Safety of Rwanda (Asylum and Immigration) Bill

Alistair Carmichael Excerpts

2nd reading
Tuesday 12th December 2023 Commons Chamber

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I say sincerely that it is a genuine pleasure to follow the right hon. and learned Member for South Swindon (Sir Robert Buckland). He gave a characteristically thoughtful speech for Second Reading and, more interestingly, laid down several markers for future stages, should we get to that point. This is a most interesting and unusual Second Reading debate; we are seeing played out in front of us a tripartite discussion between one side of the Government, another side of the Government and the Treasury Bench. It is a remarkable spectacle to observe, albeit not a particularly seemly one.

I was struck by the reliance that the hon. Member for Bromley and Chislehurst (Sir Robert Neill) placed on the references made by the right hon. and learned Member for Torridge and West Devon (Sir Geoffrey Cox) to proceedings in relation to the Asylum and Immigration (Treatment of Claimants, etc. ) Act 2004. As the right hon. and learned Gentleman observed, that was where the concept of safe countries was introduced. The list of safe countries included all the EU countries except Croatia, plus Norway, Iceland and later Switzerland. It was another piece of legislation that restricted the access of rights to appeal for those whose asylum claims had been unsuccessful. There are perhaps lessons to be learned for us all in how that line of legislation has developed ever since.

The enduring lesson I take is not that that Act was introduced by a Labour Government—a Government that had David Blunkett as Home Secretary—but that the Bill was opposed, with some controversy at the time, by the then Conservative Opposition. They described it as “clumsy and draconian”. They were absolutely right about that and, many years later, we can see exactly where that sort of legislation has taken us. What is it about the Conservative party of 2023 that now finds that sort of legislation so attractive?

Let us not forget that we are dealing with the consequence of the refusal of this Government to prosecute the case for safe and legal routes. Why do we not find people from Ukraine or Hong Kong trying to cross the channel in small boats? It is because we offer them safe and legal routes. The Rwanda scheme is unworkable—we know that because it has never been made to work—and the barriers are well rehearsed, but every time they are thwarted, the response of this Government is to throw a foot-stamping tantrum. Anyone who ever had any doubt about the depth and scale of Tory self-entitlement can see it laid bare here today. The Bill is not about making the system work or providing an effective deterrent; it is simply about trying to bring together a disparate range of forces within their own party.

How many will Rwanda take over the five years of the agreement? The only reliable information about that comes from the Rwandans themselves: it will be a few hundred. What sort of deterrent effect will that have? Everything that we know about the Bill and the cost of the scheme comes not from the Home Office, but from the Rwandan Government. It is because of the information that they put into the public domain that we learned about the extra £100 million that the Government have submitted; they were never going to tell us.

The problems facing this policy are manifest and they are not going to be wished away. We should not forget, however, that even with those issues wiped away at a stroke, the Bill and the scheme would still represent a moral vacuum where our asylum system should be. It is wrong in the practicalities, but it is also wrong on the principle. It is a liberal value to take personal responsibility and to live up to one’s obligations. Passing on our asylum responsibilities to another country is the opposite of that value. It is a step back from the world and a move towards isolationism. It suggests that we have no responsibilities to the wider world.

Much like this Bill’s rewriting of reality to impose a judgment of safety to Rwanda, these plans would reverse decades of the UK’s leading the way on the international rule of law and rules-based order, of which we should be so proud. Many across the House, having boasted about global Britain, must now ask themselves whether they really want to turn us into fortress Britain. The Bill suggests a grim and illiberal mentality that is a far cry from the confidence that our country used to project, and that, Mr Deputy Speaker, is why we should reject it this evening.

Safety of Rwanda (Asylum and Immigration) Bill

Alistair Carmichael Excerpts

Consideration of Lords amendments
Monday 18th March 2024 Commons Chamber

[Sir William Cash]

I signed the Government’s motion to reject Lords amendment 1 and am happy to support them in it. The fact is that the Lords amendment would add to clause 1(1) the words:

“full compliance with domestic and international law.”

