Asylum: UK-Rwanda Agreement

Lord Goldsmith Excerpts

Monday 22nd January 2024 Lords Chamber

Moved by

[Lord Goldsmith]

That this House takes note of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda for the Provision of an Asylum Partnership Agreement to Strengthen Shared International Commitments on the Protection of Refugees and Migrants.

Relevant document: 4th Report from the International Agreements Committee (special attention drawn to the agreement)

[Lord Goldsmith (Lab)]

My Lords, there are two Motions in my name on the Order Paper, and I shall speak to both. The first ask the House to take note of the fourth report of the International Agreements Committee, which I have the honour to chair. The report addresses the UK-Rwanda asylum partnership agreement, known as the Rwanda treaty. The second Motion invites the House to agree with the committee’s unanimous conclusion that the Government should not ratify the treaty

“until the protections it provides have been fully implemented, since Parliament is being asked to make a judgement, based on the Agreement, about whether Rwanda is safe”.

Both Motions are tabled on behalf of the committee and not on behalf of the Labour Party.

The second Motion engages Section 20 of the Constitutional Reform and Governance Act 2010. I will explain the significance of this and comment briefly on the statutory framework under which the committee’s report was produced before turning to the substance of the issue. The mandate of the International Agreements Committee is to scrutinise treaties laid before Parliament which the Government propose to ratify. Section 20 of the Constitutional Reform and Governance Act, or CRaG, gives Parliament 21 sitting days to review a treaty. The main essentials of the process for parliamentary scrutiny of treaties have not changed for 100 years, since 1924, when Foreign Office Minister Sir Arthur Ponsonby made a commitment that the Government would lay all treaties before Parliament for 21 days before ratification. CRaG codified this practice in legislation but did not substantially alter it.

The International Agreements Committee has previously reported on a range of deficiencies in the CRaG scrutiny process. This is not the occasion to debate those in detail, but the committee’s current report does highlight that consideration of the Rwanda treaty brings into sharp focus the inadequacy of a 21-day scrutiny period for reviewing treaties of significant public interest and political importance. Our task in this case was made more difficult by government delays in publishing key information and providing responses to our inquiries.

Our consideration of the Rwanda treaty also highlights the limits on Parliament’s role in the scrutiny of treaties, which is weaker than in many other countries. If either or both Houses wish to express concerns about a treaty, Section 20 of CRaG provides that they must pass a resolution before the end of the 21-day period that the treaty should not be ratified. If the House of Commons passes a Section 20 Motion, the Government must lay a Statement and wait a further 21 days before they can proceed. That process can be repeated, which means that, in theory, ratification could be indefinitely delayed, so long as the Commons continues its objections. The Government, however, can override a Section 20 Motion passed by this House.

This is the first occasion since CRaG came into force in 2010 that either House has considered a Motion under Section 20 of CRaG, which perhaps illustrates the inadequacies of the current framework for treaty scrutiny in general and the specific concerns that the committee has about the way the Government have proceeded in relation to the Rwanda treaty—I will expand on this as I address the substance of the report.

The treaty was negotiated between the UK Government and the Government of Rwanda as a response to the judgment of the Supreme Court on 15 November 2023 that the Government’s policy of sending asylum seekers to Rwanda was unlawful. The Supreme Court found, relying heavily on evidence from the United Nations High Commissioner for Refugees, that there were deficiencies in Rwanda’s asylum system and evidence of refugees being sent on to unsafe countries—a practice known as refoulement—in breach of Rwanda’s international obligations. The Supreme Court did not doubt the good faith of the Government of Rwanda but found that the practical application of asylum and refugee law was inadequate. On this basis, the Supreme Court concluded that there was a risk of refoulement in relation to any asylum seeker sent by the UK to Rwanda.

The Rwanda treaty sits alongside the Safety of Rwanda (Asylum and Immigration) Bill, which will have its Second Reading in this House on 29 January. This debate is not about the Bill, but aspects of the Bill are relevant to our consideration of the treaty. In particular, Clause 2 of the Bill provides that:

“Every decision-maker must conclusively treat the Republic of Rwanda as a safe country”.


Clause 2 is an ouster clause and has the effect that the Bill’s declaration of the safety of Rwanda could not be subject to appeal or judicial review in any legal proceedings.

The Government’s case is that the new arrangements they have negotiated with Rwanda, which are now set out in a legally binding treaty that replaces the previous memorandum of understanding, change the factual position considered by the Supreme Court and thus allow Parliament to conclude definitively that Rwanda is safe. The Home Secretary’s foreword to the policy statement accompanying the Bill and the treaty published on 12 December referred to the treaties as containing,

“significant new protections in response to the Supreme Court’s conclusions”.

And went on to say:

“This work will enable Parliament to conclude that the Supreme Court’s judgment has been addressed and that Rwanda is safe for relocations under the Migration and Economic Development Partnership”.


