Safety of Rwanda (Asylum and Immigration) Bill

Baroness Kennedy of Shaws Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

[Lord Murray of Blidworth (Con)]

I rise in response to a point raised by the noble Lord, Lord Cashman, who referred to an article in today’s Times written by a Member of the other place, Joanna Cherry. She is, of course, the chair of the Joint Committee on Human Rights, on which I sit. I attended the same meetings as she did with members of the LGBT community in Rwanda and with the chairman of the Legal Aid Forum. I must tell your Lordships that I do not agree with the views that she expressed in the Times. She obviously comes from a political party that disagrees with this policy, and I am afraid that that has coloured her judgment in this regard. I do not find that the evidence that we heard sustains her conclusions.

We heard that Rwanda is a leading light in the region—east Africa—for the LGBT community. As we heard from the noble Baroness during the previous day of Report, this is a country that does not discriminate against LGBT activity and has very strong general protection against discrimination in its constitution. For those reasons, I am afraid I have the misfortune to disagree with the noble Lord, Lord Cashman.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I was not on the visit to Rwanda with the committee, but I looked at all the notes that were taken, and I want to make it clear that, while the constitution of Rwanda provides remedies for those who have suffered discrimination, the problem is that no cases have ever been brought using that part of the constitution. To say that there are well-established principles and well-established methods to protect individuals has not been tested in the courts—and the opinion of others who were approached was that the place was not safe. Noble Lords heard that from the noble Baroness, Lady Lawrence, on Monday. Unfortunately, when noble Lords say that it depends on how one approaches these things, I am afraid that it does—it depends on whether one has an open mind and listens clearly or does not.

[Lord Cashman (Lab)]

For the record, the Foreign Office travel advice for Rwanda was:

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


In that instance, I wonder why the UK Government give refuge and asylum to LBGT people from Rwanda.

Safety of Rwanda (Asylum and Immigration) Bill

Baroness Kennedy of Shaws Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

Therefore, it is our contention that Rwanda cannot be considered a safe place for those who are non-religious or those belonging to minority religions. They may fall foul of this law simply by expressing their beliefs. This is why my noble friend Lord Dubs has put forward this amendment, to make it clear that those who would be at risk due to their lack of religion, or their minority religion, would fall into the scope of Clause 4. Therefore, on behalf of my noble friend, I put forward this amendment.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support the two amendments just mentioned by my noble friend Lord Cashman. I remind the Committee, in relation to the LGBT community, that when the law was changed in the mid-1960s in this country it did not end the persecution of homosexuals. For years afterwards, there was a constant terrorising of the gay community. “Queer rolling” is a term that noble Lords will remember—men being attacked simply because it was suspected that they might be homosexual, or they were in a particular place at a particular time of night. The situation was really grave.

When I was a young lawyer in the 1970s and 1980s, one found oneself in court representing people who were being framed for the offence of importuning, which is still a criminal offence in Rwanda. The police harassed and monitored particular venues known to be habituated by gay men. It took many years before we ended that cultural underplay, which exists in societies even when the law is changed. We know that this is the situation in Rwanda, which has a high level of persecution of gay people still.

I also support the amendment in the name of my noble friend Lord Dubs, which relates to freedom of religion and belief. Many of those fleeing Afghanistan are Hazara. It is a religious minority of the Shia tradition, and they are sorely persecuted in Afghanistan and Pakistan. I conducted an inquiry, which concluded at the beginning of last year, into the persecution of the Hazara. It is one of the main reasons that our security services put them on a high level of risk of being persecuted by the Taliban and other extremist groups. Unfortunately, they are likely to continue to be persecuted by others in Rwanda because of their particular religious beliefs.

I, too, feel that there is a misunderstanding about what “safety” means. In this Bill, when we talk about safety, it does not mean that, in declaring that Rwanda is safe, a person cannot say, “It’s not safe for me”. That is the point. When someone comes to a court and says, “This place is not safe for me because I am gay, or because of my religious beliefs or my non-religious beliefs”, those are bases on which any court protecting people’s human rights would declare that the place was not safe. I want that to be in the minds of noble Lords as they ruminate on this Bill and the amendments to this Bill—that questions of safety cannot be rubbed out of existence simply by a declaration of Parliament that a place is safe.

[Lord Purvis of Tweed (LD)]

My Lords, I have added my name to these amendments. The noble and learned Lord, Lord Etherton, spoke very powerfully in moving them, and I shall not seek to repeat anything that he said. It is a pleasure to follow the experience and knowledge of noble Lords who have spoken before me in this group.

I just wish to refer to two elements of why I have supported the amendments. I know that my noble friend Lord Scriven will speak to this group after me. The first is a general point with regard to the assessment of safety in a country where the Government have made a political decision that it can be nothing other than safe. This is what we debated on a previous group. That is illustrated in this group to an alarming degree. We can refer to the equality impact assessment with regard to the legislation; that assessment was carried out after the Bill had been agreed by Ministers, as I understand it. Ministers stated that Rwanda was to be a safe country.

The assessment says, in paragraph 3a, in consideration of the duty of eliminating

“unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Equality Act”,

that:

“We consider that removal to Rwanda would not risk discrimination or less favourable treatment as it is a safe country”—


and that is it. Ministers had already decided that it was a safe country, so equality impact assessments are now rendered almost completely pointless when it comes to Ministers deciding this.

That is notwithstanding the noble and learned Lord, Lord Stewart of Dirleton, stating in this House that he could not say that Rwanda was safe yet, because safeguards were not in place. So we are in a situation where the contradictory nature of the decisions about safety, especially for those who may be more vulnerable than others if they are relocated, has now become political and not evidence based. That should be alarming for all legislators.

