Safety of Rwanda (Asylum and Immigration) Bill

Lord German Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

[The Lord Bishop of St Edmundsbury and Ipswich]

My Lords, I shall speak in favour of Amendments 1, 3 and 5 tabled by the noble Baroness, Lady Chakrabarti, to which I have added my name. I do not believe that we can enshrine in law a statement of fact without seeing and understanding the evidence that shows such a statement to be true, in particular when such a statement of fact is so contentious and for which the evidence may change. Ignoring for a second the strange absurdity of such declarations, we must also consider the real impact that this could have on the potentially vulnerable people whom the Government intend to send to Rwanda. As my most reverend friend the Archbishop of Canterbury, who is in his place, said at Second Reading,

“in almost every tradition of global faith and humanism around the world, the dignity of the individual is at the heart of what is believed”.—[Official Report, 29/1/24, col. 1014.]

Sending those who seek refuge in the UK to a country of questionable safety does not respect this dignity, so I support amendments that require further evidence of the safety of Rwanda before anyone is sent there.

[Lord German (LD)]

My Lords, we support all the amendments in this group. It is absolutely critical that domestic and international law is complied with. This should not be up for debate. It is who we are. It is what we stand for. If we seek to deviate from our domestic and international legal obligations, our role on the world stage and our ability to have influence globally is significantly diminished. We cannot shy away from the consequential impact this will have on other countries choosing to follow suit. As the United Nations Human Rights Council put it last Friday,

“international standards on the independence of the judiciary are closely linked to the rule of law and the separation of powers. ‘Provisions of the Rwanda Bill could undermine the principles of the separation of powers and the rule of law in the United Kingdom’”.

That is sufficient for us to support all these amendments.

[Lord Howard of Lympne (Con)]

My Lords, I begin by associating myself with the remarks of my noble friend Lord Hailsham about the late Lord Cormack. I cannot add anything to what my noble friend said, but it is entirely true that Lord Cormack is a great loss and we shall all miss him tremendously.

I am grateful to the noble Baroness, Lady Chakrabarti, and my noble friend for their references to my earlier intervention in these debates. I am not sure that the further interpretation that they place on my intervention is entirely justified or that I would entirely go along with it, but that is perhaps a matter for debate at a later stage.

The amendments in this group are all based on respect for the rule of law. A critical part of respect for the rule of law is the separation of powers, something much referred to in our earlier debates, and it is to that subject that I propose to address these remarks. As Anthony Speaight KC reminds us in his recent Politeia pamphlet, there is no such thing as the absolute separation of legislature, executive and judicial powers in our constitutional arrangements. Our Executive are rooted in our legislature and in any event, as Mr Speaight and others have pointed out, there are precedents for this legislation—for the proposition that Parliament can deem certain countries to be safe—including the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, passed under the Blair Government. The principle in that legislation was challenged in the case of Nasseri but was upheld by the Court of Appeal and the House of Lords. That, of course, is essentially what this Bill does: it deems Rwanda to be a safe country.

However, there is an even broader principle that is relevant here and is at the root of why this legislation is necessary. We have traditionally recognised the separation of powers between the Executive and the judiciary. That principle can be expressed in the proposition that decision-making is the responsibility of the Executive, but that the courts have the responsibility to review the lawfulness of those decisions.

That responsibility of the courts is what we know as judicial review. Its scope has been expanded greatly in recent years in ways which have not found universal approval but its principle is accepted as an important part of our constitutional arrangements. However, judicial review does not involve the courts substituting their own decisions for those of the Executive. It involves, in essence, an assessment of whether it was reasonable for the Executive to make the decision in question.

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[Lord German (LD)]

My Lords, I start by saying to the noble Lord, Lord Deben, that I have come to the same conclusion about these amendments, but perhaps from a different perspective. As noble Lords know, these Benches voted against the Bill in principle, but that does not mean to say, having not won that argument, that we will not support changes to the Bill in ways that mitigate the problems that we still see with it.

It is worth reminding the House of the decision that we took on the treaty—that we would not recommend the treaty being signed until certain conditions were in place. As noble Lords know, from the Standing Orders of this House, that that was a resolution of this House and is the view of this House. These amendments are simply seeking to amplify and recognise the decision of this House that is in place at present. If it is not in place, we are going to be asked to do that fictionalising thing, which is to change our minds from what we said before—that we need to see those conditions in place before we can see Rwanda as safe—simply because the Bill is before us.

