has caused significant prejudice or harm to the person concerned. The commissioner must also inform the person of any rights they have to apply to the Investigatory Powers Tribunal. That is an example of the commissioner actively seeking out persons who have been wronged as part of their remit to consider all documentation, facts and circumstances surrounding the granting of a CCA.

Amendment 71, tabled by the noble Lord, Lord Rosser, is unnecessary. Any person or organisation can already make a complaint to the Investigatory Powers Tribunal with regard to conduct under Part II of RIPA; that complaint will be considered independently by the tribunal. The IPT operates one of the most open and transparent systems in the world for investigating allegations that agencies have breached human rights. It hears cases in open where possible and publishes detailed reports on its work and rulings. This will remain unchanged under the Bill.

These criminal conduct authorisations are very tightly bound so that they meet the necessity and proportionality test. A number of routes of redress will be available to persons wronged to challenge the validity or lawfulness of the authorisation and then seek the appropriate remedy, whether through judicial review or a complaint to the independent tribunal.

The matter of applications to the Criminal Injuries Compensation Authority was raised by the noble Lord, Lord Anderson, and others. I regret to advise the House that I do not have information specific to the CICA in front of me, but I will write to him and others who have expressed an interest on that point.

On a point raised by the noble and learned Lord, Lord Falconer, it is important to bear in mind that RIPA already excludes civil liability for authorised CHIS conduct, so what is introduced in the Bill is not new.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

I have received a request to speak after the Minister from the noble and learned Lord, Lord Falconer of Thoroton.

[Lord Falconer of Thoroton (Lab)]

It is new, because CHIS conduct under the existing Bill significantly did not include criminal conduct. There was a little bit that was included, but this is a wholly different regime and I do not think it is right to say there is no change there. However, I did not rise to say that; I wanted to raise the point about being lawful for all purposes. If it is lawful for all purposes, tortious claims cannot be brought by the totally innocent victim—the person beaten up pursuant to the authority, assuming the person beaten up is not the subject of the CHIS but is just somebody caught up in it. Putting aside the Criminal Injuries Compensation Authority, which the noble and learned Lord will come back to us on, why should that person—singularly, throughout the whole of English civil law—not have a remedy? Is he saying that person does not have a remedy? If he is saying that they do, what is that remedy? Everyone else beaten up in the course of a crime has a tortious remedy.

[Lord Stewart of Dirleton (Con)]

The remedy lies in the approach to the tribunal and the obligation on the commissioner to notify a person who is wronged of their right.

[Lord Falconer of Thoroton (Lab)]

Can the Minister confirm that the totally innocent victim can go to the Investigatory Powers Tribunal and make a claim for damages for assault and battery?

[Lord Stewart of Dirleton (Con)]

I am happy to confirm that.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Falconer of Thoroton Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Thursday 19th November 2020 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

1C: Leave out subsection (3D).

[Lord Falconer of Thoroton (Lab)]

My Lords, I move my Amendment 1C as an amendment to Amendment 1A. It would leave out subsection (3D) of the Government’s proposed amendment. Leaving out the subsection would mean that the power to extend the sunset period could be exercised only once.

I start by welcoming the noble and learned Lord, Lord Stewart of Dirleton. Throughout the process of this Bill, he has been very engaged, incredibly helpful, very courteous and really engaged in the detail, and we are all incredibly grateful for that. I also compliment him on the presentation he has just made, which was persuasive and clear and addressed all the issues. So I really am glad to see him there and I completely support him—as indeed does the whole House—in relation to the bringing into UK domestic law and ratifying the three treaties referred to, and which remain referred to, in Clause 1 of the Bill.

I remain disappointed and believe it to be very much the wrong policy to give the Government the power to introduce private international law treaties by secondary legislation, as in the amendment introduced by the Commons to the Bill that was sent from the Lords. There was an almost universal view in this House when it was last here that that should not be dealt with by secondary legislation, because it would reduce the quality of private international law agreements that were given the force of law by legislation. The question of whether it was legitimate to do it by secondary legislation was considered after the consideration of evidence, both by the Constitution Committee of this House—and I am glad to see the noble Lord, Lord Pannick, here as a distinguished member of the Constitution Committee—and the Delegated Powers Committee of this House as well. Both considered, in detail, evidence put before by them by the Ministry of Justice and rejected the suggestion that secondary legislation was the appropriate way to deal with such treaties.