The second point that I wish to make is the inconsistency of what the Government are saying, because it is led from the political decision that was made for this Bill. The noble and learned Lord, Lord Etherton, quoted the current FCDO travel advice for someone travelling to Rwanda voluntarily. If they are travelling to Rwanda voluntarily and are LGBT+, they are warned by the Foreign Office that they

“can experience discrimination and abuse, including from local authorities”—

that is the Government of Rwanda. So the Foreign Office advises voluntary travellers that they can experience discrimination and abuse from the Government. The Home Office is saying that, for someone being located there involuntarily, there is no possible experience of discrimination and abuse from local authorities. So which one trumps? Is it the Foreign Office or the Home Office that has the best advice to receive on this situation?

On the FCDO traveller advice, with regards to discrimination and abuse from local authorities, the Minister has an opportunity in responding to the amendment from the noble and learned Lord, Lord Etherton, to outline in clear terms at the Dispatch Box some examples of discrimination and abuse from local authorities. The reason why this is important is that it is the Government’s policy that those who are relocated to Rwanda, once they have been processed, will then become residents of Rwanda in local authority areas. The Government state in their travel advice that there is a recognition of a general concern about discrimination and abuse but that, with regard to this legislation, only specific and personal high-bar thresholds for potential discrimination and abuse can be considered.

The final thing I consider to be relevant is the country note for Rwanda, which is the basis on which the decision-makers will make their decisions, either for remedies or in seeking some form of injunction or relocation. It was cited by the noble and learned Lord, Lord Etherton. The country advice that was withdrawn had an interesting comment on potential crimes against LGBTIQ+ persons:

“Lack of reporting of crimes against LGBTIQ+ persons, due to stigma and fear of harassment, results in limited information”.


The Government, with limited information, can make categorical decisions—but of course, they will be made on a political basis. So perhaps any amendment we move to make this objective is futile, because it is not going to change the fundamental position: that Ministers have politically decided that Rwanda is safe and will always be so.

Safety of Rwanda (Asylum and Immigration) Bill

Baroness Kennedy of Shaws Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, I cannot answer the noble Baroness’s question about why those statistics are not kept. My noble friend Lord Sharpe of Epsom tells me that they are not. That may be a matter to be taken back to the Home Office to be given consideration. It would be pointless for me to speculate on the reasons why that should not be.

[Baroness Kennedy of The Shaws (Lab)]

I have not taken part in this debate—I came in only earlier this afternoon—but on this I have some information. It is that the mental health situation in Rwanda is very poor. The country suffered a genocide, as we all know, some 30 years ago. There is a very high level of mental illness within its population. Apparently 25% of the population have mental health problems or suffer depression or recurring episodes of post-traumatic stress disorder. It is intergenerational, so the next generation also suffers the consequences. There are only 15 psychiatrists in the whole country and very few trained psychologists. We are talking about a very underresourced country when it comes to mental health problems.

[Lord Stewart of Dirleton (Con)]

My Lords, I am reminded that Article 13 of the treaty makes the specific provision:

“Rwanda shall have regard to information provided”


by the United Kingdom

“about a Relocated Individual relating to any special needs that may arise as a result of their being a victim of modern slavery or human trafficking, and shall take all necessary steps to ensure that these needs are accommodated”.

--- Later in debate ---

[Lord Carlile of Berriew (CB)]

On the noble Baroness’s first question, I agree with the sentiments that she expressed earlier.

I will answer her second question slightly differently: I am puzzled by the hostility that some in the governing party show to the European Court of Human Rights. My understanding is that, on a weekly if not monthly basis, our Government call the European Convention on Human Rights into use to justify government arguments in individual cases. I do not understand that the Government are saying that they do not want to use the convention to their advantage anymore; it is done on a very selective basis for a small number of cases, and generally against the justice of those cases.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, all of us lawyers can tell war stories about cases that we have been involved in or that we remember, but the first test of the declaration of incompatibility happened after the introduction of the Human Rights Act, when 9/11 had happened and we too were concerned with national security. We entered into a process of arresting people—detention without trial. It was a shameful thing at that time, and the case worked its way through the courts, which said that this is not compatible not only with our respect for due process and the rule of law but with the human rights protections under our new legislation. The Supreme Court—actually it was the committee of the House of Lords at that time—in the case of A and others v Secretary of State decided that this was indeed in contravention of the Human Rights Act. It spoke about how foreign nationals in particular were being gathered together in detention. There were issues about creating hierarchies and about detention without due process. As a result, a declaration of incompatibility was made.

It is important for people to know that what happened then was that the Government of the day—it happened to be a Labour Government—respected the court’s decision. That is the concern of some of us now: there seems to be less respect for court decisions. That worries us. In the ordinary way, if our Supreme Court were to make a declaration of incompatibility, one would expect a Government to do as the Labour Government did at that time, which was to look for ways in which they could introduce law that was not discriminatory to those to whom it applied and that introduced a certain level of oversight and due process. Nobody would know that better than my colleagues on the Cross Benches who, as lawyers then, sat in special capacities to oversee that sort of legislation.

It was a very interesting moment, because it was about declarations of incompatibility and how Governments should respect courts that are saying, “This is incompatible”. It concerns us that there seems to be a rising level of disrespect for the rule of law—it is happening not just in this country but elsewhere—but we should be better than other places, because that is deeply embedded in our tradition and is so important to us.

In answer to what was said by the noble Lord, Lord Murray, that somehow the European Convention on Human Rights was invoked even before the Human Rights Act, in fact it took six years to take cases from start to finish to get to the European court on matters, and that is not what we wanted. That is what the Human Rights Act was all about: bringing human rights home. That is what it did, and it is something that we should all be proud of.

[Lord Carlile of Berriew (CB)]

My Lords, I took it that the noble Baroness was asking me a question from the way she started—no, do not ask again. First, I absolutely yield pre-eminence to her in anything related to war stories. On her substantive point, she is right. I was the Independent Reviewer of Terrorism Legislation at the time when holding people without charge in prisons on suspicion of terrorism was declared unlawful. In 2005, the law was changed. It was changed only because of the intervention of the courts following rational and detailed argument. The country did not become a more dangerous place. It became a more lawful place, with better argument about the results. There were huge benefits from that change, but it was made only because there was a fairly complex but easily dealt with legal process.