The committee therefore considered that its job was to consider whether the protections in the treaty do indeed enable Parliament to conclude now that the Supreme Court judgment has been addressed and that Rwanda is, in fact, safe. The committee agreed that, on paper, the enhancement provided by the treaty undoubtedly improves the arrangements under the memorandum of understanding. First, the treaty includes an explicit obligation that no person sent to Rwanda will be removed to any other country, except back to the United Kingdom at its request. Secondly, a new system to process asylum claims will be established, with safeguards to ensure compliance with refugee law, including new institutional structures with international judges. Thirdly, the role of the independent monitoring committee is enhanced, with additional staff to support its functions. Fourthly, a binding mechanism to settle disputes between the parties is established. These are all important changes, and the committee acknowledges the efforts of both Governments to address the issues raised by the Supreme Court.

However, it is plain from the Government’s evidence to our inquiry, and from the background information in the Home Office policy statement, that much work needs to be done before the protections that the treaty envisages could be fully in effect. This includes not just the adoption of new laws, systems and processes but the recruitment and training of personnel.

All these legal and practical steps are set out in our report, but I will highlight just a few of the most important ones. The Home Office told our inquiry that it is still discussing with the Government of Rwanda key aspects of the new asylum processing system. The new Rwandan asylum law, which will underpin this important part of the treaty, will be adopted in the “coming months”, according to the Home Office policy statement. Additionally, the Home Office told us that the process for selecting the co-presidents of the appeal body is still being discussed between the UK and Rwanda. Only after that process has been agreed can the co-presidents be appointed. They, in turn, will need to identify and select the other international and Rwandan judges. The Home Office was unable to tell us how many international judges there would be in total, or how they would be allocated to individual appeals. It is clear that significantly more work is needed on this important aspect of the treaty.

The obligation not to remove asylum seekers to any other country, except if requested by the UK, is central to the Government’s contention that the treaty meets the concerns of the Supreme Court. The treaty provides an added assurance—although it could also be taken as a lack of confidence in compliance by Rwanda—in stating that the parties will co-operate to “agree an effective system” to ensure that refoulement does not take place. We asked the Home Office for further information about this but did not receive a clear answer on when this system would be in place or whether the measures would be published.

The Government also place heavy emphasis on enhanced monitoring arrangements, but, from information we received from the Home Office, it appears that the monitoring committee has yet to recruit its support team. This is important because the noble Lord, Lord Anderson of Ipswich, whom I see in his place, told us, based on his experience of reviewing similar monitoring processes in his previous role as Independent Reviewer of Terrorism Legislation, how resource-intensive effective monitoring is and how important it is to have people on the ground.

Another important new aspect of the monitoring arrangements provided for by the treaty is a process to allow asylum seekers or their representatives to submit confidential complaints, but this system has not yet been set up by the monitoring committee. It is also unclear whether the arrangements are to be subject to public scrutiny. In total, our report identifies at least 10 sets of issues in respect of which, on the basis of the Government’s evidence, significant additional legal and practical steps are needed in order to implement the protections the treaty is designed to provide.

The UNHCR published its assessment of the treaty last week. It also acknowledged that:

“Detailed, legally binding commitments set out in the treaty would, if enacted and fully implemented in practice, address some of the key deficiencies in the Rwandan asylum system identified by the Supreme Court”.


However, the UNHCR, in common with many witnesses to our inquiry, stressed that the changes in the treaty require sustained long-term efforts at capacity building which can only be assessed over time. The committee agreed with that assessment, which is why we concluded that the treaty is unlikely to change the position in Rwanda in the short to medium term.

On 19 December, when the Home Secretary came and gave evidence to us, he told us that he did not intend to “operationalise” the Rwanda relocation scheme until the Government are

“confident that the measures underpinning the treaty have been put in place, otherwise the treaty is not credible”.

The difficulty is that the Government have already presented a Bill to Parliament asking it to make a judgment that Rwanda is safe now. Yet, on the Home Secretary’s own evidence, it cannot be so, because the measures are not in place and have not been shown to be effective. The treaty is held up by the Government as the justification for the measures in the Bill, yet the treaty cannot at present provide a basis for Parliament to judge that Rwanda is safe while so many aspects of the treaty remain unimplemented and untested.

When the United Kingdom ratifies a treaty, the long-standing practice of government is to ensure that all necessary implementing measures are in place before the Government proceed to ratification. It is true that some of the required steps to implement the treaty need to be taken in Rwanda. However, it is clear from the information supplied to our inquiry that the Government are fully engaged with the Government of Rwanda in developing those implementing measures. The Government should therefore abide by their usual practice of satisfying Parliament that all measures are in place before ratifying. That is why the committee has recommended that ratification should not take place until certain conditions are met.

