Safety of Rwanda (Asylum and Immigration) Bill

Lord Howard of Lympne Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, we commence the vital work of this Committee with amendments that address a fundamental dispute of fact: that the Government’s attitude to checks, balances and the rule of law now threatens our unwritten constitutional settlement. Having failed to convince our highest court that the Republic of Rwanda is currently safe for asylum seekers and refugees, the Executive seek to overturn the Supreme Court’s recent factual determination, ousting the jurisdiction of domestic courts to reconsider those facts in the light of further developments, including the Rwanda treaty on which the Government rely. The Government further purport to take powers to ignore interim orders of the European Court of Human Rights. Thus, they threaten both the domestic rule of law, especially the separation of powers, and the international rules-based order.

I remind noble Lords not just of the Supreme Court’s decision of 15 November last year but of subsequent reports of your Lordships’ International Agreements Committee, endorsed by an overwhelming vote in your Lordships’ House; of the Constitution Committee, including three former Conservative Ministers and a former No. 10 chief of staff; and now the majority report of the Joint Committee on Human Rights. I will assume that some members of those committees will speak, so I will leave them fully to outline the clear results of their deliberations.

None the less, as your Lordships overwhelmingly decided to give this Bill a Second Reading, I will approach the task of amendment in the spirit of constitutional compromise, seeking to amend the Bill in line with the Government’s desired policy of offshoring asylum decisions while also seeking to comply with the Supreme Court’s decision and the unequivocal advice of your Lordships’ International Agreements Committee and Constitution Committee—this notwithstanding my personal objection to transporting human beings for processing, which will no doubt be subject to further political and legal scrutiny in the months and years ahead.

For present purposes, I take the Government at their word—even if that word has been put rather belligerently to the Supreme Court and your Lordships’ House. I will assume that the Government do not want to put the Executive of the United Kingdom on a collision course with our Supreme Court or our international legal obligations, so amendments in this group seek to offer a way through the stalemate for people of good will from all sides of your Lordships’ House. Amendments 1, 2, 5 and 34 in my name are supported by the most reverend Primate the Archbishop of Canterbury, the noble and learned Baroness, Lady Hale of Richmond, and the noble Viscount, Lord Hailsham. I have signed Amendments 3 and 7 tabled by the noble Viscount. The noble Lord, Lord German, has Amendments 11 and 12.

Your Lordships’ Constitution Committee warned of a number of concerning trends in the present Government’s approach to our constitution and our courts, which seeks, for example, to disapply the Human Rights Act for particular unpopular groups rather than repeal it wholesale for everyone. I observe another new fashion in adding a lengthy introduction to a relatively short Bill that deems facts changed, making its purposes so clear that the courts should be wary of interpreting the legislation as they might otherwise do. However, since the arrival of this Bill in your Lordships’ House, the Prime Minister has stated—by a press conference, but stated—that his Rwanda Bill was designed to assuage the concerns of the Supreme Court.

Therefore, Amendments 1 and 2 add a secondary but essential purpose to the primary purpose of preventing and deterring what the Government see as unlawful migration. This purpose is to

“ensure compliance with the domestic and international rule of law by providing that no person will be removed to the Republic of Rwanda by or under such provision”

unless two conditions are met. The first condition is that there is advice from the UNHCR that Rwanda is now safe; for example, as a result of the successful implementation of promised reforms and safeguards to the asylum system there. The second condition is that this advice has been laid before both Houses of Parliament.

Now, some may balk at what they regard as a foreign body having any role whatever in the assessment of facts on the ground in Rwanda. However, as the Joint Committee on Human Rights noted, our Supreme Court’s concerns about the lack of safety there were in no small part in the light of unequivocal expert evidence from the UN High Commissioner for Refugees, with its special expertise and role under the refugee convention.

If the Executive is now asking Parliament to become complicit in overturning findings of fact by our Supreme Court—this is made explicit by Amendments 3 and 4 in the name of the noble Viscount, Lord Hailsham—it should at the very least allow Parliament to hear advice from the expert body that the Supreme Court found so authoritative before allowing facts to be deemed as having changed. Accordingly, Amendment 5 replaces the edict that Rwanda “is” safe with that belief that it “may become” so, because it should be our unanimous aspiration that the whole world becomes a safer place for persecuted and displaced people.

Further, as even an independent expert body should never usurp the fact-finding jurisdiction of our courts, especially in dangerous and fast-changing times, Amendment 34 makes it clear that even clear and positive advice from the UNHCR would create only a “rebuttable presumption” that Rwanda is safe. In keeping with earlier legislation, as observed by the Constitution Committee of your Lordships’ House, it would not hobble our courts with an absolute conclusion. Yet, if the Government are really so confident that that Rwanda treaty, unlike the refugee convention so long before it, will be implemented so as convincingly to render that country safe, they have nothing to fear from either these amendments or our courts. I beg to move.