Safety of Rwanda (Asylum and Immigration) Bill

Baroness Kennedy of Shaws Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

[Noble Lords]

Oh!

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I am sorry to interrupt. We have not received any evidence as to how this change has taken place in this short period. Rather than an assertion, what evidence is being placed before this House as to what is taking place and what has taken place to totally change the assessment of safety? I really would like to hear what the evidence is.

[Lord Falconer of Thoroton (Lab)]

My Lords, could I assist the noble and learned Lord in relation to this? There is a document called Safety of Rwanda (Asylum and Immigration) Bill, and what this rather excellent document reveals—no doubt the noble and learned Lord will correct me if I am wrong—is that, since the Supreme Court decided, there has been the agreement that has been entered into, which is really just making legal and international law commitments they had already given, and that just before the Supreme Court gave its judgment, two courses were held, one from 18 to 22 September 2023 and the second from 20 to 24 November 2023, in which a number of Rwandan officials were trained, as the document says, to have a better understanding of the refugee convention.

Apart from those two courses and the entering into of the agreement the Minister referred to, will he tell us what else has happened since the rendering of the Supreme Court’s judgment, which I think was a few weeks ago?

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

It is not a matter of being ready in an instant. The work is being undertaken. The point is that we have a specific treaty commitment not to refoul. As the noble and learned Lord knows, but just to remind the Committee, that is not to send people from Rwanda anywhere other than back to the United Kingdom; and, specifically, not to send them to places where they might be subject to torture or mistreatment; and, further, not to send them back to the countries from which they emerged if those countries are deemed dangerous.

[Baroness Kennedy of The Shaws (Lab)]

Have we bought through financial consideration special treatment for the people we send for asylum, as distinct from anyone else being considered for asylum; or is the asylum system as a whole being reformed? If we are buying them business class, as distinct from sitting at the back of the bus, does that really conform to our high standards of the rule of law and the protection of human rights? Or are we just buying something a bit special for the folk we are intending to put on a plane?

[Lord Stewart of Dirleton (Con)]

My Lords, the Government enter into diplomatic arrangements such as treaties with other countries on behalf of the Government, the people and the country of the United Kingdom. Decisions on how to approach handling immigration or asylum claims elsewhere are surely matters for other countries. We would not trespass upon their independence and privileges in order to negotiate on behalf of them with a separate sovereign country.

[Baroness Kennedy of The Shaws (Lab)]

Is their whole system to be reformed in order that we can be confident of the quality of decision-making?

[Lord Stewart of Dirleton (Con)]

I think the noble Baroness has my answer, but the point is this: we do not impose or seek to impose upon anyone; nor, when the noble Baroness talks about buying privileged status, would I go along with that. What I am talking about and what the Government are seeking to enact in this measure is a commitment with a forward-looking, democratic country which is signatory to the same treaties and international obligations as we are.

--- Later in debate ---

[Lord Blunkett (Lab)]

My Lords, I speak to Amendment 8 and associated Amendment 72 in my name. I am grateful to the noble Lord, Lord Kerr, and to the right reverend Prelates the Bishop of Bristol and the Bishop of St Edmundsbury and Ipswich for their support. I have also added my name to Amendment 64 tabled by my noble friend Lord Coaker.

I have tabled Amendment 8 for several reasons in relation to what happens to those who would find themselves translated to Rwanda should this Bill become law and should there be time for the Government to find the mechanisms and processes to make it work, which is in considerable doubt. Nothing that I say this evening should be taken as any endorsement whatever for any part of the Bill, because I do not believe that it will work or that it is acceptable in terms of our international conventions.

I take up the point made at the end of the last group by the Minister, when making a gallant effort to defend the Government, that this is about deterrents. The deterrent is Rwanda. The deterrent is the refusal, through the Nationality and Borders Act and then the Illegal Migration Act, to allow people to claim asylum when they reach our shores if they do not come with the appropriate accreditation and passport. As there are no current resettlement routes outside the particular routes for Ukraine and Hong Kong that are currently working, anyone outside those bespoke processes is denied asylum in the UK. The previous Home Secretary and her predecessor both made it very clear that what they were doing here was indicating that someone who came without those papers and processes was illegal. By being illegal they became, in the words of Suella Braverman, a criminal—they therefore broke our values and should not have the right to be processed here but instead should be transferred to Rwanda.

My amendment and the associated Amendment 72, which deals with the treaty requirements, are very simple. Someone who is offshored and can justify their asylum claim by showing that they are a genuine refugee should be allowed back into the country. That was true of the Australian scheme mentioned earlier, which incidentally was about picking people up in the 1,000 nautical miles of sea before people reached Australia and translating them back to the processing company.

The one thing the Australian scheme had in common with the Rwanda scheme is the cost: it ended up at £1 million per individual, which is what we will end up with here. They had that in common.

What the Rwanda scheme does not have in common with the proposition from, I repeat what I said a few weeks ago, the very far-right Prime Minister of Italy, the leader of Brothers of Italy—I do not know whether Members on the Benches opposite accept that she is a genuine right-winger—for offshoring to Albania is that those who are adjudged to be asylum claimants and shown to have refugee status will be transported back to Italy. They have the right to come back to the country that originally transported them out.

I want to make this clear, although at this time of night the message probably will not get across, but I do not believe that Members of the House of Commons understood what they were passing. I do not mean to be patronising, but I just think that they did not take account of the detail; neither did the public. I do not think they understood that it is a one-way ticket. We are not offshoring by any known concept of that process, but showing Rwanda, as I just described, to be a threat. If it is a threat, it is a threat. What is the threat about Rwanda? It is that it is Rwanda.

The Bill is a one-way ticket that, bizarrely, allows asylum to be claimed or not. In the responses at the end—and I gave notice of this at Second Reading—I would be interested in knowing what happens if someone who is not allowed to claim asylum in the UK, having been transported to Rwanda, chooses not to claim asylum in Rwanda. It cannot be presumed that, because they had tried to claim asylum in the UK and were criminalised when denied it, they would claim asylum in Rwanda. Perhaps we could park that and someone can give me an answer.