The problem is that that would make the clause one of the most serious and dangerous clauses I have seen in recent statutory history. It would contradict one of the most fundamental principles of our constitutional law.

As my right hon. and learned Friend the Minister for Countering Illegal Migration said, we have a dualist system—I have referred to it several times in the past—and it is fundamental. That is unlike Germany, as article 26 of its constitution states that international law is the most fundamental part of its constitutional arrangements; articles 65 and 66 of the Dutch constitution contain a similar provision. We have a dualist system, and the sovereignty of our Parliament is imperative. Over many generations—in fact, going back centuries—all the court cases, whether in the House of Lords or in the Supreme Court, make it absolutely clear that where words used in statute are clear and unambiguous, and where Parliament’s explicit intention is clear, parliamentary sovereignty means that the supremacy of Parliament can override international law and should do so. The “should do so” is equally important. Indeed, I would go further and say that in our courts, sovereignty—with those clear and unambiguous words—trumps international law.

As I mentioned in an intervention on the Labour spokesman, the hon. Member for Aberavon (Stephen Kinnock), the House of Lords Constitution Committee, including the likes of the noble Lord Falconer, Lord Robertson and various others, clearly stated in paragraph 58 of its report last year on the rule of law:

“Parliamentary sovereignty means that Parliament can legislate contrary to the UK’s obligations under international law.”

That fundamentally disagrees with what is contained in Lords amendment 1, so what—if I may say—the heck is going on? The Lords had a very important decision to take, and paragraphs 54 to 60 of that report contain the very carefully detailed reasoning that led the Committee to the conclusion I have just read out.

I have mentioned in a previous debate the judgment of Lord Hoffmann in a case called R v. Lyons. I want to quote from it, because he clearly says that international law is trumped by the supremacy of the sovereignty of Parliament. Parliament has to be the key determinant. What he says is so important—I would not bother making my point in this way if it were not for this amendment. I am not sure whether the Leader of the Opposition really intends to achieve the objectives set out in clause 1; it worries me very much indeed if he is complicit in this operation. This was a Labour amendment and had a majority of 102 in the House of Lords, so we are going to have to take it seriously, which means we also have to deal with it seriously.

Lord Hoffmann said,

“English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so.”

He went on to say,

“The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not.”

Nothing could be more explicit. Nothing could be clearer.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Will the hon. Member give way?

[Sir William Cash]

No. Amendment 1, put forward by the House of Lords, completely contradicts that principle, because in its wording it makes both domestic law and international law combined a matter of full compliance. I would go so far as to say that it is impossible in many circumstances to actually arrive at a point where there could be full compliance with domestic and international law according to our constitutional principles.

--- Later in debate ---

As I said in an intervention, the Home Office has compiled a 137-page country information note on human rights in Rwanda, collating information from sources ranging from the US State Department to Human Rights Watch, and setting out serious shortcomings in the protection of human rights in Rwanda. I asked the Minister about that, and he seemed very reluctant to engage with that point. I hope that he will come back to it. How does he reconcile his, and his colleagues’, repeated insistence that Rwanda is a safe country with the 137-page document issued by his own Government and updated in January this year? It sets out how it collates the evidence, and says that it tries to take things only from reliable sources. One of the biggest sources in the document is the US State Department—the State Department of one of our major allies.

[Mr Carmichael]

Would there not be some sense in allowing Home Office decision makers to take account of the Home Office evidence that has been gathered together in the way that the hon. and learned Lady describes?

[Joanna Cherry]

The document was withdrawn for a while and updated in January, so I only saw it and read it in detail just before my trip to Rwanda. I was really quite appalled that Government Ministers could continue to state that Rwanda is a safe country from a human rights perspective in the face of the evidence that they themselves collated. I really want to hear a colourable answer to that point.