This group of amendments recognises that we need to have those conditions in place before the consideration that this House has already given can be reversed. I must say to the noble Baroness, Lady Meyer, that “safe” in respect of a country is not about the beauty of the country or the nature of its people; it is about the structures and the systems that it has in place to meet its obligations, including the obligations for refugees that we have laid out.

Given that the courts have given a decision of fact on the safety of Rwanda, it is deeply problematic that the Government want this Parliament to overturn its own decision and declare the opposite. We think that they would be better off going back to the courts to review the evidence and coming to a finding of fact, if they believe that the situation has changed. As the United Nations council responsible for public affairs said in its announcement last Friday, this Bill will

“unduly limit judicial independence by requiring judges to treat Rwanda as a safe third country now and in the future, regardless of any evidence to the contrary before them”.

It is clear that the terms of the treaty have not been met; that is what this House says, and that is the resolution of this House. They need to be met before the requirements of the treaty are satisfied. The mechanism by which the Government are asking Parliament to declare Rwanda safe is the treaty. The Minister confirmed in Committee that the safeguards outlined in the resolution of this House were not yet in place but were being worked towards. In Hansard for day one in Committee, 12 February, my noble friend Lord Purvis asked whether we could pursue the issue that the Minister had mentioned. He said:

“If the Rwandan Government are ‘working towards’ putting safeguards in place, that means they are not currently in place. Is that correct?”—[Official Report, 12/2/24; cols. 64-65.]


Hansard says that the noble and learned Lord, Lord Stewart of Dirleton, replied, “It must do”.

This afternoon, letters have been delivered to Members who took part in these debates. I apologise for having to look on my phone, because these letters which relate to Committee of this House on the Bill were delivered by electronic mechanisms only after we had started discussing Report. That is not the way this House should be treated. If we want the evidence on which we can make decisions, we should have it in time to be able to make further progress. Anyway, I have to turn my phone sideways because it is very small writing, but I will do my very best. It says in a paragraph about whether these matters are in sight:

“The UK and Rwandan Governments will continue to work closely together to implement all the measures under the treaty and prepare to operationalise the partnership”.


So quite clearly, the facts required by this House are not there at present. I like to cite the analogy from the noble Lord, Lord Purvis. It is like saying, “Ladies and gentlemen, we are going by plane and we are working towards making the plane safe”. If you think about it, that is where we are at the moment. Would you get into that plane? Probably not. You would be foolish to do so—but, if you did get into it, you would have no guarantee that it would be capable of flying and not dropping out of the air.

So these amendments are clear that we must put the conditions in place. They have already been agreed by this House. We have made it clear that the conditions we as a House place on the treaty are to be adhered to, and that the conditions and procedures must be adopted to satisfy the House both before and after deportations can take place. They are sensible. They are what the House requires in order to fulfil the requirements of the decision we took on the matters of the treaty. I support.

[Lord Lilley (Con)]

My Lords, I do urge noble Lords to use some common sense. It is inconceivable, if this Bill is enacted, for the first few months—regardless of whether all the conditions of the treaty have been implemented—that Rwanda, under the full spotlight and glare of international publicity and the attention of the press, will not implement carefully and considerately or that it will refoule anyone that we send it.

The reason for having all the things in the treaty is for the period after the initial spotlight has been turned off and attention has waned. Then, it is important to have all those considerations in place; it is not initially. No one could really imagine that we will send someone out and within a few weeks they will be sent by Rwanda to some unsafe country. It will not happen. We know it will not.

But it is very important that we get this happening soon, and that we not only use common sense but are merciful, because the longer we delay, the more people will come across the Channel and the more people will die.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I wanted to make a couple of brief points in support of Amendments 20 and 21. In Committee, the Minister, the noble and learned Lord, Lord Stewart, quoted at length the Lord Chancellor’s submission to the Joint Committee on Human Rights to justify breaching the universality of human rights. Clearly, the Lord Chancellor did not convince the Joint Committee on Human Rights, which in its majority report concluded that the provision

“threatens the fundamental principle that human rights are universal and should be protected for everyone”.

I still do not understand, given the concerns expressed by the JCHR, as well as the EHRC, the Law Society and the Northern Ireland Human Rights Commission, why this Government continue to try to argue that disapplication does not affect the principle of universality, which the noble and learned Lord waxed lyrical about in his speech.