Let us say that they do claim asylum in Rwanda: they will end up no different from those who have not claimed asylum, because they will be in Rwanda. Sadly, those who have demonstrated their legitimate claim to asylum, and therefore are refugees by every international convention, will be in exactly the same position as those who are adjudged not to be refugees but who remain in asylum. The only two categories among those who can reach the UK from Rwanda are those who are claiming asylum in the United Kingdom as Rwandans, or those who cannot be transported from Rwanda to the country of their origin because it is unsafe and who are allowed back under the Bill. Those are the only two categories. Those who are not allowed back are those who have actually demonstrated their refugee status. This is Alice in Wonderland stuff; it is absurd.

If this is all about sending signals to the traffickers that their business model is broken, we would really be breaking the asylum seekers rather than the organised criminals. They would simply say to people, “If you are going to be transported to Rwanda, but you demonstrate your refugee status, you will remain in Rwanda, just as those who do not will remain in Rwanda”, the asylum seekers will disappear into the ether. Organised criminals are to be dealt with in subsequent groups in Committee. Genuine refugees will find themselves in the hands of organised criminals and part of modern slavery. We know that that will happen, because that is what organised traffickers will tell asylum seekers: “We will give you a telephone number. Ring it, and we’ll find you a job and a bed, and we’ll own you”.

If there is anything moral in how we stop people coming across the channel in dangerous small boats, it is not the morality of sending away the organised traffickers. It is the immorality of encouraging people to disappear into the hands of those same organised criminals.

I am suggesting that—as with Giorgia Meloni, and every other system in the world that has ever existed, as far as I know—those who demonstrate their refugee status, and have been transported from the country they finally reached, should be allowed to come back as refugees. It might not fit the threat of Rwanda that we talked about earlier, and will talk about in subsequent groups, but it would fit our commitment to our international obligations and the human rights of those individuals. If we do not do that, we are developing a concept of the United Kingdom as a country that will not only breach all international conventions that we have signed but our basic morality. That would be demonstrably dangerous for this country and other parts of the world in years to come.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, the full incoherence and madness of the Bill has just been exemplified in the speech of the noble Lord, Lord Blunkett. The many possibilities here are incredible, such as the idea that asylum seekers may well receive the advice that when they get to Rwanda they should not apply for asylum. What do the Rwandan people do then? We should ask ourselves that question: where do you send them back to? To Britain, whence they came—they are not applying for asylum here—or back to France, our great partner in trying to deal with the crime that is emanating across Europe, with which we need to be collaborative, and need intelligence and serious investigation into criminal gangs?

I was rather attracted by the suggestion of the noble and learned Lord, Lord Hope, that we change the tense and make it about the future: that if Rwanda does become the safe country we are being asked to vote that it is, that we feel it has a legal system capable of making these assessments, and it is properly monitored, and we receive evidence—I have mentioned evidence before—we must be sure of that, and putting it into the future might be rather appealing. The one thing I had concerns about was when the noble and learned Lord said that this would not cause delay. I am hoping that there will be delay.

I do not want to see people being flown to a place in which this great project of modernising and improving the system will take place. If it is going to happen at all, I want it to have happened before we send anybody there. I happen to take the view, unpopular among many, that exporting people and sending them away is part of the problem. We are not doing as Italy’s ultra-radical, proto-fascist leader Ms Meloni is doing, which is asking the Albanians to do on Italy’s behalf what the Italian system would be doing. We are not asking for that; we are sending them there. We are exporting a problem.

I am concerned about the issue of delay and perhaps the noble and learned Lord, Lord Hope, will respond at some stage. I see him getting to his feet; maybe he can help me.

[Lord Hope of Craighead (CB)]

I do not quite understand the point that the noble Baroness is making. When I talked about delays, I meant the delay of implementing the Bill—putting the various people in place for the monitoring to take place. The fact is that the committees I mentioned already exist. The distinction is between that situation and setting up new independent monitoring, which will take time. That is my only point, but of course I appreciate that all the time that is necessary should be taken to be absolutely sure that implementation has been achieved. That is a different question.

[Baroness Kennedy of The Shaws (Lab)]

So the delay we were talking about is delay in the implementation of this legislation. I remind your Lordships of an example of that. The Human Rights Act passed in 1998. The point was made at the time that it would not come into operation until 2000, because it was accepted that there would have to be considerable training and learning before it could possibly take effect in the courts in a sensible way. We had to make sure that decisions would be made in a way that complied with that Act and the European convention. We recognised that, if you want to create change of that sort, there have to be concomitant changes in systems, training, lawyering and judging.

So I would certainly want to see evidence of more than four days of training. The International Bar Association is involved in training lawyers and prosecutors around the world in relation to, for example, coercive interrogation, as we politely call it, to prevent the torture of people who are arrested and to make sure that, to comply with the rule of law, we do not use those kinds of practices to extract confessions in our systems of law around the world, because we have learned that confessions extracted in that way are never reliable. Training takes place, but we all recognise that four days of training does not produce the goods. Two sets of four days of training, as we have had so far in Rwanda, do not create a change in the culture.

We are talking about something much more substantial and meaningful in changing systems. I remember, because I was in the radio studio with him at the time, when the Supreme Court’s judgment came out and Lord Sumption and I were asked, on the “Today” programme’s podcast, about the effects of it and the Government’s response that they were going to pass a Bill in which they said that the country was safe. He was absolutely shocked and said it would be disreputable to do such a thing. Why did he say that? He said it himself on the programme: it is the systems that are problematic here. The outcome of refoulement is a result of inadequate systems. To change them would be a substantial challenge, and not one that can be completed in a matter of months. The story is that somehow the evidence on which this was based was outdated, but we must have evidence of substantial change before we can possibly consider the Bill as an acceptable one to put through this House.