[Lord Howard of Lympne (Con)]

My Lords, I must begin by apologising for the fact that I was abroad at the time of Second Reading and was therefore not in my place at that time. Much was made at Second Reading of the notion that the Bill in some way contravenes our constitutional principles, is an affront to the separation of powers, and infringes on the power of the judiciary. Those allegations are thoroughly misconceived but they are highly relevant to this amendment.

The plain fact is that we are a parliamentary democracy. That means that Parliament is sovereign and the reason why so many of us cherish that overarching principle is that we attach high importance to something called accountability. Accountability was not a word which featured very large in your Lordships’ debate at Second Reading. The courts are accountable to no one; they proudly proclaim that fact. Many of the bodies to which Parliament has in recent years outsourced some of its responsibilities have little, if any, accountability. But Parliament itself, or at least the other place—the House of Commons, in which I was privileged to serve for 27 years—is truly accountable. It is answerable to the British people at regular intervals and its Members can be summarily dismissed.

There are those who seem uncomfortable with our system and it is indeed true that there has been something of a whittling away at it in recent years. The courts have extended their power. Parliament itself has contributed to it by the outsourcing to which I referred. I often think it is a pity that those who praise these developments failed to come up with some suggested alternatives to parliamentary democracy, but there it is.

These amendments, if passed, would mark a new jump in this process. I ask those who support them to address the question of accountability. To whom is the United Nations High Commissioner for Refugees accountable? They might say to the General Assembly of the United Nations, perhaps. To whom is that body accountable? Neither the high commissioner nor the General Assembly have any responsibility for securing our borders. They have no responsibility for the safety of those who make the perilous channel crossing. They have no duty to take into account the resentment felt by so many against the sheer unfairness of illegal immigration and the way in which it gives preference not to the most deserving, but merely to those who can afford to pay the people smugglers.

Our elected Government and this Parliament bear those responsibilities, and the House of Commons is directly accountable to the electorate for the way in which those responsibilities are discharged. These amendments would prevent our Government and Parliament discharging those responsibilities. They seek to outsource those responsibilities to an unelected body with no accountability. The acceptance of these amendments would constitute nothing less than an abdication of the responsibilities of government. I note without surprise—

[Lord Kerr of Kinlochard (CB)]

I do not understand the argument that the noble Lord is making. As I understand the amendment in the name of the noble Baroness, Lady Chakrabarti, the responsibility laid on the UN High Commissioner for Refugees would be to advise the Secretary of State. I do not see how that makes him accountable; it would remain the Secretary of State, surely, who was accountable to this Parliament for the decisions that he decided to take in the light of the advice he received.

[Lord Howard of Lympne (Con)]

I fear not. The easiest way of replying to the noble Lord is to read from the Member’s explanatory statement on the amendment:

“The amendments require positive UNHCR advice on the safety of Rwanda to be laid before Parliament before claims for asylum in the UK may be processed in Rwanda”.


If there is no positive advice from the UNHCR, those claims cannot be processed in Rwanda. I think that will aid the noble Lord’s understanding of what I am saying.

[Lord Kerr of Kinlochard (CB)]

I was referring to the text of the amendment.

[Lord Howard of Lympne (Con)]

I think it is perfectly reasonable, if one wants to know the intention of the amendment, to look at the Member’s explanatory statement. That is, indeed, the purpose of the explanatory statement.

I note with interest, but not with surprise, that none of these amendments is signed by any member of the Opposition Front Bench. I am not surprised because no party that aspires to government could support the abdication of the responsibilities of government, which these amendments would achieve.

I will just say a word about Amendment 7 in the name of my noble friend Lord Hailsham and others. It asserts that the decision of the Supreme Court was a “finding of fact”. But it was not; it was a finding of opinion—the Supreme Court’s opinion that the removal of asylum seekers to Rwanda would expose them to the risk of refoulement. It is an opinion on which men of good faith and true can disagree. Indeed, it is an opinion on which distinguished judges disagreed.

The Divisional Court, one of whose two members was a Lord Justice of Appeal, came to the conclusion that what the Government were proposing was entirely lawful. The Court of Appeal, by majority, disagreed, but the then Lord Chief Justice dissented. In my view, when the Supreme Court reaches a conclusion on a matter of opinion, it is entirely legitimate and proper constitutionally for Parliament—the House of Commons is democratically accountable to the people, and the Supreme Court is not—to substitute its own opinion. That is what the Bill does, and that is why I support it.

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[Lord Howard of Lympne (Con)]

As I said in answer to the noble Lord, Lord Kerr, it is not simply a question of seeking advice from the United Nations High Commissioner for Refugees. The amendments clearly state that, unless positive advice is obtained, no one can be removed to Rwanda. So the decision will no longer be the decision of the Secretary of State; it will be the decision of the United Nations High Commissioner for Refugees. That is the point. It is not just advice; it is advice which would be binding, according to these amendments, on the Government.