Secondly, the noble and learned Lord promised to write to me in response to my concerns about the implications for the Windsor Framework and the Good Friday agreement—following on from the comments of the noble Baroness, Lady Hoey—and the Joint Committee on Human Rights’ request for a full explanation before Report as to why the Government consider Clause 3 to be consistent with these agreements. I thank the noble and learned Lord for his letter but, to echo what the noble Lord, Lord German, said earlier, I gently point out that it was sent at 3.24 pm this afternoon, after Report began. That really is not good practice, and it does not meet the JCHR’s request that a full explanation should be published before Report. It seems that the actual full publication will not be until some time on Wednesday, when we will be finishing Report.

I am not convinced that the answers to my questions would satisfy the JCHR, the Northern Ireland Human Rights Commission or the Human Rights Consortium of Northern Ireland. I am also not clear why the letter was not copied to the noble Baroness, Lady O’Loan, given that she originally challenged the Minister on this point at Second Reading. I am not going to pursue the matter here, except to point out that I do not think we yet have a satisfactory explanation of the interactions with and the implications for these agreements.

[Lord German (LD)]

My Lords, I will speak to Amendment 21 in my name and also link that with Amendments 20 and 18. If Amendment 20 had had any space, I would have signed it as well, because it makes the same case. I will address Amendment 17 later and look forward very much to seeing how the Government deal with it in their response.

At the moment I will just repeat the universality issue of human rights—they are for all. I read once again the response from the noble and learned Lord, Lord Stewart of Dirleton, about legitimacy and I am sure we will hear it again today. But the underpinning of the Human Rights Act is that the protections should not be disapplied just to some people. Human rights are for all; if they become qualified, they are no longer human rights but only rights for some people. This violates the principle of the universality of human rights, which is why this amendment is in place.

It does not matter that this is directed at illegal migrants: once the Government do this for one group, they will choose—or could choose—to use it for other groups such as protesters.

[Lord Murray of Blidworth (Con)]

Is the logic of the noble Lord’s point therefore that the Government would be better to repeal the Human Rights Act completely and revert to the pre-1998 situation?

[Lord German (LD)]

No, we simply keep the Human Rights Act, which does the job we are seeking here. Naturally, of course, if the Government want to move and create a special group, as here—what they call “illegal migrants”—what about the other groups that might follow from it? It is very clear that there may well be an issue with protesters—groups that are not in vogue with the Government. It is a very dangerous precedent and this is a warning sign. Fundamentally, what we are seeing here is a chasing of short-term headlines that will have a significant consequence for people’s rights in this country.

Not content with arguments that they are having with the views of the ECHR and the UNHCR, the Government in the last seven days have now drawn swords with the United Nations Human Rights Council. Published last Friday, the council’s report said:

“Prohibiting courts and tribunals in the UK from applying and interpreting principles of domestic human rights law and international law would undermine the ability of the courts to protect all those under UK jurisdiction from violations of their human rights as provided under international law”.


It goes on to say that the Government should look at this matter again and the United Nations has offered to work with the UK Government on this matter. So, when he responds, will the noble Lord tell us whether the Government have read the United Nations Human Rights Council’s review and whether they are prepared to meet the council and discuss this matter further?

There is also a logical inconsistency in what the Government are doing; they cannot have it both ways. They want to rely on the international convention and jurisprudence in justifying the disapplication of the Human Rights Act, but they are then seeking to disapply the findings of that same court in relation to the same international convention with respect to the consideration of interim orders. You cannot have it both ways and the Government need to be clear on that matter.

All the comments that the noble Baroness, Lady Chakrabarti, made about Amendment 17 are absolutely accurate, but one thing worries me completely and that is the part of the amendment that basically takes away every law that this country might apply in this direction—domestic law and common law. For goodness’ sake, with common law as interpreted by the courts, I do not know how you find which parts of it you want to disapply. You have to be specific in what you say if you want to disapply anything of this nature. Amendment 17 looks to me like a complete wiping out, blanking out and blindfolding of every single possible piece of legislation that might stand in the way of this Government’s view, and that absolutely must affect the balance of the rule of law in this country.

