Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Hannay of Chiswick and Lord Stewart of Dirleton

Report stage
Wednesday 6th March 2024 Lords Chamber

[Lord Stewart of Dirleton (Con)]

It would be in circumstances where compliance is not possible.

Turning to Amendment 37 in the name of the noble Lord, Lord Coaker—

[Lord Hannay of Chiswick (CB)]

My Lords, the text that the Minister read out placed a great deal of importance on the phrase “does not require” a Minister to do something. However, it does empower a Minister to do it. Would what it empowers the Minister to do not be in breach of our international obligations?

[Lord Stewart of Dirleton (Con)]

My Lords, I now turn to Amendment 37 in the name of the noble Lord, Lord Coaker.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Hannay of Chiswick and Lord Stewart of Dirleton

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Stewart of Dirleton (Con)]

The noble Baroness indeed anticipated me as I was turning to that point. As she says, the noble Lord, Lord Purvis, had touched on that. I have the statement by the United Nations human rights chief. The Government repudiate the charges that he places when he says:

“The combined effects of this Bill, attempting to shield Government action from standard legal scrutiny, directly undercut basic human rights principles”.


We disagree with that.

[Lord Hannay of Chiswick (CB)]

Will the Minister answer a very simple question? Did the United Kingdom vote for the High Commissioner for Human Rights to take his post? If so, by what right does it now repudiate his views?

[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.

--- Later in debate ---

[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 Hannay of Chiswick (CB)]

Will the Minister answer a couple of rather simple questions? Has he read the Rwandan legislation? Does he believe it is in conformity with the treaty?

[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.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Hannay of Chiswick and Lord Stewart of Dirleton

Committee stage
Monday 12th February 2024 Lords Chamber

[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—

[Lord Hannay of Chiswick (CB)]

I wonder whether I can encourage the Minister to try that out on some foreigner with whose country we are signing a binding agreement, by telling him, “We will shake hands on that but, by the way, we can do what we like afterwards”. He ought to try it; he would find it quite an interesting experience.

[Lord Stewart of Dirleton (Con)]

That would be a treaty commitment of the sort that is the strongest bond that two countries can enter into, as we have been reminding the Committee. The conventional statement of constitutional reality—as I described it and as my noble friend Lord Jackson of Peterborough described it in his submission, citing AV Dicey—was little more than a reassertion of the position that applies in law and that always has.

The Bill, as currently worded, enables Parliament to come to the same conclusion and provides a statutory finding that decision-makers, including courts or tribunals, will conclusively treat Rwanda as a safe country. Amendments 9 and 13, in the name of my noble friend Lord Hailsham, seek to remove the provision that recognises the sovereignty of Parliament and the provision that confirms that the validity of an Act is unaffected by a domestic court’s or a tribunal’s view that there is a conflict with international law. That is at the core of the Bill, and many of its other provisions are designed to ensure that Parliament’s conclusion on the safety of Rwanda is accepted by the domestic court. The treaty, alongside the evidence of changes in Rwanda since summer 2022, to which we referred, will enable Parliament to conclude that Rwanda is safe, and the new Bill provides Parliament with the opportunity so to do.

I note that Amendment 10 in the name of the noble Lord, Lord German, is a probing amendment that makes it clear that the primary responsibility of the courts is to uphold the constitution of the United Kingdom, including the constitution’s fundamental commitment to the rule of law. That amendment again sets out the status quo. But the rule of law, as a concept, is difficult to tie down in a series of short statements, and I fear that the noble Lord’s amendment would be productive of debate in the abstract, producing perhaps more heat than light.

I again assure the Committee that the United Kingdom continues to be bound by and respects its legal and international obligations. The Bill is predicated on both Rwanda’s and the United Kingdom’s compliance with international law in the form of the treaty, which itself reflects the international legal obligations of the United Kingdom and Rwanda. It does not legislate away our international obligations. The purpose of the Bill is to say that, on the basis of the treaty and the evidence before it, Parliament believes those obligations to have been met—not that we do not care whether they have been. I repeat that the Government take their international obligations, including those under the ECHR, very seriously. There is nothing in the Bill that requires the United Kingdom to breach its international obligations.

As noble Lords will know, states take different approaches to their different international law obligations. Some states treat international law as automatically forming part of their domestic law, but the United Kingdom and other countries with a similar background, including many Commonwealth countries, with which we share so much, have a dualist system in which a treaty ratified by the Government does not alter the laws of the state unless and until it is incorporated into national law by domestic legislation.