[Lord Hannay of Chiswick (CB)]

I thank the noble Lord for that point. He interrupted me before I got to the answer to his question—but that is fine. I had been going to say that the doctrine, according to the noble Lord, Lord Howard, is that every member that has signed the refugee convention—well over 150, I think—and ratified it, including our sovereign Parliament, has the right to reinterpret the convention as it wishes. You have only to stop and think for one minute what that implies to realise that it implies complete chaos and the law of the jungle. If all 150-plus members of the United Nations refugee convention are able to stand up and say, “Well, actually, this is what I think the convention means, and I don’t care a damn what the High Commissioner for Refugees says”, then we are living in chaos. It is to avoid that that these amendments are being put forward.

I strongly support the arguments of the noble Baroness, Lady Helic, who expressed extremely eloquently the reason this country has a real interest in paying attention to these matters.

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[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—

[Lord Howard of Lympne (Con)]

Before the noble Baroness goes to the point where she disagrees with me, I thank her for her response to the first point I made. Of course, I do not speak for the Government, but no doubt we will consider the matter further when we get to Report.

[Baroness Chakrabarti (Lab)]

My Lords, I am again grateful to the noble Lord. However, his second central point was the big constitutional one: that Parliament is sovereign—that is pretty much it—and that the Supreme Court’s decision on 15 November was mere opinion rather than a determinative finding of fact in our system. I am afraid that I must disagree with him on that, in essence for the reasons outlined later in the debate by my noble and learned friend Lord Falconer. He in turn echoed some of the points made by the noble Lord, Lord Clarke of Nottingham, at Second Reading about the dangers that lie in the future should it be possible, in our country, for Governments with large majorities, of whatever stripe, to use legislation to change not only any old finding of fact but a finding of fact that was made recently by our highest court. That is not only silly, to echo the noble and learned Lord, Lord Garnier, but very dangerous in a democracy that is built, fundamentally and first, on the rule of law. Parliamentary sovereignty follows, but Parliament, and the Executive in particular, must have a little respect for the independent referees of our democratic system.

I was grateful to the noble Baroness, Lady Helic, for making the international point that follows from that: that the domestic rule of law is the bedrock of our system, but a quarter of the way into the 21st century, so is the international rule of law. All sorts of terrible consequences come when we do not respect that. She cited wars of aggression and war crimes that, in turn, drive a displacement of people that is leading to the refugee crisis that Governments around the world are trying to respond to. Therefore, she is a great proponent of the international rules-based order, as we know from her other work.

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[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.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise with some hesitancy, in the middle of a rather technical debate, but I would like to make a couple of points on this group. The Committee has already heard from my noble friend Lady Jones of Moulsecoomb who, in her inimitable way, made it very clear that the Green Party remains utterly opposed to the entire Bill and greatly regrets that we gave it a Second Reading—but we are where we are.

From listening to the debate on the first group, a word that came up again and again, which might be surprising to people listening from outside the Committee, was “silly”. Of course, what we are talking about is deadly serious, but the definitions of “silly” are interesting, if you look them up. One is “showing a lack of common sense or judgment”. Common sense and judgment are two things that this group of amendments seeks to introduce to the Bill, so I commend the noble Lord, Lord German, for introducing it so clearly and the noble and learned Lord, Lord Falconer, for his excellent assistance in presenting the argument.

It is a statement of the obvious that Parliament, and certainly your Lordships’ House after our vote on the Rwanda treaty, does not believe that what the Bill states is common sense. It is not based on the evidence and has been disproved. More than that, these amendments are making a person, the Secretary of State, responsible for making a judgment. If we are to have the rule of law, a person has to be identified and held responsible for making that judgment. We are introducing a sense of responsibility and evidence here, which would at least be a step forward.

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[Lord Stewart of Dirleton (Con)]

As I say, this is now a matter of a treaty commitment by that country. We surely accept the possibility that countries have changed. We know the trauma Rwanda has gone through in the comparatively recent past, and we support and acknowledge the work it is attempting to do as a forward-looking African country, looking to provide solutions as opposed to exporting problems.

[Lord Howard of Lympne (Con)]

These questions have ranged far and wide, but was not the one issue, as I understand it, on which the Supreme Court came to its decision the risk of refoulement? That is covered in the treaty, and anybody would be able to see and know whether anyone was refouled in breach of international law and the concern expressed by the Supreme Court.

[Lord Stewart of Dirleton (Con)]

I am grateful to my noble friend. The matter is entirely patent on the Supreme Court’s decision. It is about refoulement. We now have a treaty commitment preventing that happening.