Before the Joint Committee on Human Rights left the UK, we took steps to find out about the human rights situation in Rwanda. The evidence that we heard gave me great cause for concern about the curtailment of freedom of expression in Rwanda for those who wish to criticise the Government. The US State Department, Amnesty International and Human Rights Watch have reported evidence of unlawful or arbitrary killings, disappearances and torture. One area of particular concern for asylum seekers sent from the UK is the protection of same-sex-attracted and transgender people. The Foreign Office travel advice for Rwanda warns British gay people and British trans people that individuals

“can experience discrimination and abuse, including from local authorities. There are no specific anti-discrimination laws that protect LGBT+ individuals”.

When I put that to Government officials and others with whom we met, I was reassured that the Rwandan constitution contains a general protection against discrimination, which it does, but sexuality and gender identity are not listed there. Crucially, nobody was able to show me any evidence that a gay or transgender person has ever availed themselves of the anti-discrimination protections in the constitution. People were at great pains to tell me that homosexuality and transgenderism are not criminal offences in Rwanda. Sorry to be light-hearted, but whoop-de-doo. As a lesbian, I can tell the House that the mere fact that one is not criminalised is only the start of the story.

I think Rwanda is where the UK was on LGBT rights about 50 years ago. Yes, it is ahead of many other African countries because it is not illegal to be gay or trans in Rwanda, but there are no positive rights and no equal rights protections. We need to acknowledge that, because there are people who come to the United Kingdom because they are gay, transexual or transgender, and they know that we in the United Kingdom have great, world-class equal rights for gay and transgender people. If they are coming here for those protections, they are perfectly entitled to be concerned about being sent to a country such as Rwanda, where no such protections exist.

Many others come to this country because they were dissidents in their country—they have criticised their Government. They come to the United Kingdom, because —so far at least; touch wood—we still have freedom of expression. I am not sure that Rwanda can be described as having the same freedom of expression protections that we enjoy in the UK.

Asylum seekers also come to this country who have been human rights defenders in their country and have been persecuted for it. Again, touch wood, we in this country still have full human rights protections. That, based on the evidence of the Home Office itself, is not the position in Rwanda.

--- Later in debate ---

[Priti Patel]

I absolutely and fully understand the right hon. Gentleman’s position on this, but this is a moment of reflection for the Government, too, particularly around those who served our country and worked alongside us in Afghanistan. The Government need to clarify how they have aided and continue to aid those people, some of whom are on the border of Pakistan, which has a range of migration and governance problems right now.

To conclude, we are at a pivotal moment with this legislation. We are also at a crucial moment in our relationship with the Government of Rwanda, who have been a solid and respected partner, diligently working with us. Obviously I speak with full experience, as the original architect of the migration and economic development partnership. We have to go back to the basics of that partnership. As I said last week in the House, things have moved beyond some of the core principles of the original partnership. I urge the Government to do what they need to do in this House today and to settle some of the issues, but really they need just to knuckle down and work on the operational delivery of the scheme.

[Mr Carmichael]

It is a pleasure to follow the right hon. Lady, particularly given the context she gave to this debate, which is important and worth reflecting on for a second or two. She reminds us that this is in fact the third Bill in this area in this Parliament. Indeed, as the shadow Minister, the hon. Member for Aberavon (Stephen Kinnock), pointed out towards the end of his remarks, we now have another innovation: people are to be offered a cash payment to take the opportunity of going to Rwanda.

What do three Bills and a still evolving political situation and portfolio of arrangements tell us? They tell us that this Government have no strategic purpose in how they are tackling this problem, and that has become apparent from a number of the interventions today.

We have spoken an awful lot about the rule of law. To be honest, this Bill and this debate are not about the rule of law; they are an entirely political exercise. I am pretty certain that the Government will win the votes tonight, that they will face down their lordships, and that they will get their way. I would be astonished if any of the legislation makes any significant difference at the end of the day, because this is not about the law or even about a meaningful approach to the problem of boats in the channel; it is all about politics in the run-up to the election.

