Safety of Rwanda (Asylum and Immigration) Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, we heard this debate opened with great clarity and legal exactitude by my noble and learned friend Lord Etherton, followed by a very good speech from the noble Lord, Lord Cashman. I am not going to go over all that again, but am I right in this simple analysis of the situation in which the Government seek to place individuals who might be affected by this law?

If I can produce compelling evidence that Rwanda is not safe for me—not my brother, but me—I am entitled to a decision from the Secretary of State, no less, or an immigration officer, that I should not have to go to Rwanda. If that decision is not made in my favour, I have all the advantage of the English legal system, through which I can judicially review the decision of the Secretary of State or the immigration officer. But if I can show that there is compelling evidence not that Rwanda is unsafe for me, but only that it is unsafe for a person like me, I am excluded from all the protection of the law, just because I cannot provide evidence that relates to me as a particular individual—who may, as it happens, not be as well-known as someone like me in Rwanda.

If that is the situation, how can His Majesty’s Government possibly justify that difference? It seems to me to be fundamentally unjust. If that is the case, I hope the Minister, who is very open with your Lordships’ House, will say so, so that the House can decide on Report how to deal with my noble and learned friend’s proposal.

[Baroness Chakrabarti (Lab)]

My Lords, it is a pleasure, as always, to follow the noble Lord, Lord Carlile. On this occasion, it is fortuitous to follow him because—without repeating the brilliant points made by the noble and learned Lord, Lord Etherton, and my noble friend Lord Cashman, about the safety of Rwanda for particular groups, which are echoed in my noble friend Lord Dubs’ amendments on religious freedom—he pre-empts a point I want to emphasise about the false binary the Government appear to be creating in Clause 4, for example.

As someone who has worked with the refugee convention for about 30 years, I feel that something is missing—well, there are many things missing, but there is something particularly dangerous about tying the hands of decision-makers in the way proposed, be they the Secretary of State, Border Force, or judicial decision-makers in particular. There is a false binary, which the noble Lord, Lord Carlile, began to outline. At one end of the spectrum, the country is particularly dangerous for Josef K, not other people in Josef K’s family or political party, or in another social group. The language of the Bill uses the following adjectives:

“compelling evidence relating specifically to the person’s particular individual circumstances”,

At the other end of the spectrum—the false binary the Bill proposes—is the general safety of Rwanda, the Bill’s definition of which includes safety from refoulement in particular. Of course, any refugee lawyer or anyone with experience of dealing with asylum anywhere in the world will tell you that, for a great many refugees, the crucial issue—forget the false binary—is membership of a persecuted social group. Those are the social groups highlighted by these amendments, but they could be other political or ethnic social groups, and so on.

On an ordinary reading of this extraordinary draft statute, I have no doubt that even this odd formulation of the specificity of the person’s “particular individual circumstances” would be construed by a court as including membership of a social group. That would be a normal reading of even this draft provision. However, because of all of that odd stuff in Clause 1 about the purposive construction the Government propose—disapplying the common law, disapplying the Human Rights Act and so on—there is now a real question mark about whether social groups are included for the purposes of Clause 4, for example.

To be fair to the Minister, in his letter, which I read, the clear indication is that social groups would be covered, because HJ (Iran) and gay people who are persecuted are alluded to. But, with respect, if that is the case, in the light of the very odd formulation of this draft statute, the noble and learned Lord, Lord Etherton, and others have done the Government an enormous favour. At the very least, they ought to agree to the amendments proposed by the noble and learned Lord. Otherwise, I fear that, because of all these straitjackets in the Bill upon decision-makers, including the Secretary of State, let alone the judiciary—we will come to it later—the Government may find that they are sending people to Rwanda in circumstances where they do not want to, and contrary to the Minister’s letter. For those reasons, I support the amendments in this group.

[Lord Falconer of Thoroton (Lab)]

My Lords, I strongly support the amendment of the noble and learned Lord, Lord Etherton, which he moved almost unanswerably. I agree with the support given to it by my noble friend Lord Cashman, and I support his proposal of the amendment of my noble friend Lord Dubs.