I certainly cheer on the amendment from the noble and learned Lord, Lord Hope, and any other amendments that may come forth that will delay this, but we know that this is really about an election that is coming up, in which this has become a very heated issue. There is a desire on the Prime Minister’s part to fulfil Ms Braverman’s dream: that she will see a flight go into the air to Rwanda, carrying on it some of these asylum seekers. That is the dream; that is the election flag that has to go up the flagpole. All I can say is that it would be unfitting, inappropriate and unworthy if this Parliament passed the Bill for that reason.

[Lord Bishop of Lincoln]

My Lords, I rise to speak because I suspect I am in a minority as one of the very few Members of this House who have had direct contact with Rwanda, having had 10 years’ engagement with the diocese of Kigali, the capital city, and the great joy of visiting the country and seeing life outside in the countryside. One of the most moving things of my nearly 40 years of ministry was praying at the national memorial for the holocaust in Kigali with a local bishop who had lost so many members of his family. He was still so distraught that I had to find the words for our prayer together.

I put on record that I have come across so many wonderful Rwandans who would be hugely great examples to us individually of the practice of forgiveness and trying to make life beautiful again after a terrible tragedy. I can think of one instance where I met a priest; most of his family had been murdered, and in an act of forgiveness he took the murderer of his loved ones into what was left of his family, because he felt there was a requirement upon him to demonstrate and show forgiveness in this terrible situation.

It is also true, in my experience, that Rwanda has done a remarkable job in developing its economy. I was going to say it was a “tiger economy”—that is perhaps the wrong fauna for the Great Lakes region, but there have been real strides forward in their economy. Of course, people have been very eager to support their President because he has largely delivered to them peace.

It is also my direct experience, relating to what the noble Baroness, Lady Kennedy, said, that the institutions of civil society remain substantially undeveloped. It seems to me that, although we may agree with the noble and learned Lord, Lord Hope, and might want to say that Rwanda could in the future be a third-party partner in dealing with these issues, I would strongly say that that day has not yet come.

Of course, I am not in principle against the idea of third-party partnerships; it is very interesting what we hear about Italy. It seems to me that what is required is a real, dedicated commitment to a partnership among western nations in seeking to see how this could be done effectively and generously towards those whom we categorise as criminals, many of whom have suffered dreadful trauma and persecution in their homeland, which is the only reason they have taken the risk and put themselves in the hands of these dreadful criminal gangs.

It is also very important that we take account of the fact that, if we are going to even think about the prospect of sending people to a third-party country, there has to be a guarantee, as evidenced in Amendment 8, that people have a right to return and establish their claims here. If this is not allowed, it is simply a case of our throwing the problem away. That seems to me to be simply immoral, and not something that we as a nation should be contemplating.

We need to look very carefully again at putting this burden on the people of Rwanda and how we might think much better about working together with other nations in developing a pattern that will help us, in the longer term, cope with huge further migration through climate change, which we have not even contemplated yet and which will affect us very deeply.

Operation Soteria

Baroness Kennedy of Shaws Excerpts

Thursday 13th July 2023 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

A number of years ago, a very interesting initiative that was put in train was the creation of something called SARCs—sexual assault referral centres. Women could go to these special centres, where they would be examined by doctors and nurses who were specially trained, there would be people who could counsel and it was not about policing at that stage. It allowed young women who had been raped to have the swabs and the forensic evidence taken and put into a place of safety and kept if there was going to be a prosecution. But the women were not forced initially to make a decision—

[A noble Lord]

Question!

[Baroness Kennedy of The Shaws (Lab)]

The question is, and it is an important one: what has happened to those SARCs? How many are there in the country? They seem to have disappeared off the radar, and young women do not even know that they exist.

[Lord Stewart of Dirleton (Con)]

My Lords, I do not have to hand the information that the noble Baroness seeks, but I undertake to write to her. I am aware of the existence of SARCs. They came in and were located within hospitals so that people did not face the daunting prospect of immediate engagement with the criminal justice system but were brought in gradually. I share the noble Baroness’s concern about this matter and, with her leave, will write to her.

Illegal Migration Bill

Baroness Kennedy of Shaws Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Clarke of Nottingham (Con)]

My Lords, I will be brief because my timetable has not allowed me to take a significant part in the Bill hitherto. However, I have attended quite a lot of the debate, which I started attending in a very troubled state of mind, completely uncertain about what I would do about this startling proposal. I sat through quite a bit of the Committee debate, and have listened today to the debate on the two amendments we have had, and I think that the underlying problem is being missed. We all agree that there is a huge problem with illegal migration and that, if we cannot find a solution, people will die in the channel in considerable numbers—they go up each year—by taking risks as they come here. We all admit that it is a global problem, so, if we suddenly become an easier country than others, we are likely to find significant pressures.

We all want to retain our excellent reputation—it is not unblemished, but better than those of most other European countries—for good race relations and an integrated community. During my lifetime, Britain has become a multicultural, multiracial society, and I am glad to say that I think the majority of my fellow citizens feel that the contribution that has been made, and the improvements to our society, are quite substantial as a result. As my noble friend said a moment ago, concern about the dinghies and old fishing boats bobbing on the ocean will, if we are not careful, rearouse all the bad feelings that we used to know, which we remember only too well from 20 or 30 years ago. That is why more than 60% of our population wish to stop illegal immigration.

I have tried to listen for a solution during the debates on the two groups of amendments but, sadly, the only solution being put forward is the rather extraordinary one by the Government that we simply cease to entertain illegal immigration and deport to safe places. I have not heard a single alternative policy put forward. I am not sure that it will work—I think I said that at an earlier stage—but I am still to hear anybody else offer anything but the possibility of litigation or huge numbers of people coming here as the practice of trying to get over the channel grows. We have to face up to our responsibilities. I am a lawyer and have a huge respect for law—abiding by the rule of law is one of the most important underlying principles of our constitution—but we cannot simply produce a lot of legalisms to shoot down the proposal without making any suggestion whatever of a practical kind that is likely to impact a great national problem, which we share as part of a global problem.

