Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Kerr of Kinlochard and Baroness Chakrabarti

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it is always a privilege to follow the noble Lord, Lord Alton, with his decades of human rights advocacy, often at personal risk from some of the rather terrifying regimes around the world that he has criticised. It has also been a privilege to sit in this Committee and listen to the contributions, to remind the Committee, from a former Chief of the Defence Staff, a leading jurist, a former chair of the Conservative Party, and, of course, my noble friend, a former Defence Secretary.

I say to the noble Lord, Lord Horam, with whom it is always a pleasure to engage, on his coach and horses concern that, on one level, he is quite right. The testimony and stories we have heard in relation to all these exemption amendments—I support them all—do indeed highlight the overall illogicality and cruelty of the Bill. There is no doubt about that, but I do not want to rehearse that.

We established last time that Rwanda is not yet safe for any asylum seeker or refugee. We have already argued, and will argue in subsequent groups, that discretion should not be totally squeezed from the Secretary of State’s hands, that the judiciary should not be ousted, that safety should only be a rebuttable presumption and so on. Their testimony bears witness to all the structural problems of the Bill that need to be tackled.

However, I put it to the noble Lord, Lord Horam, in the light of what we have heard about, for example, children, people who have been enslaved and trafficked against their will or those who have put themselves in harm’s way at the service of the British state, that even if Rwanda becomes safe and one agrees with the noble Lord—I do not, but I am on this journey—that it is acceptable to transport human beings for asylum processing, these groups should never be so transported for the reasons that have so compellingly been given.

Some of them, the children and the trafficked people, had little or no say in their arrival in the UK in the first place. Certainly, deterrence can never speak to them and their situation. Then there is the group that my noble friend Lord Browne so ably addressed; we should not dream of deterring them. We made a promise to them and they have paid for it, many of them in courage and blood. How dare we! I am actually rather ashamed that my noble friend had to table an amendment of that kind at all. The people to whom we made that promise will be spared, only because, when he questioned Ministers on 5 February for a relatively lengthy period, they were not able to explain the position once the Secretary of State’s hands are tied and he is under a statutory duty to send people to Rwanda because they came by an irregular route.

So I say to the noble Lord, Lord Horam, whatever our disagreements about the policy as a whole, the Bill in general and all the amendments that I hope will make it a little better, that he must take a different position over the exemptions in this group.

[Lord Kerr of Kinlochard (CB)]

It has indeed been a remarkable debate, as the noble Baroness says. Her own contribution maintained the high standard that has been set; I shall now lower it. I have two small points to make.

First, I strongly support Amendment 75, so ably addressed by the noble Lord, Lord Browne of Ladyton. It extends the exemption not just to the Armed Forces but to any agent, ally or employee of the Crown abroad. That brings in the British Council and the British high commissions and embassies. The noble Lord, Lord Hannay, has frequently drawn attention to the endangered staff of the British Council in Afghanistan. I strongly support this amendment.

It is also relevant to note, in the context of Amendment 75, that Rwanda has never granted asylum to any Afghan, whereas our acceptance rate of asylum claims from those arriving by small boats is 99%. That proves that people who have turned up here from Afghanistan asking for asylum have a very real reason to have fled. Our processes have checked that their cases are valid; they are fleeing a risk of persecution. Rwanda’s track record suggests that their reception might not be as unbiased there as it here, even if the changes introduced by the treaty come into effect in Rwanda. So I strongly support Amendment 75 and I hope we all do.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Kerr of Kinlochard and Baroness Chakrabarti

Committee stage
Monday 12th February 2024 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

It is a breach of international law. The noble Lord made the same point when we had the same debate at Second Reading. It is at variance with the refugee convention and with the European Convention on Human Rights Articles 2, 3 and 13. It may be that in the UK domestic courts it is not seen as a problem; it certainly does not seem to be seen as a problem by the noble Lord, Lord Murray. For me, it is a problem. For a country which purports to support the international legal system, it should be a problem.