One of the most telling interventions came from the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright) and his point about permanence, which was absolutely on point. It is not without significance that nobody has chosen to pick it up, because I do not think there is an answer—or, at least, no good answer. On the question of permanence, let us not ignore the context of where Rwanda is and where Rwanda has been politically and in relation to its neighbours. In January, the US State Department was saying to Rwanda and the Democratic Republic of the Congo that they had to walk back from the brink in the conflict between them. If either or both of them choose not to, where will that leave the safety and stability of Rwanda as a destination for us to send people? The determination, as the shadow Minister said, to legislate to say that somehow or another the sky can be green and the grass can be blue takes no account of those real challenges that are coming down the track.

The Government should look at the authors of the amendments that they will knock back today. One is Lord Hope of Craighead. I remember when he was first appointed as Lord President in Scotland, and I have watched his progression through to being head of the Supreme Court. This is not a man given to making grand political gestures. This is no wide-eyed radical. When he comes up with an amendment to say that the purposes of the Bill should be done in accordance with domestic and international law, that makes perfect sense.

It is not to be forgotten that the roots of this legislation are to be found in a Supreme Court judgment. That caused enormous frustration in Government circles, and we do not forget that, but obeying the law is not an optional extra for any Government. Even if what we are trying to do here is to circumvent the scrutiny of the courts, to resist an amendment that says that decision-makers should treat Rwanda as safe

“unless presented with credible evidence to the contrary”

simply defies any sense of logic.

The hon. and learned Member for Edinburgh South West (Joanna Cherry) made extensive reference to the Home Office guidance on human rights in Rwanda. Her point was good, but it is a nonsense, surely, that in the Home Office, people are beavering away, working out the human rights position in Rwanda, while in another office in the same building, people are drafting clauses saying that the people who will then make the decisions should not allowed to take any account of it. That makes no sense.

If we were serious about finding a solution to the problem and breaking the business model of the people traffickers, the Government would be taking in the Opposition, the Scottish nationalists, ourselves and all parties to try to find a common way forward. In fact, they are doing the opposite. They are seeking to manage the issue politically in such a way as to increase division and not to build consensus. In the time remaining to them in government, they will be able to win votes like this, but they will not do anything to stop the traffic. Ultimately, they will have to be replaced by those who will.

[Sir Michael Ellis (Northampton North) (Con)]

I rise to reject and oppose all 10 of the Lords amendments. In the other place last week, peer after peer spoke of this Bill as an outrageous affront to the law or “international law”. With great respect, there seemed to be a collective amnesia that it is Parliament that is sovereign and that Parliament secured sovereign authority over generations from what had previously been an absolute monarchy. It probably stems from the Glorious Revolution of 1688. Parliament for centuries now has had sovereign authority to pass any law whatever.

No law that Parliament passes can be “outside the law”. In our system, it is Parliament that is supreme. Despite the misnomer of the court that Tony Blair invented, it is Parliament that is supreme, not lawyers or judges. That is unlike the United States, for example, where judges can strike down a law passed by Congress as unconstitutional. In fact, the UK legislature could do the opposite of that, and strike the Supreme Court down out of existence, if such were Parliament’s will. That is, after all, what Tony Blair himself did when he abolished the 150-year-old principle of the Law Lords and the House of Lords as our highest court and created the Supreme Court just a few years ago. Many think that was an act of constitutional vandalism, and I happen to agree, but whether or not one does, it is axiomatic that what Blair did, one of his successors can at least in theory undo. That is the nature of our system.

As my hon. Friend the Member for Stone (Sir William Cash) said earlier, Parliament derives its authority from the people, and that is why parliamentary sovereignty is so important. It is not an aggrandisement. The law is a living, fluid concept. People change and people’s views change, which is why it is right that the people’s elected representatives in Parliament can have sovereignty over decisions that are made. Two hundred years ago, drawing graffiti on Westminster Bridge was an offence punishable by death; now people can block ambulances on Westminster Bridge and receive no more than a small fine. The law has changed in 200 years, and it is imperative that we bear in mind that it is a fluid concept. It has to keep up with the wishes and will of the people.