Finally—I am sorry that I have spoken for longer than I intended—I give this Government credit, not for coming up with the extraordinary idea of Rwanda but for making our contribution. We have done well with Ukrainian and Hong Kong refugees and admitted a lot of people from Afghanistan, although we could have made a better job of that. We are making our contribution to the global problem and taking a huge net increase to our population each year; we are getting some benefit, as it is helping our workforce. We are not becoming a walled-in, closed country. That is a good British contribution to a tremendous problem for the whole of the western world.

With no alternative policy in sight at all, this latest legal argument, which lies behind the key amendments here, is simply not a good enough reason for rejecting this policy. I do not know whether the policy will work, but we can no longer simply do nothing. To retreat into hours and hours of legalistic debate—which is very interesting, if you are interested in that kind of thing—is not rising to the occasion. Therefore, with a certain reluctance, I will yet again support the Government, which is not always my habit in this House.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I did not intend to speak, but I cannot let this opportunity to refute what has just been said by the noble Lord, Lord Clarke, go unanswered. There are alternatives. One of the real alternatives is that you have a proper process, and I am disappointed to hear the noble Lord—someone I admire and have great affection for—speak about the rule of law while forgetting what it means. It means that people must have a process to decide on whether their rights will be recognised. On asylum seekers, we have written our names at the bottom of—

[Lord Howard of Lympne (Con)]

My Lords—

[Baroness Kennedy of The Shaws (Lab)]

Let me complete a sentence. We put our names at the bottom of the refugee convention saying that we would provide asylum to people, but you need a decision-making process to decide those who are legitimate and those who might purely be economic migrants. We will deny people that due process and the rule of law. That is where I disagree so sincerely with the noble Lord, and where I say that a process has to be put in place that is speedy and effective, and that it should be allowed for.

[Lord Howard of Lympne (Con)]

I am grateful to the noble Baroness for giving way. Does she not recognise that those who apply through the legal, safe processes, and whose applications are rejected, will not still try to get to this country and will not be able to pay the people smugglers to put them on boats that cross the channel?

[Baroness Kennedy of The Shaws (Lab)]

We had a very good asylum process. Over the years of austerity, it was cut to the bone, including cuts to the number of people with the skills to assess those asylum applications. Now, the way to reverse that is to put in place, once again, good people making those assessments on the applications being made by people seeking asylum in this country and immediately, promptly, making decisions. Then, if the applications are not properly made, people can be deported to other places—but we cannot deny them due process, and that is what we are doing in this business of not letting people make an application and treating everybody the same. That is an affront to the rule of law.

Strategic Lawsuits against Public Participation

Baroness Kennedy of Shaws Excerpts

Thursday 1st December 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, in answer to my noble friend’s first point, the Solicitors Regulation Authority has already acted—and acted well—by issuing warnings to firms about the practices which characterise SLAPPs. It has instigated a thematic investigation of 20 firms thought to have been participating in this activity. As for the government answer, the Government are intending to bring forward this legislation, which will bring in caps on costs and allow for the rapid dismissal of inappropriate or insubstantial claims to foster a culture of free investigation and free speech.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, a conference has just taken place here in London about anti-SLAPP legislation. It is absolutely right, as the Minister has said, that the Solicitors Regulation Authority has issued a statement warning firms and solicitors about their support for these sorts of actions. This is about money and power. I ask the Minister whether the abuse of those kinds of injunctions and legislation will also be used to protect women who are bringing allegations against powerful men of sexual abuse in the workplace? The Philip Green case is an example of where the Telegraph was injuncted over five accusations, which were eventually exposed, and he then withdrew his claim against the women. These actions have been used against women too, so will the Government include women, and the abuse of the legal process by the powerful to silence them, in this?

[Lord Stewart of Dirleton (Con)]

My Lords, it is the privilege of the legal profession to act for the weak against the powerful. On the specific point which the noble Baroness raises, I will write to her. I can assure her and the rest of the House that the provisions against SLAPPs are intended to be drawn widely. She brings forward the important question of whether there is an imbalance against women in the steps being taken in this abusive process. I am grateful to her and will correspond with her.

Northern Ireland Protocol Bill

Baroness Kennedy of Shaws Excerpts

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Bew (CB)]

We are in political negotiations. Here is our problem; I have already explained it. When I tried to persuade the noble Lord, Lord Dodds, I said, “Just believe the British Government when they say that the Good Friday agreement is the dominant thing”. We can see now what has happened here. You only have to read the Dublin newspapers, to be frank, to realise what has had happened.

We cannot undo a negotiation that we lost. It is not the officials’ fault; the Prime Minister had lost an election and was desperate to get in and to make any kind of progress to justify her existence. You cannot undo this; I am not suggesting that it is possible. You lose, you lose—end of story, at one level. However, at another level, what it means is that the EU is committed to the Good Friday agreement, and it does not understand what it is committed to. You only have to read Michel Barnier’s memoirs to see that he has no idea about the importance of the east-west dimension and that his description of the north-south dimension is literally fantasy, which has been derisorily commented on in all sections of the Irish media.

We are bound into this agreement, but we cannot be bound into a fantasy. We have to unhook. We must have a good-faith negotiation in which we have to acknowledge the things that have gone wrong on our side and the EU has to acknowledge that the version of the Good Friday agreement it thought it had is not the real agreement. There is a strand three, for example, which talks about the importance of the east-west arrangements and so on. You can see how the original misunderstanding runs through all the texts and leads to the difficulties we are now in. To go back again to why I agree with the noble Lord, Lord Howard, we do not need to ask the EU to change its mandate. We need to ask it to understand its mandate. Its mandate is the agreement. It does not take long to read it, by the way. There is a strand three about the importance of east-west relations, although you would not know it from Michel Barnier’s memoirs. You would not know it, and you would not really know what the north-south relationship is either. So, that is one reason why this negotiation has some potential, because both sides have to come to terms with their errors in the past.

