Rwanda: Memorandum of Understanding

Baroness Hayter of Kentish Town Excerpts

Monday 6th February 2023 Lords Chamber

Asked by

[Baroness Hayter of Kentish Town]

To ask His Majesty’s Government why they used a Memorandum of Understanding rather than a treaty as the vehicle for the agreement with Rwanda on the transfer of asylum seekers. Relevant document: 7th Report from the International Agreements Committee

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I am delighted, after four months, to see the International Agreements Committee’s report on Rwanda debated here; albeit, I have to say, because of my success in a ballot rather than because of its importance. Yet this issue is important to the asylum seekers involved but also for the future of our parliamentary role in scrutinising the action of Ministers.

Thanks to the Constitutional Reform and Governance Act 2010, treaties must be laid before Parliament for 21 days, where they can be debated, evaluated and, in the case of the Commons, their ratification endorsed or delayed. That is a powerful stay over the ability of government to make international treaties without parliamentary consent.

Today, we will hear from members of the International Agreements Committee who wrote this report: the noble Lords, Lord Kerr of Kinlochard, Lord Lansley and Lord Razzall, the noble and learned Lord, Lord Morris of Aberavon, and the noble Earl, Lord Sandwich, together with one of our newer members, the noble Lord, Lord Udny-Lister. On behalf of this House, they and other members of the committee examine every treaty and report on it. However, with the Rwanda accord, we see an issue with enormous human rights and rule of law implications, potentially affecting the lives of thousands, yet the agreement was signed not as a treaty but as a memorandum of understanding. This allowed the Government to bypass Parliament; indeed, it came into force on signature without any opportunity for parliamentary scrutiny.

Two weeks ago, on 12 January, two Lords committee reports on the usurping of parliamentary power by Ministers were debated in this Chamber. It was stated:

“The abuse of delegated power is in effect an abuse of Parliament and an abuse of democracy.”—[Official Report, 12/1/23; col. 1536.]


The first report, Government by Diktat, was in the committee’s words,

“a stark warning—that the balance of power between Parliament and Government has ... been shifting away from Parliament”.

The second, Democracy Denied?, was an alert

“to a potentially serious threat to a cornerstone of our constitution—effective parliamentary scrutiny of legislation”,


it being a

“matter of urgency that Parliament should … consider how the balance of power can be re-set”.

On Rwanda, the avoidance of the CRaG Act treaty scrutiny by means of an MoU makes one conclude that that is exactly why that vehicle was chosen. I will not go into the rights or wrongs of the intention within the MoU—the offshoring of asylum claims—because its legality is being tested in the high courts, while its morality is for other fora. However, we noted in the report that, since this was agreed by a non-binding MoU, its so-called safeguards are not legally enforceable, meaning that neither the individuals concerned nor the UK can ensure that asylum applicants’ rights are protected once they arrive in Rwanda.

Our committee concluded that the Government should not have signed a deal with Rwanda merely as a political statement without parliamentary scrutiny. It has significant consequences for individuals and their rights; it involves public expenditure; and it is a major new policy, with far-reaching implications. Surely something of this importance is the business of Parliament and not just of Ministers.

It is unacceptable that a Government should use prerogative powers to agree important arrangements with serious human rights implications without scrutiny by Parliament. Rather, such agreements should be signed as legally enforceable treaties or, if for any reason that is not possible, the Government should deposit MoUs for parliamentary scrutiny in the same way as a treaty, allowing 21 days before implementation.

Indeed, major constitutional changes to our handling of refugees is even better done by legislation, which, we read in the Times, the Government are now planning. Regardless of whether any of us agree with that policy, being described elsewhere as draconian and possibly removing rights of appeal, should Parliament agree, then that is the law. However, I had concerns when I read in yesterday’s Sunday Times that if a court does something that the Prime Minister does not like, he will pull us out of the European Convention on Human Rights rather than accept a judge’s ruling. The Government seem to think they can be above the law.

Today’s debate is about why the Government chose to bypass Parliament in the method by which they chose to implement a new policy. We invited the Government to engage constructively about how to handle non-treaty arrangements of such importance. Unfortunately, we were given no sensible answer and no debate in your Lordships’ House to put our case in public. Our ballot system for debate is what brought us here today and I am grateful that that at least existed and, for once, I was lucky in the ballot. I hope, however, that today we will get a more constructive answer from the Minister to this serious question: why did the Government use a MoU rather than a treaty for the Rwanda agreement?

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

Well, I am sure that we can discuss this on another occasion.

[Baroness Hayter of Kentish Town (Lab)]

Before the Minister sits down—I think we have six minutes—he said that the Government used an MoU rather than a treaty because it could be amended. Does he accept that the detail of treaties can also be amended? More importantly, on an MoU, surely that could still—by the choice of the Government—have been laid for 21 days to give parliamentary scrutiny. Parliament will not be able to scrutinise the committee referred to by the right reverend Prelate, but the MoU could have been laid for 21 days. Does the Minister accept those two things, that the treaty itself could be adapted and that an MoU could have been laid before Parliament?

[Lord Murray of Blidworth (Con)]

I thank the noble Baroness for those two questions. On the first point, no, to amend a treaty would be a more cumbersome process than the flexibility afforded by a memorandum of understanding. On the second point, it is clear that Parliament had considerable opportunities for scrutiny, as I have set out, and there was no want of scrutiny from the method adopted.