I look forward to seeing how the Government will deal with that amendment, but I suggest they might need to consider how they move forward with no further disapplication of the Human Rights Act.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak quite briefly. The amendments in this group again demonstrate the threat to the domestic rule of law posed by this Bill. This is not the first Bill that threatens the Human Rights Act in this way, but the fact that it now seems almost commonplace for the Government to strip back human rights legislation does not mean it should go without objection each and every time.

There is much to object to in this Bill and Clause 4 is no exception. Each cut to the Human Rights Act matters and each piece of domestic law cut away in search of a quick political gain matters as well. I hope the Government listen to the arguments put forward by my noble friends and see sense.

I have to say I found this relatively brief debate quite refreshing. The noble Lord, Lord Frost, was perfectly candid with the House, and for a layman it was much easier to understand the political differences between the view articulated by the noble Lord and the view on the other side of the House. It was much easier to understand that difference than when I try to decipher the words of the Ministers when they respond to these amendments. Nevertheless, I look forward to what the Minister has to say.

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[Lord German (LD)]

My Lords, this group, similar to the third group, demonstrates the risk to individuals where their safety, due to their individual circumstances, cannot be properly considered under the Bill before they are sent to Rwanda. We have had a focus on LGBT, on modern slavery and on Afghans and other people who have served this country.

My noble friend Lady Hamwee raised the issue of modern slavery. Undoubtedly, this is an area where there is a lacuna in the Bill, because these people are victims. My noble friend asked the Government to do a complete analysis of the way in which they deal with this group of people in order to understand what sort of facilities they are going to need and, more importantly, to make the assessment here, and to understand that these people are victims who are suffering; their case should be heard so that we can judge that victim base.

On the other hand, we have talked about the Armed Forces, families and the carve-out for Afghans. It is not correct to assume that those at risk due to their association with UK forces have all been brought to the UK through safe routes. It is clear from the contributions that we have just heard that many of them remain. They have no alternative but to go into hiding or, if they see their life threatened, to take dangerous routes to reach safety in the UK, the country that they believed would protect them for all that they had put their lives at risk for.

I have two points to make to supplement that. The evidence from the UNHCR to the Supreme Court detailed that citizens from Afghanistan had a 0% success rate for claims processed in Rwanda between 2020 and 2022. During that same period, 74% of Afghans who came to the UK had had their claims processed successfully in that time period. I ask the Government: to what extent will the risk to Afghans, due to their association with allied forces in Afghanistan, be both understood and considered in Rwanda?

This question raises the issue of discharging our responsibility towards these people who were placed at risk because of their association with the UK but were then not given protection by the UK and were instead sent elsewhere for another country to deal with—a country that has a 0% success rate in giving people asylum in that country. These are people who put their lives and those of their families at risk in support of the UK’s enterprise and our forces in that country.

This group of amendments needs to be examined further. It needs a much more sympathetic approach from the Government because we are talking about victims and people who have given service to this country. Those people need to have special treatment, rather than us simply looking at the legislation and passing them through. I ask noble Lords to imagine if someone from Afghanistan who got to this country, who would have qualified if they had had the chance but their qualification was misrepresented for whatever reason, was then sent to a country where there was a 0% chance of their being recognised as a refugee.

This group of amendments has demonstrated that there is a risk that the Government have to pay attention to, in trying to make sure that they fulfil the requirements that I think are both humane and important.

[Lord Coaker (Lab)]

My Lords, as we come to the end of today’s consideration of the Bill before us, I start with the important point that the noble Lord, Lord Kerr, mentioned. I raised it in debate on the first group of amendments, when I said that the constitutional position is that the Government have the right to get their Bill through, but the House of Lords also has a constitutional position, which is the right for it to expect that its views and the amendments that it passes are considered properly by the Government. Unless I got it wrong, the noble Lord, Lord Kerr, was saying—it is certainly what I think—that our belief is that the Government are simply saying, “We’re not going to change the Bill at all. We don’t mind what the amendments are or what inconsistencies are brought forward, or how illogical what we are saying is. Such is our determination that we are going to drive this through and use our electoral majority to do it”. To that extent, the Government are undermining the constitutional conventions on which our Parliament is based.