I conclude with one thing, because I have great respect for the noble Lord, Lord Hain, and what he said about Baroness Blood—as did the noble Baroness, Lady Ritchie. However, we also have to remember what other former distinguished Labour Secretaries of State said in acknowledging this difficulty. The noble Lord, Lord Mandelson—who was deeply involved in saving this process—said last week that he accepts that the Good Friday agreement and the protocol do not sit easy together; the tension is there. The noble Lord, Lord Murphy, talked about this in this Chamber as long ago as 6 December 2018. Distinguished Labour Secretaries of State know that there is a problem. The existence of the problem was not really acknowledged by the noble Baroness, Lady Chapman, earlier this afternoon.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, in all this discussion, not enough is said about the horror of what was experienced in the years leading up to the Good Friday agreement. We are forgetting that. In the language of decency in the House of Lords, we are allowing ourselves to somehow not remember the full horror of that period. That horror was rooted in inequality, a lack of rights for certain people in the community, and a strong sense that the only way towards peace was to somehow protect the rights and equalities of people in Northern Ireland. You would not have got people to the table if there had not been a very honest discussion about the pain, loss and suffering that came out of those inequalities. I can say this as somebody who did more trials involving those Troubles than probably anybody in this House.

Northern Ireland Protocol Bill

Baroness Kennedy of Shaws Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, like so many others, I oppose this Bill because it contravenes the rule of law. First, there is this flagrant breach of international law and its serious implications for our global reputation. Others have mentioned our invocation of international law when we are denouncing Putin’s conduct in relation to Ukraine. How can we—as I sought to do last night—condemn China for its conduct towards Hong Kong in breach of the Sino-British agreement, an international treaty, when we are breaking an international treaty ourselves? It is this sort of shocking conduct which I am afraid will do great damage to our reputation around the globe for law and our commitment to it.

The Government claim the defence of necessity. The noble Lord, Lord Pannick, has very effectively demolished that. There has to be grave and imminent peril, and that is not the situation here, as the history of this Bill relates.

In addition to breaching international law, this legislation also puts at risk other legal obligations. I remind the House that the protocol was designed to do more than protect economic interests; it had a number of objectives, one of which was to protect the Good Friday agreement “in all its dimensions”. The House will remember that concerns about human rights and equality have always been at the heart of the conflict in Northern Ireland, and a lot of work has gone into addressing those problems—I do not have to explain what I am referring to. As a result, we have seen the creation of important legal remedies, as well as institutions such as the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, both of which have expressed concern about this Bill.

Article 2 of the protocol provides that the UK has continuous obligations regarding human rights and equality in Northern Ireland. It provides that there shall be “no diminution of rights”. No diminution means that the people in Northern Ireland had rights before the UK left the European Union and these cannot be reduced as a result of Brexit. Rights can only stay the same or advance; they cannot regress.

As we know, Article 2 does not stand alone. It is supported by and must be interpreted in the light of other provisions of the protocol and the withdrawal agreement. In particular, there is an obligation on the United Kingdom for what is known as dynamic alignment in certain situations. That means keeping Northern Ireland up to date with developments in European Union law. Let me emphasise: protected rights in the Good Friday agreement that are underpinned by EU law may not be diminished as a result of Brexit and have to keep up with EU advances. Article 2 of the protocol gives that overarching guarantee. However, Clause 14 of this Bill provides that Article 13(3) of the protocol, which is on dynamic alignment, is to be disapplied immediately. Clause 20(2) provides that, in proceedings relating to the protocol, a court or tribunal is not to be

“bound by any principles laid down, or any decisions made … by the European Court”.

I am afraid that that does involve a departure. It is important to understand that this Bill ranges more widely than undermining only the trade and customs provisions of the protocol. The Bill presents a real danger to the protection of human rights provisions because of the powers that it gives to Ministers, which are not confined to trade. I remind the House of the law of unintended consequences. It could have serious implications for the citizens of Northern Ireland and their rights. That is yet another reason why this Bill should be abandoned.

[Lord Moylan (Con)]

My Lords, I do not want to put the noble Baroness on the spot. However, since she is speaking of rights, does she have any answer made by the noble Lord, Lord Dodds of Duncairn, that the protocol itself abridges the democratic rights of the people of Northern Ireland as guaranteed by the UN declaration and the European convention in the making of their own laws?

[Baroness Kennedy of The Shaws (Lab)]

I agree with the noble Lord, Lord Dodds, that the Bill is ill-conceived and does not consider the ways in which the overlapping provisions create real difficulties for the democratic rights of the people of Northern Ireland.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Kennedy of Shaws Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Lord Dubs (Lab) [V]]

My Lords, I remind the Committee again of my membership of the Joint Committee on Human Rights and the fact that the amendments in this group stem from the committee’s report, published some time ago, looking into the overall workings of the Bill.

There is widespread agreement that there should be oversight of criminal conduct authorisations. However, there is a dispute over whether that oversight should take place after or before the event. The point of the amendment is that there should be a requirement for prior judicial approval of such authorisations, with a possible provision for urgent cases in exceptional circumstances. The Bill does not provide for any independent scrutiny of criminal conduct authorisations before they are made and acted upon. There is the possibility of a review of such authorisations through the Investigatory Powers Commissioner but that would be after the event, by which time it is too late to influence whether an authorisation should have been granted. Nor does the Bill provide for the IPC to be informed of authorisations at the time they are made so that proper scrutiny can take place. That is surely the nub of the matter. Under the Bill, there would be no chance to look at authorisations until some time after the event.

The Joint Committee on Human Rights report stated that the lack of prior independent scrutiny for CCAs under the Bill stands in marked contrast to the procedures in place for other investigative functions such as police search warrants and phone tapping. That was mentioned at Second Reading. The noble Lord, Lord Macdonald, a former Director of Public Prosecutions, has stated:

“Under this bill it will be easier for a police officer to commit a serious crime than to tap a phone or search a shed.”


That is a pretty powerful statement. The powers of oversight are not proportionate to what is at stake, which is much more crucial than deciding whether the police can tap a phone or search a shed, important as those things are.