I did not find the reasons given by the noble and learned Lord convincing. But he, like his distinguished predecessor, the noble and learned Lord, Lord Keen of Elie, did not really engage on the issue of why to use secondary rather than primary legislation. He asserted that secondary legislation had been used in the past, and, like his predecessor, referred to the 1933 and 1920 Acts. What he was referring to was bringing into force the provisions on enforcement of judgments in those two Acts in relation to individual territories or countries. All that happens by that secondary legislation is that additional countries are added, whether they be Commonwealth countries for the 1920 Act, or non-Commonwealth countries for the 1933 Act. I would not have any objections whatever to something like that. But that is not the power taken in this Bill; it is the whole of the private international law agreement. It would not just be the addition of countries; it would be the whole Foreign Judgments (Reciprocal Enforcement) Act 1933 in the examples that have been given. That will lead to this country having a worse network of private international law agreements than it has had previously. That is bad for this country, because one of the things we are incredibly good at is private international law. That is what makes English law so attractive to commercial institutions. I am disappointed that no real additional arguments have been advanced.

I accept the political reality here; this House has almost universally asked the other place to think again, and the noble and learned Lord, Lord Stewart of Dirleton, is right to point out that it had the opportunity to think again and decided to go ahead. We have to accept that in a case such as this.

In relation to the sunset clause, these agreements take a long time to negotiate and introduce—with the possible exception of us adhering to Lugano, because that may have to be done in a hurry, so I can see that there is a case there. I am interested that the noble and learned Lord, Lord Stewart of Dirleton, has said that if one had Hague-Visby or Warsaw, that would not be covered by this Bill and would, therefore, have to be introduced by primary legislation. I am not sure, then, under what circumstances this is ever going to apply in substance, because the nature of these private international agreements is that they will have provisions about jurisdiction and enforcement as well as about substantive law—Hague-Visby and the Warsaw convention.

--- Later in debate ---

The amendments seek to address the particular concerns around appropriate scrutiny, while protecting the Government’s core policy objective. We could send this Bill back to the Commons, only to have it come back to us once more to make final tweaks to these amendments, but I urge your Lordships to see the bigger picture. This package of amendments is balanced and proportionate. We must consider not just the constitutional issues but the impact these agreements have on families and businesses. We need to pass this Bill, and time is moving on. This is an opportunity for us to send the Bill back to the other place with a clear signal that this House has balanced pragmatism with principle and found an effective compromise that it should support. I beg to move.

[Lord Falconer of Thoroton (Lab)]

May I express the gratitude of the whole House for the care with which the noble and learned Lord, Lord Stewart of Dirleton, dealt with every single issue that was raised? That I disagree with some of the answers is not the same as saying that he did not deal with them. For a Bill like this, it was an absolute model of going through every issue and putting the Government’s argument; I am incredibly grateful for that. There is nobody more disdainful than me when questions are not answered but, my goodness, the noble and learned Lord did a very good job and the whole House is grateful for that.

I will focus on my amendment, which concerns not being able to extend and extend the provision. My reading of what the noble and learned Lord said is that the sunset clause was intended in part to deal with the objections raised by this House. As he knows, the reason for those objections is that we do not consider secondary legislation appropriate. He replied, in effect, that there are good reasons for it—Lugano, primarily. As I read it, he is saying that unless there are good reasons, the sun will set on this Bill. If that is the right approach and what he is indeed saying, my view is that the Lugano provisions that currently apply—we may be only four or five weeks away from wanting them to come into force—mean that it is very unlikely that future circumstances will arise that would justify using secondary legislation. I hope that is what he means.

The noble and learned Lord has acknowledged the reasons why this House did not want the secondary power. In those circumstances, mindful of the need to get the three conventions in Clause 1 on to the statute book 1, I will not be moving my amendment—but only on the basis that I earnestly expect that the Government will not need one, let alone two extensions to the sunset clause. I beg leave to withdraw the amendment standing in my name.

Amendment 1C withdrawn.