[Baroness Chakrabarti (Lab)]

My Lords, I do not think the Committee needs to apologise for an element of repetition and even circularity in contributions on the various groups, because that is the nature of the Bill before us. It is a relatively short Bill, but its provisions are interconnected, as are the different approaches that Members of the Committee have taken to amend them.

Let us take stock for a moment, because we have been on a bit of a stream of consciousness. Members of the Committee have expressed different opinions about whether offshoring per se is acceptable. To my mind, the exchange we have just heard reveals that we do not currently have legal authority in the UK that says that processing asylum claims in another country is unlawful. I agree with the noble Lord, Lord Murray of Blidworth, on that, but I have to say that my instincts are with the noble Lord, Lord Kerr of Kinlochard, on the fact that this is going to be debated for many years to come and we have not had higher court determination of it. It is a debated point internationally. That is a point we can put aside for the moment. There is another question in this Bill, about what is and what might be in the future.

I think that most Members of the Committee have either agreed or even reluctantly conceded that what is is a little different from what we are working on and what might be in the future, which then takes us to how we change the future and how we evaluate changed facts in the future. Then, under the scheme of what is before us, there is first the question of the treaty and then the question of the Bill before us that the Government propose to make an Act. I think there is some considerable support for Amendment 14, which says that the treaty—which is currently a very important trigger in the Government’s scheme, because it is the treaty coming into force that makes the Act come into force—needs to have been effectively implemented, so that facts change on the ground in Rwanda before even the treaty that is the current trigger for the Act can come into force. I certainly agree with that. There are different approaches in the amendments as to how that should be measured, but I think it is just logical that until the treaty, as suggested by your Lordships’ International Agreements Committee, is effectively implemented, even under the scheme of the Bill as drafted, the Act should not come into force.

Then we have a range of amendments offered in subsequent groups about what commencement should look like in the Bill, and later we will have very important debates about judicial oversight and not ousting the jurisdiction of both domestic and international courts.

[Lord Horam (Con)]

I have two points. First, to correct the noble Lord, Lord Kerr, there is precedent in the Australian situation, in that, under the Australian rules, the Government of Nauru make the decisions, with assistance, training and support from the Australian Government. The Rwanda situation is exactly the same. We are trying to bring in training, support and assistance to the Rwandan Government, so the two examples are exactly the same. Australia’s, which has been working successfully for 10 years, has all-party support and is hugely successful. If I may repeat the point I made earlier in the day, there is a great prize here: if we can get genuine agreement on this subject, there is the prize of having a proper, whole immigration policy which the whole country can support, not just this Rwanda business.

Illegal Migration Bill

Debate between Lord Kerr of Kinlochard and Baroness Chakrabarti

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I am grateful to the noble Baroness; I should have mentioned the point myself. I am concerned that the Government keep saying that the UNHCR runs safe and legal routes and that it is perfectly possible for someone in Iraq, Syria or Afghanistan to register with UNHCR, which will see them right. It is simply not true. UNHCR has again said so, formally and on the record. It does not run a clearing house. It does not run a general scheme open to all. It is able to cope with approximately, it says, 1% of the demand.

It is the case that if you are a persecuted young woman in Iran, there is no safe and legal route by which you can come to this country. If you are fleeing in Sudan from the war that the noble Baroness, Lady Hamwee, referred to, there is no safe and legal route to the United Kingdom. UNHCR does not stand up the Government’s story that it is the fallback, the clearing house, that we can always turn to. It says it cannot do that. Obviously, it cannot do that; it is not resourced to do that. I agree that the impact assessment, in considering the deterrent effect on what the Government call illegal immigration, must address the question of how people from war-torn, famine-struck, civil war countries can achieve a legal route.

[Baroness Chakrabarti (Lab)]

My Lords, it is an absolute privilege to follow such a distinguished former Permanent Secretary to the Foreign department. To return to my noble friend’s amendment, it may seem a little counterintuitive or surprising for me to welcome a probing amendment about removal and about a duty to negotiate removal agreements, but I do. The reason is that there is actually a greater and stronger link between the principles that we have been discussing and the practice that my noble friend is considering here, because in this neck of the woods, in particular, the two go together.