I should like to give a number of examples. If we had had oversight before the event, certain procedures would not have been followed. The most obvious was in Northern Ireland in relation to the death of Patrick Finucane and looked at in a report by Sir Desmond de Silva QC. He made a number of important points about the need for proper scrutiny of the powers being exercised, which would be exercised more freely, I contend, under the Bill. He said in his report:

“It is essential that the involvement of agents in serious criminal offences can always be reviewed and investigated and that allegations of collusion with terrorist groups are rigorously pursued.”


He did not quite say that that should happen before the event, but I contend that if it had been possible to do so, the tragic death of Patrick Finucane might not have happened and things would have been stopped in their tracks. Sir Desmond made some powerful conclusions that are entirely consistent with the requirements of human rights law. I will not quote all his comments, but the key question asked by the JCHR report is:

“Does the Bill provide the rigorous framework of oversight and accountability necessary to safeguard against abuse of the exceptional power to authorise criminal conduct?”


The committee also received evidence from the human rights organisation, Justice, which described the Bill as being,

“extremely limited in its oversight mechanisms”

and summarised its safeguards as “woefully inadequate”.

We all know about the tragic racist murder of Stephen Lawrence. The Lawrence family was apparently kept under surveillance afterwards. I contend that if there had been a proper system of oversight before that type of surveillance was exercised, it would not have been allowed and would have been stopped in its tracks, yet it went unheeded. I fear that anything similar would not be stopped by the safeguards in the Bill because they are woefully inadequate, as Justice said.

The third group of surveillance victims would be trade unions and other active organisations. We know that trade unions and environmental groups have been kept under surveillance. Those things would not have happened if such an amendment had been in place. It seems perfectly reasonable to require the tightest oversight of such extreme powers in a democracy—they are not minor powers—before the event. If something is being authorised that should not be, we would have at least one layer of safeguard to stop it going any further.

Amendment 59 is a let-out, providing that urgent CCAs can be granted without prior approval but must be confirmed by a judicial commissioner within 48 hours of being granted or they will cease to be valid. These powers would be applied only when there is an urgent case.

It is clear that whereas we all agree on oversight, what really matters is oversight before the event. The Bill must be amended to include a mechanism for prior judicial approval of CCAs in order to safeguard the human rights that we all believe in. I beg to move.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, by and large, I endorse what my noble friend Lord Dubs said. It is right that there need to be greater safeguards than there are in the Bill, which are not sufficient. Having public bodies essentially authorise themselves to conduct surveillance and undercover operations is unsatisfactory.

Criminal conduct authorisations are particularly invasive and warrant more scrutiny. The lack of scrutiny could be remedied by introducing approval from a judicial commissioner. This is where I am refining what my noble friend is asking for. I should declare that I am the president of Justice, which has carried out a significant amount of work on this issue and is the organisation that brings the legal profession’s expertise to it. It is suggested that there is already a cohort of very experienced judges who are used to dealing with difficult, sensitive material, as there would be in these cases.

We recommend that there should be judicial commissioners who are expert judges, senior in the profession, experienced in making quick decisions on sensitive material and—I say this in relation to the urgency issues so that my noble friend Lord Dubs can take that off the table—are available 24/7 when necessary. It is a bit like the need for judges to be on call for injunctions: if something comes up and there is a need for urgency they can deal with that because they have the expertise to sift difficult material and make complex decisions. It is important to emphasise that they are already part of the Investigatory Powers Commissioner’s Office. There is no reason why they cannot adapt. Judges are eminently adaptable, especially when they are of this seniority and experience, where they can do it as a prior scrutiny operation. They are used to dealing with these types of difficult operations and they are not junior members of the judiciary. I am anxious that my noble friend’s suggestions might lead to rather low-level judges overseeing this. They tend to be more inclined to accept things that the police and security services say to them.

For those reasons, I make the plea that the Government look at judicial commissioners as the appropriate place for creating some kind of proper scrutiny. Unfortunately, the Government are currently saying that there is no need for authorisation from a judge or judicial commissioner by way of a warrant, nor approval by the Secretary of State. The flaw in all this is that they are saying that it is enough, as the main safeguard against a public body carrying out unjustified surveillance or inappropriate undercover operations, for a senior official in their own organisation to authorise it. I am afraid that is marking your own homework. Even the most diligent official can struggle to be objective under pressure, particularly if their organisation has to meet targets or achieve certain results because of public demand at a particular time. We sometimes see that in relation to things such as terrorism.

The pre-existing safeguards in the present RIPA regime are already insufficient for the creation of undercover agent operations. Judicial approval is all the more necessary for the exercise of this new power. The Government claim that prior judicial authorisation is not necessary. James Brokenshire MP, the Minister for Security, only last month said in the House of Commons:

“The use of CHIS requires deep expertise and close consideration of the personal qualities”


of that particular undercover operation,

“which then enables very precise and safe tasking.”—[Official Report, Commons, 5/10/20; col. 662.]

I am sure that that is true, but this argument, which prioritises operational need over independent assessment, is not convincing. There is a significant difference between authorising passive undercover observation and proactive criminal conduct.

Our former Director of Public Prosecutions, the noble Lord, Lord Macdonald, has been quoted already. He agrees with me and my noble friend Lord Dubs that there has to be much better scrutiny. He would actually go further than my noble friend and thinks that it has to be at a high level. He says:

“There is no comfort in allowing senior figures in the police or the intelligence agencies the power to sanction lawbreaking, without the need to first obtain independent warrants from judges or some other”


judicial “authority”.

The benefits of judicial authorisation are further detailed in the case of Szabó and Vissy v Hungary, where the court held that it offers the best guarantees of independence, impartiality and a proper procedure. It is particularly pertinent in the case of surveillance, which is, to quote from that case,

“a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society”.

The quote concludes that

“it is in principle desirable to entrust supervisory control to a judge”.

Such scrutiny could be highly compelling for the potential use of CCAs.