I have been lectured, as many of us on this side of and across the House have been, on the Government’s right to get their Bill through. Indeed, the Home Secretary was at it again this morning in a newspaper, warning of the consequences of us not allowing the Bill through. Why would the Government simply ignore what the House of Lords is saying, which appears to be the intention? It may not be the intention of the noble and learned Lord, Lord Stewart, or the noble Lord, Lord Sharpe, but it will be interesting to see what amendments, if any, the Government make in response to what has happened in your Lordships’ House in Committee and, more importantly, in the votes that have taken place today.

I would appreciate us having some understanding of the Government’s view of what is being done here. As the noble Lord, Lord Kerr, mentioned, and as I am sure many other noble Lords feel, we have a right to be heard—and, at times, for our amendments to be acted upon—rather than simply ignored and dismissed as people who do not understand the problem and are simply trying to get in the way of dealing with the boats.

I started with that important point, notwithstanding the fact that some really important points reflecting on the Bill have been made on this group of amendments, as with many other groups. This group of amendments deals with individual claims and exemptions that may be made with respect to the general principle of the law. As somebody who has great respect for the law, although not a lawyer myself, it has always been my understanding that not many good laws do not have exemptions within them. A good law may have a generality of application to the population—the noble and learned Lord, Lord Stewart, will know this better than me, in his current position—but it will have exemptions within it because the impact of a general law on an individual may be such that justice is not served. Because of that, law therefore has to have exemptions built into it. As it stands, the Government are simply not able to have any exemptions within this. There is a blanket application of the law to particular individuals, whatever their circumstances.

We heard three very passionate and moving speakers leading on these amendments. The noble and learned Lord, Lord Etherton, supported by my noble friend Lord Cashman, outlined the circumstances that may occur with a particular social group. My noble friend mentioned the LGBT community, and the noble and learned Lord, Lord Etherton, will also appreciate that. Does that need to be considered within the Bill? We will have to see, but it appears to be another thing that the Government will just dismiss.

We heard from the noble and learned Baroness, Lady Butler-Sloss, about her amendments with respect to victims of modern slavery and trafficking. People who are trafficked have no choice. They do not say “Yes, traffic me”. That is different; that is smuggling. We are talking about people who are trafficked and have no part in the decision. The Government’s Bill just does not care about that. Those people will be subject to automatic deportation or going to Rwanda. As the noble and learned Baroness, Lady Butler-Sloss, said, quite rightly, surely that could be considered for exemption under the terms of the Bill.

My noble friend Lord Browne’s amendment, supported by the noble and gallant Lord, Lord Stirrup, and others, pointed out that a consequence of the Bill as it stands will be that people who served this country and put their lives on the line for us will simply be treated as illegal and deported to Rwanda. Does the Minister think that is right? Does he actually agree with that? It would be interesting to know whether he thinks that somebody, as my noble friend Lord Browne pointed out, who has fought for this country, served this country and put their life on the line, and who has had to come because of the situation in Afghanistan that my noble friend outlined, should be deported. Who in this House thinks that they should be deported to Rwanda? I do not believe the Government Front Bench think that. It is a rhetorical question; I will save the Minister from answering it. If they do not think that, then they should sort it out.

We are not playing at this; these are things that affect real people’s lives. The point the noble and gallant Lord, Lord Stirrup, made, is really important. What credibility will this country have if it finds itself in a similar situation in the future and says, “Work with us because we will ensure that you are protected”? What possible credibility would we have as a country or as part of an alliance? If we said to people, “If you serve with this country, do not worry about the consequences of it, because you will be protected”, what will we be able to say to them when, as the noble and gallant Lord pointed out, they simply turn around and say, “That is not what happened with those who served in Afghanistan”? Many of them were forced to stay and the consequences of that for some of them have been very severe.

The Government need to act on my noble friend Lord Browne’s amendment. We do not need warm words such as, “Yes, we need to consider this and think about it. It is a very important, interesting point that has been made”. The Government make the law. With respect to this, they should change the Bill to make sure that those people are protected and they should change the Bill in the way the noble and learned Baroness, Lady Butler-Sloss, has outlined, with respect to victims of modern slavery and trafficking. As my noble friend Lord Cashman and the noble and learned Lord, Lord Etherton, said, the Bill needs changing with respect to LGBT people—although I note my noble friend’s Amendment 33, which we will consider on Wednesday, may be a way of doing that. We will leave that for Wednesday.

This is a very important group of amendments dealing with individual claims and exemptions. This is not only about the law; it is about the way that justice works in this country. Justice demands these changes and I hope the Government respond.