The specific point my noble friend Lady Chakrabarti made is key. I can understand the idea that Rwanda is not a safe country in general because it has no adequate system of addressing asylum seekers and is willing to refoul people irrespective of the merits. I strongly agree with my noble friend when she says that, if a person—for example, a member of the LGBTI+ community—says, “I would not be safe if I were sent back to Rwanda”, that relates specifically to their “particular individual circumstances”, which is the language of the Bill.

The purpose of the noble and learned Lord’s amendment, and of that of my noble friend Lord Dubs, as proposed by my noble friend Lord Cashman, is not to determine in this House whether Rwanda is safe for LGBTI+ people; it is to ensure that, if there is a question mark over that issue—if somebody asserts that, because they are a member of the LGBTI+ community, the Minister is not tied by determining that Rwanda is a safe country—the courts would then consider the question.

Key to the House’s determination of these amendments is the Government’s view of what the Bill, particularly Clause 4(1), means. In responding to the noble and learned Lord’s amendment, can the noble Lord, Lord Sharpe of Epsom, tell us whether, if a member of the LGBTI+ community asserts that Rwanda is not safe for gay people, a Minister can take that into account under Clause 4 in relation to that person? Can he indicate whether, if that applicant disagreed with a Minister’s conclusion, they could go to the courts? We need to know that to determine whether we need to put the noble and learned Lord’s amendment on the statute book.

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Moved by

[Baroness Chakrabarti]

39: Clause 4, page 4, line 12, leave out from “question” to end of line 14
Member’s explanatory statement
This amendment, and other amendments to Clause 4 in the name of Baroness Chakrabarti, restore the jurisdiction of domestic courts by rendering the future safety of Rwanda (evidenced by UNHCR advice) a rebuttable presumption and restoring the ability for UK courts and tribunals to grant interim relief.

[Baroness Chakrabarti (Lab)]

My Lords, this group goes to the heart of domestic, constitutional, rule-of-law concerns about the Bill. I share Amendments 39, 44, 49, 50, 52 and 53—the bulk of the group—with the noble and learned Baroness, Lady Hale of Richmond, and the most reverend Primate the Archbishop of Canterbury. The noble Viscount, Lord Hailsham, is also a supporter of this group but gallantly withdrew his name because he is prevented from being here today. These amendments will restore the proper jurisdiction of our courts. In a moment, the noble and learned Baroness, Lady Hale, will explain them, but for now I beg to move.

[Baroness Hale of Richmond (CB)]

My Lords, I shall explain why I am proud to support this vital group of amendments to Clause 4 proposed by the noble Baroness, Lady Chakrabarti. They restore to the courts of this country the role which is properly theirs under our centuries-old constitutional arrangements, which respect the separation of powers between Parliament, the Executive and the judiciary.

I must apologise to the Committee that prior commitments prevented me speaking at Second Reading—although I was there for the all-important closing speeches—and attending the first two days of the Committee’s considerations. I have, however, followed the proceedings closely and have been hugely impressed by the quality of the debate.

I agree with so many noble Lords that reversing the very recent findings of fact in our Supreme Court with absolute and for ever conclusions as to the safety of Rwanda, ignoring international law, and disapplying the Human Rights Act are of the gravest concern. However, it is also of the gravest concern that the Bill ousts the jurisdiction of His Majesty’s courts and tribunals to consider matters which are properly theirs to consider, in a constitution which respects the rule of law. It is for the courts to decide whether the Executive have violated, or propose to violate, the rights of individuals—rights they are given, as the Supreme Court made clear, not only by international law and the Human Rights Act but by other UK statutes and by the common law of the land, of which we are so rightly proud.

Amendment 39 restores to the Executive the ability to consider the general safety of the Republic of Rwanda, not just the particular circumstances of a particular individual. This reflects the concerns already expressed in Committee, not only that the situation in any country may change very quickly but that it makes no sense to be able to examine the circumstances of a particular individual but not the evidence that hundreds or even thousands of people may be imprisoned or tortured there. This amendment would also cater for the concerns raised by the previous group of amendments about members of a particular social group.

Amendment 44 restores the same ability to evaluate such vital country information to courts and tribunals considering decisions to remove individuals to Rwanda.

Amendment 49 restores the ability of decision-makers, whether in government or in our courts and tribunals, to look at evidence that the Republic of Rwanda will or may refoule people. Refoulement, as the Committee well knows, means sending people to places where they are at risk of persecution.