On Amendment 32, tabled by my noble friend Lady Lawlor, this legislation provides that a court may grant interim relief, which prevents removal to Rwanda, only where it is satisfied that there is a real, imminent and foreseeable risk of serious and irreversible harm. As my noble friend put it in her submission, the Bill needs tightening. We do not accept the amendment proposed by her and my noble friend Lord Jackson of Peterborough. None the less, I invite the Committee to consider that in the course of the discussion and the interventions which were made on my noble friends, matters of interest and importance emerged.

We do hold that law has to command public support and that it should emerge from public consideration, whether through our common law, which does no more than evolve to meet certain essential propositions that bargains should be sustained and that harm should be punished and compensated for, or whether it emerges from a representative Parliament. None the less, the law dare not risk moving too far from the confidence of the public. The risk to the maintenance of institutions and public peace of judicial activism and overreach moving too far away from what the public is prepared to appreciate is, I think, the point that my noble friends took.

My noble friend Lady Meyer added to the discussion by stating that while the Bill was, in her words, not perfect—that has been something of a leitmotif running through the submissions which we have heard today, and indeed at Second Reading—it is none the less not holding itself out as a silver bullet. It is not perfect because—to quote my noble friend Lord Hannan of Kingsclere—in a dull and sublunary world, very few things are capable of perfection. However, as my noble friend Lady Meyer pointed out, it is rather a pragmatic response to an urgent crisis. I commend my noble friends for their thoughtful analysis of the problems facing other countries grappling with the impact of mass migration, and the risks to their own domestic systems which have been identified as flowing therefrom.

I have said to the Committee and will say again that, as I think we heard earlier from my noble friend Lord Sharpe of Epsom, other countries are watching keenly the experience of this country in moving legislation of this sort. It is clear that this is a huge problem. I readily accept everything that the noble Lord, Lord Coaker, said from the Opposition Front Bench as the last submission to this group about the need to work with our partners abroad to devote resources to smashing the pernicious grip of criminal gangs on people’s lives. However, as I said at Second Reading, we are doing all of that now and there is no simple answer to the problem, and that is why the Bill is being advanced.

I will revert to Amendment 32. As I said, the legislation provides that a court may grant interim relief preventing removal to Rwanda only where it is satisfied that there is a real, imminent and foreseeable risk of serious and irreversible harm. That is the same threshold which can lead to a temporary suspension of the duty to remove under the Illegal Migration Act. These measures are necessary to ensure compatibility with the European Convention on Human Rights and to ensure that the grounds by which people can challenge removal are appropriately narrow. This amendment also undermines the safeguards that we see as necessary to ensure that the Bill and the Illegal Migration Act are compatible with the United Kingdom’s international obligations. The Illegal Migration Act and the Bill include provision for a person subject to removal to a safe third country to make a limited class of suspensive claim on the grounds that they would face a real risk of serious and irreversible harm were they to be removed.

The threshold for serious and irreversible harm is a high one. The harm in question must be both imminent and permanent. This reflects the test applied by the European Court of Human Rights when considering whether to indicate an interim measure under Rule 39, meaning that the United Kingdom courts will have to consider these questions before they are progressed to Strasbourg, further undermining the case for Strasbourg to intervene.

I turn to Amendment 80 tabled by noble Lord, Lord Dodds of Duncairn. The Northern Ireland position was also adverted to in the debate on group 1 by the noble Baroness, Lady Ritchie of Downpatrick. She is not in her place, but I apply my remarks across the House. The Bill will apply in full in Northern Ireland, as it will across the whole United Kingdom. Nothing in the Windsor Framework or the Belfast/Good Friday agreement changes that. I seek to provide reassurance to the Committee in relation to the constitutionally vital point raised by the noble Lord, Lord Dodds of Duncairn.

The Government’s position is clear that the Bill’s provisions relate to administrative matters of asylum procedure and as such do not engage Article 2. This is because the Bill does not relate to the United Kingdom’s departure from the European Union, rights given effect in domestic law in Northern Ireland and underpinned by EU law before the end of the transition period, or the specific rights contained in the Belfast/Good Friday agreement which concern Northern Ireland’s particular circumstances. Any suggestion that the relevant chapter of the Belfast/Good Friday agreement should impinge on the Bill implies that the rights in the agreement are far more expansive than is the case. The Government will continue to defend the application of the Bill on a United Kingdom-wide basis.