I say, with respect to the Committee, that it would have been wise for the Government to have thought about a duty to negotiate removal agreements before they proposed to legislate for a duty to remove. The sin is to have duties to remove with nowhere to remove people to, and duties to detain with no ability to remove, because that leads to indefinite detention.

There were all the arguments that we had on the last illegal Bill, and the arguments that we will have again about whether refugees and asylum seekers should be allowed to work after a period of time. People argued about pull factors, and some of us said that there were push factors, not pull factors. But if people’s claims were being considered quickly, including of those who did not qualify for asylum—who were genuinely illegal migrants and never qualified for asylum—some of us would have no problem with the principle or practice of having a short period of arrest and detention for the purposes of facilitating a lawful removal.

My noble friend Lord Coaker has really hit the nail on the head. What is the practice here? If there is no practical agreement to remove people to whichever country they are from, and people are in practice irremovable, that is where the cruelty comes in. That is a cruelty towards people who are detained for lengthy periods, quite possibly at great public expense, in inappropriate accommodation; this could include accompanied or unaccompanied children not being housed or detained appropriately, not being educated, and so on. That is the sin—the terrible maladministration and lack of good practice, which is then translated into this culture war via more draconian legislation for a general election that will no doubt be sloganed, “Stop the boats”. We do not stop the boats, but we do not welcome the vulnerable people either, so we perpetrate this great swindle on the British people. We toxify a debate that needs to be handled much more temperately, and we do not achieve anything very much at all.

The final link between principle and practice in this area is that, in this amendment, we are talking about a duty on the Secretary of State to negotiate these practical removal agreements for those people who do not meet the tests and do not qualify in the end as refugees. In this probing amendment we are talking about that duty and asking whether it does not need to be a duty because the Secretary of State genuinely wants to negotiate. To go back to what the noble Lord, Lord Patten, said before the break, whether that is the case or not, who will negotiate with us? We have heard some flummery from the Benches opposite about how international law is not real law—“We have a dualist system and let me not give you a law lecture, but it’s not real law, it’s only international law”. If our word is not our bond, who will negotiate with us?

There is currently a contradiction at the heart of government between those who want to be leaders on the world stage, with all the challenges that have to be met internationally at the moment, and those who want a culture war. My understanding is that the Prime Minister is now saying not only that we are going to be part of the Council of Europe and honour our international commitments but that we are going to be the architects of new ones. London is apparently going to be at the heart of regulating artificial intelligence—this is where it is all going to happen. But why should anyone allow us that moral leadership on the world stage, if we will not honour international law?

I look forward to the answers to my noble friend’s questions about the moment when principle really does need to meet practice.

Public Order Bill

Debate between Lord Kerr of Kinlochard and Baroness Chakrabarti

Report stage
Tuesday 7th February 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of my noble friend Lord Coaker and of my friend the distinguished former police officer and consistent advocate for rights and freedoms, the noble Lord, Lord Paddick. Stop and search is always a vexed question; even stop and search with reasonable suspicion is a vexed question. Of course, we must sometimes have it in a democracy, when people are reasonably suspected of various crimes, but even that becomes difficult because the threshold of reasonable suspicion is so low. Stop and search with reasonable suspicion in this Bill is problematic because certain offences in it, for example locking on, are so vague. Therefore, the range of items for which you could be stopped and searched on reasonable suspicion include, as the noble Lord, Lord Paddick, pointed out, things that you might pick up in John Lewis. They could include, for example, your mobile phone if that might be used in connection with the offence of locking on, and so on.

However, my priority is of course stop and search without suspicion. As the noble Lord, Lord Paddick, has rightly pointed out, this has classically been for things such as terrorism and carrying weapons, rather than carrying things such as bicycle chains or mobile phones. Noble Lords will see the problem, which is particularly vexed in the context of the statistics, year on year, on the disproportionate numbers of black and brown people who will be subject to stop and search. Too many young people, boys in particular, have had their first experience of the state and the police service via a racially discriminatory stop and search, because that, unfortunately, has been the culture of policing for too long. We now add a new layer: that there will be lots of young women, not least today, who are particularly concerned about being stopped and searched by the police. That is not a happy thing to have to report, but I am afraid it is the reality.