Amendments 50, 52 and 53 also restore to our domestic courts and tribunals the jurisdiction to grant interim relief to claimants, preventing their removal to Rwanda until their cases have been properly considered. Amendment 48 in the name of the noble Lord, Lord Coaker, also restores the jurisdiction of courts and tribunals over possible refoulement but not the possibility of granting interim relief, so, with respect, though commendable in itself, it does not go quite far enough.

I remind the Committee that Clause 5 of the Bill allows for the possibility that a Minister of the Crown may comply with interim measures of the European Court of Human Rights. As a matter of sovereignty, it would be odd indeed if an international court could grant relief to people within the United Kingdom when our own courts and tribunals have been deprived by statute of any say at all. In my experience as a judge at the highest level in this country, there is a great deal of respect between our own courts and the European Court of Human Rights in Strasbourg. If and when Rwanda were to become a safe country, our courts would find it so and the Strasbourg court would almost certainly agree. On the other hand, if our own courts are unable to consider the matter, the international court would have to scrutinise the decisions of the UK Government with great care—an outcome which many noble Lords may think regrettable.

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[Lord Stewart of Dirleton (Con)]

My Lords, the Government are working with the Government of Rwanda to implement new protections to the Rwandan asylum system, including the introduction of new legislation. I am reverting to a point that was taken earlier, but I give the same answer that I gave to the noble Lord, Lord Coaker. Protections offered by the treaty will prevent refoulement from Rwanda to elsewhere.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister, who has been very patient with so many concerned Members of the Committee, but everything that he says very honestly in relation to each question suggests that the safeguards are not yet in place. Therefore, Rwanda is not yet safe, because that was the whole point of the treaty: to offer additional protections and to attempt to assuage the concerns of the Supreme Court. How can all of this be academic? This is not a bathroom that has been plumbed in and we are now just painting the tiles; we do not have the plumbing yet.

[Lord Stewart of Dirleton (Con)]

My Lords, the treaty guarantees that anyone relocated to Rwanda will be given safety and support and will not be returned to a country where their life or freedom will be threatened. That directly addresses the Supreme Court’s concerns about refoulement. As to the matter of the use I made of the word “academic”, I was using that in answer to points raised by noble Lords in relation to why the Bill bars the taking of general points of academic interest, which was referring to a point once the Bill and the treaty are in place. Once they are in place, there is no possibility of refoulement from Rwanda without contravention of an international instrument. The point is that, at that stage, argument before the domestic courts would be academic. I give way to the noble Lord.

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[Lord Stewart of Dirleton (Con)]

I cannot go beyond the terms of the clause to which the noble and learned Lord refers. Clause 9(1) states:

“This Act comes into force on the day on which the Rwanda Treaty enters into force”.

[Baroness Chakrabarti (Lab)]

As always, I am grateful to the Committee for its deliberations, but on this occasion I am particularly happy to welcome the noble and learned Baroness, Lady Hale of Richmond, to those deliberations, and indeed to what I hope will be a long and happy role as a legislator in your Lordships’ House. I think the Committee will agree that she dealt with this important group of amendments with the expertise and clarity that we would have expected. She pointed out the dangers of the “for ever” conclusion that Rwanda is safe and therefore the inability of our domestic courts to ever look at that issue—something that I think every speaker other than the Minister found unsatisfactory and said so more than once.

The noble and learned Baroness pointed out the oddity of a situation where there would be at least the possibility of jurisdiction in the European Court of Human Rights in Strasbourg in circumstances where our domestic courts had been stripped of jurisdiction. For those concerned about sovereignty, that seems to be a very odd state of affairs. The one thing that the Bill does not purport to oust is the final jurisdiction of the European Court of Human Rights in Strasbourg—although it attempts to allow Ministers to ignore interim relief from Strasbourg—but it completely ousts all serious jurisdiction of our domestic courts, particularly in relation to the issue of the general safety of Rwanda. That is a very odd and unsatisfactory state of affairs and, again, no one in the Committee other than the Minister appeared to say otherwise.