I offer further reassurance to the noble Lord, Lord Dodds, and his colleagues on those Benches, with the letter written by my learned colleague in the other place the Minister for Immigration, Michael Tomlinson KC, to Sir Jeffrey Donaldson of the DUP dated 19 January 2024. He said that as he set out in debate and at Second Reading on 12 December, the Bill applies across the entire United Kingdom, and

“neither the Withdrawal Agreement nor the Windsor Framework do anything to cut across that position. I do recognise, however, the concerns raised by your colleagues in Parliament as to whether the Bill may have specific interactions in that regard”.

Nothing in the Bill affects the required incorporation into domestic law of the ECHR, as required in the agreement, or the ability of domestic courts to consider issues of compatibility. Nor does the Bill alter the capacity of the domestic courts to overrule incompatible legislation of the Northern Ireland Assembly with convention rights. The noble Lord referred the Committee’s attention to the Charter of Fundamental Rights. The Government have underlined consistently that the Charter of Fundamental Rights does not form part of domestic law anywhere in the UK, including Northern Ireland.

Northern Ireland Protocol Bill

Debate between Lord Hannay of Chiswick and Lord Stewart of Dirleton

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

I am grateful to my noble friend. I was left by some of the strictures and anticipations of my point from noble Lords looking for synonyms for the words “long-standing convention”. However, in light of having been criticised for going on a bit long and the hour, I will confine myself to repeating—or rehearsing—the point noble Lords anticipated I would make.

It is a long-standing government policy and convention accepted by Governments of all parties not to comment on legal advice provided to the Government. A number of noble Lords who have been present in this debate or at Second Reading will understand personally the importance of that, having acted as internal or external counsel to His Majesty’s Government.

I was asked by the noble Lord, Lord Pannick, about the protocol and its place in relation to the Belfast/Good Friday agreement. The protocol puts that agreement at the forefront; the problem is that, in its implementation, it is undermining it.

[Lord Hannay of Chiswick (CB)]

The Advocate-General has just given the totally conventional response about the Government not publishing their legal advice. In that case, why did the Government publish a four-page document in the summer setting out their legal advice?

[Lord Stewart of Dirleton (Con)]

My Lords, the Government set out their position at the outset to assuage, hopefully, the concerns of Peers and Parliament generally about the steps which they intended to take. I do not intend to go beyond that on the Government’s legal advice.

I was going on to address the point raised by the noble Lord, Lord Pannick, and others—the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Ludford—about the matter of necessity. The noble Lord, Lord Pannick, paid me a restricted compliment earlier. May I respond in kind by saying that I am grateful to him for the wise, kindly, and friendly manner in which he has always engaged with me since I started in this House? I look forward to further engagements with him and the noble Lord, Lord Kerr of Kinlochard, and others on these points.

The noble Lord I think was the first to pose the question, how would it be possible for the Government to depend on the doctrine of necessity when the Government have put their signature, have become a party, to the protocol, having negotiated it? Do those facts, of themselves, prevent the Government from relying on this? Because, as the noble Lord said, the doctrine of necessity cannot be relied on by a party which by its conduct has caused the problem. The noble Lord, Lord Bew, nods his head.

Northern Ireland Protocol: First Treasury Counsel

Debate between Lord Hannay of Chiswick and Lord Stewart of Dirleton

Thursday 9th June 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

I am not aware of that, but I would say that the Government abide by the convention that legal advice given to the Government is not disclosed, so I would be surprised if that had taken place.

[Lord Hannay of Chiswick (CB)]

My Lords, the Minister has stated the convention about not providing the advice the Government receives on legal matters. That is interesting, but it happens to be exactly contrary to what was said. Perhaps if he looks at Hansard he will see that, when this matter was debated shortly before the Recess, the Government spokesman said quite categorically that the Government would be bringing forward a separate document setting out the basis for the legal case. He has just contradicted that.

I have a second question. Could the Minister, perhaps just now, cite word by word any part of the Northern Ireland protocol that authorises either party to it, the European Union or the United Kingdom, to unilaterally depart from its terms. Could he please cite that?

[Lord Stewart of Dirleton (Con)]

My Lords, the terms of the protocol specifically anticipate that it will change in line with developments. I refer the noble Lord to Articles 13(8) and 16 in that regard.