We consider that the Government should return to Parliament when they believe that the treaty is ready for implementation. They should then give Parliament a further opportunity for scrutiny of the treaty arrangements. Only at that point will Parliament be able to assess properly whether Rwanda is safe. The principle of the separation of powers provides a further reason for pausing. It would be constitutionally inappropriate for Parliament to seek through statute to overturn findings of fact by the Supreme Court; I underline findings of fact because that is what the Supreme Court did. It is therefore important for Parliament to be clear that the facts have indeed changed before making its assessment.

If the Government proceed to ratify the treaty immediately after the end of the CRaG scrutiny period, it could enter into force without being fully implemented, because the Government lose control of the timing of entering into force once it has been ratified. Yet, once the Bill is in force, the judgment that Rwanda is safe is a fait accompli, regardless of whether the treaty has been implemented or not.

Before I conclude, I thank all the witness who took the time and trouble to contribute evidence to our inquiry over Christmas and the new year. I thank all my colleagues on the International Agreements Committee, some of whom I am very happy to see in the Chamber, for their co-operation and support. I thank our officials and advisers for dealing with a substantial amount of material submitted in response to our call for evidence, including a very large amount of material submitted at a very late stage by the Home Office. Finally, I thank the Government for offering us such a prominent debate spot within the CRaG period.

The Section 20 Motion I have tabled in unusual—in fact, unprecedented. We are not saying that the treaty should never be ratified, but we are saying that Parliament should have the opportunity to scrutinise the treaty and its implementing measures in full before it makes a judgment about whether Rwanda is safe.

The Government propose in their Bill that the courts will be precluded from considering whether the Supreme Court’s concerns have been addressed, so it is now for Parliament alone to make that assessment. It is the unanimous view of the International Agreements Committee that we need first to see the protections fully implemented and working. For that reason, the committee concluded in its report that the treaty should not be ratified until the protections that it provides have been fully implemented. I beg to move.

--- Later in debate ---

[Lord Goldsmith (Lab)]

My Lords, I very much resent that last piece from the Minister. I presented this on the basis that it was the view not of the Labour Party but of the committee as a whole. I have tried to be completely unpolitical in what I have said, and it is a great shame that the Minister should choose to make that particular observation towards the end of his speech.

I thank all noble Lords who have participated in this debate, with so many powerful and insightful thoughts from your Lordships. There is not time to comment on them all, but I will touch on two questions. One is the powers of this House and the second is the question before us.

As to the powers of this House, there was some suggestion—I am afraid to say that to some extent it seemed to come out in the speeches of the noble Lords, Lord Sandhurst and Lord Wolfson, both of whom know that I very much admire and respect them—that there is something improper in asking this House to do what I am asking it to do today. It is clear that we do not have the power to delay or block the treaty, but we can pass a resolution, if we so agree, that it should not be ratified at the moment. That is all I have asked, and I will ask for a vote on that later but this is not the moment for that. It is not right to say that that is improper; the statute itself provides in Section 20 that we can pass that resolution, so it is not satisfactory at all for anyone to suggest that doing that is inappropriate. The House has one power, and that is all we are asking it to do.

I come back to the question, because it is important; I dealt with it in my opening remarks. One finds out the question that we were dealing with by looking at the foreword by the Home Secretary to the policy paper that he put forward. I repeat: “This work”—the work is the treaty and associated things—

“will enable Parliament to conclude that the Supreme Court’s judgment has been addressed and that Rwanda is safe for relocations under the Migration and Economic Development Partnership”.

I say to the noble Lord, Lord Howell of Guildford, who knows I very much respect him and appreciate the work he has done on the committee, that that is what safety means: safety from relocations under that partnership. That is what it means, that is what we were looking at and that is where we were unable to reach a conclusion.

The noble Lord, Lord Fox, and my noble friend Lord Coaker were right: the question is not whether there is a willingness to do this or whether the policy is right but whether the instruments are in place at the moment to achieve that result. I will make one slight amendment to that: the procedures to make this possible—the 10 points in paragraph 45—are not things that we thought up but are what the Government say are going to happen. All we are saying is that those things ought to be in place before the final statement is made by Parliament that the policy is safe. Once it is done, and once the Government ratify, that is the end. That is why it is important, in my submission, to follow what the committee decided unanimously—that the treaty should not be ratified until those things are in place.

Let me give one example. Emphasis was rightly placed on the principle of non-refoulement—the Minister referred to that. But he will recall, and the House will recall, that one of the ways in which that is supposed to be protected—it is set out in the treaty—is that an agreement will be reached between Rwanda and this country as to what the procedures are to effect it. It is not in place. As I said in my opening speech, we do not know when it will be in place, although we asked about it.

So I will now ask for the Question on the first Motion to be put and then we will come to the vote on the second Motion.

Motion agreed.