I am grateful to the right reverend Prelate the Bishop of Chichester and my noble friend Lady Lister of Burtersett for reminding the Committee what the UNHCR said just today about the Government of the UK attempting to shield themselves from judicial oversight. My goodness me—what would we be saying about any other country or jurisdiction in the world that that was said about by the main refugee monitor at the UN? Furthermore, I am grateful to the noble Lord, Lord Purvis of Tweed, for pointing out the significance of this in places such as the UN Human Rights Council, and how shameful it is that an examination of the UK should now be threatening to eclipse the situations in the Middle East and Ukraine. There are almost no words.

When there are almost no words, thank goodness for the noble Lord, Lord Deben. I refer the Committee to Hansard last Wednesday, when he spoke about the “nature of truth” and how we should always be seeking after it and never trying to end that exploration. I say to the Minister that rather more important than any references to John Donne today was the allusion to Al Gore; it is the inconvenient truth that the Government are constantly seeking to avoid with this Bill. It is the inconvenient truth that Rwanda is not yet safe, hence the need for the treaty in the first place and all the mechanisms that need to be brought in and operated under it. This was put so well, repeatedly, by my noble and learned friend Lord Falconer of Thoroton. There is also the inconvenient truth that we still believe in the rule of law in this country. We still believe in anxious scrutiny of individual cases before people’s rights are put in jeopardy. There is the inconvenient truth that, even if Rwanda became generally safe tomorrow, things could change quickly, as they do in countries all over the world, as was pointed out once more by the noble and learned Baroness, Lady Hale of Richmond.

I am grateful to my noble friend Lady Whitaker for pointing out very real concerns about journalists currently detained in Rwanda. We wait for responses “in due course” from the Government about reports of torture of the journalists currently incarcerated there. I was grateful for the support of my noble friend Lord Coaker on the Opposition Front Bench. I thought, if I may say so, that the courtesy and deference he gave to the noble and learned Baroness, Lady Hale, and the mutuality of respect between them, boded well for the attitude of a future Labour Government. I will hold him to that in due course, I hope.

[Lord Coaker (Lab)]

In due course.

[Baroness Chakrabarti (Lab)]

Yes, in due course.

I say to the Minister that I am sure the Committee is very grateful for his patience and courtesy, as always, but this was a very difficult couple of hours. I do not know whether the word “decree” was a Freudian slip or just some straightforward, slightly shameless honesty. We now live in a country in which we are going to determine something as important as whether another country is safe for asylum seekers, not by fact finding or seeking after truth, as the noble Lord, Lord Deben, would like, but by decree. I cannot believe that I am now living in a country where facts of such importance are determined, in effect, by Executive decree.

It is not even by parliamentary decree because Parliament will not have the opportunity to examine all these shadowy mechanisms under the treaty. My noble and learned friend Lord Falconer, with the able assistance of the noble Lord, Lord Purvis of Tweed, attempted again and again to get answers about these but answers came there none. When will this legislation be brought into Rwanda? Who has seen the draft legislation? Who are the experts? All these are things that the Supreme Court was concerned about.

I remind the Committee that the Supreme Court never doubted the good faith of the Rwandan Government. It just felt that, on the evidence, the mechanisms and cultures were not yet there on the ground. The Minister, courteously and kindly, could not answer any of those questions. Therefore, in addition to stripping our domestic courts of their jurisdiction over such important matters, the Government have singularly failed to assure this Committee that Rwanda is safe and that we should “decree” it so.

I will end unconventionally with a comment made by one of your Lordships’ security staff to me earlier in the day. For obvious reasons, he shall remain nameless.

[Lord Scriven (LD)]

Or she.

[Baroness Chakrabarti (Lab)]

He or she or they—I have sort of admitted that it was a gentleman. He said to me that he had heard various comments I have been making. I said, “I am sorry for that; it is all rather depressing, isn’t it?” He said, “My Lady, I think there are all sorts of people that we would like to kick out of our country, but we don’t want to kick out our values”. I think that was a pretty good summation, worthy of any Member of the Committee.

Finally, I say to the Minister: if Rwanda is so safe, or if it will become safe and be safe for a long time, there is nothing to be afraid of in this group of amendments. The Government should not be afraid of His Majesty’s judges or the courts that have been the pride of this country and admired all over the world for so long. For the moment only, however, I beg leave to withdraw my amendment.

Amendment 39 withdrawn.