When I was a young director of Liberty, the National Council for Civil Liberties, almost exactly 20 years ago, what was then Section 44 of the Terrorism Act allowed suspicionless stop and search where it was considered expedient to preventing acts of terrorism. When an arms fair took place in Docklands, large numbers of protesters, not terror suspects but protesters, were prevented from getting anywhere near that fair. They were hassled and detained, sometimes under Section 44 of that Act. Initially, the Metropolitan Police denied that they would ever use such powers in such a way, until questions were asked in Parliament, including in your Lordships’ House.

I sent a young lawyer from Liberty down to Docklands; he came back with large numbers of notices that had been issued to protesters and journalists, and predominantly to black and brown people, under Section 44 of the Terrorism Act. That was stop and search without suspicion. It took many years to take that case all the way to the European Court of Human Rights in Strasbourg, where of course it was found that that power was just too broad. Suspicionless stop and search is very ripe for abuse, so I urge—

[Lord Kerr of Kinlochard (CB)]

I have great sympathy for the noble Baroness’s argument and that advanced by the noble Lord, Lord Paddick, but could she explain whether her objection to Clause 11 would be removed if subsection (7) were removed? It is in Clause 11(7) that what seems to be highly objectionable language occurs. It says that the constable

“may … make any search the constable thinks fit whether or not the constable has any grounds for suspecting that the person … is carrying a prohibited object”.

Supposing that that provision were not in the Bill—is the rest of Clause 11 objectionable?

[Baroness Chakrabarti (Lab)]

This being not Committee but Report, the simplest and speediest answer that I can give to the noble Lord’s question is that Clause 11 is about suspicionless stop and search. He has picked out a particular subsection in the scheme, which would have been interesting in Committee. But the crucial thing is that Clause 11 is on stop and search without suspicion, not in the context even of terrorism, where it can come with greater justification—for example, when everybody is stopped and searched on their way into the Peers’ Entrance if they are not a Peer, or at the airport, where everybody is treated the same. But, by definition, that will not be the case in this scheme. This broad power will be used against young people all over London on the day of a protest. It will cause such strife and will poison relationships between the police service and the people it serves. For that reason, I urge all noble Lords to reject in particular this power to stop and search without suspicion even of the protest offences to which I object in the Bill.

Nationality and Borders Bill

Debate between Lord Kerr of Kinlochard and Baroness Chakrabarti

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I agree with the noble Baroness, Lady Chakrabarti, but my feeling about these amendments is that that the noble and learned Lord, Lord Etherton, is right and that the best answer is to strike out the clause.

[Baroness Chakrabarti (Lab)]

I am so sorry but would the noble Lord remove his mask for a moment so we could better hear his wisdom?

[Lord Kerr of Kinlochard (CB)]

Was everything I said even more incomprehensible than usual? Basically, I am saying that we can amend and improve this a bit, but it would be much better to get rid of it.

I also have one point of detail. I am struck by the double reference to the definition of a safe third country, which I believe is irrelevant because the refugee convention says what it says. The definition is that a safe third country

“is one from which a person will not be sent to another State … otherwise than in accordance with the Refugee Convention”

and that is repeated later. Of course, there is absolutely nothing in the refugee convention about sending somebody to a safe third country, or sending somebody to any country, except there is the firm ban on refoulement, that is, sending somebody back to the country where he had the justified fear of persecution. I understand why the noble Lord, Lord Dubs, has that phrase in his amendment. He is thinking about refoulement, but the Government, when they put it in the Bill, are not thinking just about refoulement. They are thinking about their doctrine of having to seek asylum in the first safe country. They are thinking about their strange reading of Article 31 of the refugee convention. They are not letting Article 1 speak for itself, and their reading of the convention is a quite different one, as was explained by the noble and learned Lords, Lord Etherton, Lord Brown and Lord Clarke, with a different definition from the one that has become the jurisprudence of this country.