Safety of Rwanda (Asylum and Immigration) Bill

Jeremy Wright Excerpts

2nd reading
Tuesday 12th December 2023 Commons Chamber

[James Cleverly]

I am going to make some progress.

A few weeks ago, the Supreme Court upheld the judgment of the Court of Appeal, meaning that we cannot yet lawfully remove people to Rwanda. That is because of concerns that it expressed that relocated individuals might be refouled. I am sure the House knows that that means that those individuals might be re-deported to a third country. The Government disagreed with that verdict, but, as I have said, we respect the verdict of their lordships. It is important to understand that the Supreme Court’s judgment was based on the facts as they existed 18 months ago and that the Court said the problem could be remedied. As I told the House last week, we have worked on and found that very remedy. Our asylum partnership with Rwanda sets out, in a legally binding international treaty, the obligations of both the UK and Rwanda within international law.

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

I am extremely grateful to my right hon. Friend for giving way. As he says, international law and domestic law are both important, but they are different. The Bill seeks to give this House the power to deem Rwanda a safe country. Can he confirm for me that what it does not seek to do is suggest that this country, or this House, has the power to deem itself in compliance with international law? My worry stems from clause1(5) of the Bill, which, of course, reflects the Government’s intention to deem Rwanda a safe country, but then goes on to describe the safe country as one

“to which persons may be removed…in compliance with all of the United Kingdom’s obligations under international law”.

Will he confirm that it is not the Government’s intention to suggest that it falls to any country to deem itself in compliance with international law—he does not need me to explain what the consequences of that might be elsewhere in the world—and that he will look again at the language and whether it needs to be changed to clarify that point?

[James Cleverly]

I can reassure my right hon. and learned Friend that that is absolutely not the intention of the Bill. The deeming clause is specifically about the safety of Rwanda, because of our response to their lordships’ position at the Supreme Court hearing. We are not seeking to redefine through domestic legislation international law.

Safety of Rwanda (Asylum and Immigration) Bill

Jeremy Wright Excerpts

Committee of the whole House
Wednesday 17th January 2024 Commons Chamber

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

It may be helpful if I clarify a few things. First, if colleagues wish to intervene, it is important that they are present from the start of the relevant speech. It is also important that they remain to the end of the speech.

Secondly, I intend to give priority to those who have amendments down on the selection list—I will then come to others. In addition to the fact that we are discussing amendments, I should explain that, because we are also discussing clause stand part, the debate can range slightly more widely than would be normal, but it is not a Third Reading debate. There will be a Third Reading debate—an hour has been put aside for that—just in case colleagues prefer to speak at that stage. I know that Sir Jeremy Wright has an amendment, so I call him to speak.

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

Thank you, Dame Rosie. In fact I have two amendments—amendments 54 and 55—on which I wish to focus my remarks. We all understand that the purpose of the Bill is to allow this Parliament to designate Rwanda as a safe country so that people can be removed to it lawfully. In order to achieve that, of course, we require a definition of what a safe country is. The Bill does that in clause 1(5)(a), which describes a safe country as

“a country to which persons may be removed from the United Kingdom”.

So far, so good. It seems to me that that is an essential part of the Bill’s inherent purpose.

The part of that subsection (a) that concerns me, and on which my amendment is focused, is where it says that that is

“in compliance with all of the United Kingdom’s obligations under international law that are relevant to the treatment in that country of persons who are removed there”.

In other words, the Bill seems to say that the United Kingdom, by saying that Rwanda is a safe country, can also deem itself to be in compliance with a set of its international law responsibilities. I do not think that can be correct.

--- Later in debate ---

[Sir John Hayes]

I work closely with my right hon. and learned Friend in a number of ways, as he knows, and I am well aware that he is a former Attorney General. If he were right that it is not for the Government or this House to determine whether measures are compliant, why on earth would they seek and get the Attorney General’s advice on just that?

[Sir Jeremy Wright]

My right hon. Friend knows that the Attorney General is consulted on a variety of different legal questions, both domestic and international. He would not expect me to disclose any of the advice I have previously given, but I can tell him that the Attorney General does give advice on whether the Government’s actions may or may not be in compliance with international law, but neither the Attorney General, nor, I think the Government, expects to be the ultimate arbiter of that question. The advice is given as to whether it is likely that that action would be in compliance with the law. I will come in a moment to what I think the Bill and the Government can properly do in relation to international law responsibilities, but it seems to me that what they cannot properly do is set themselves up as judge in their own cause on questions of international law. This House would be wrong to pass a Bill that suggested that they could. That is really where my amendments are focused.

As I say, there is a good practical reason why we should be nervous about this: because we do sometimes rely on international law to discharge our own policy intents and purposes. Not more than 48 hours ago in this place, we were doing exactly that. We were saying that it is important to criticise the actions of the Houthis in the Red sea because they contravene principles of international law. We were saying too that we justify our own response to that because it is in accordance with the principles of international law, and quite right, too. We would not have accepted the Houthis’ unilateral declaration that they were in compliance with international law when they did what they did, nor should we have, and we would not of course accept a Russian legislative Act to say that the invasion of Ukraine by Russia was in compliance with Russia’s international law responsibilities.

Let me make it clear that I am not, of course, suggesting that what the Government have in mind here is in any way comparable to those two examples, but it seems that the point here is that to arrogate to oneself the right to declare one’s own compliance with international law runs the risk of, first, other states finding comfort in our example and, secondly, undermining our own messages in other situations. That makes this not just bad law, but bad foreign policy.

[Stella Creasy]

I am pleased to hear what the right hon. and learned Gentleman has to say on the question of international law. Does he share my concern—and I fully accept that I am not as legally qualified as him—that the Government’s own legal advice says that by stating that the Bill is incompatible, it makes it compatible? Is that not worthy of the mad March Hare when it comes to consistency in standing up for the rule of law?

[Sir Jeremy Wright]

I suspect that what the hon. Lady is referring to is the statement of incompatibility with the convention on human rights and the Human Rights Act 1998 at the beginning of the Bill. Of course, that provision is there for a reason: to allow the Government, if they so choose, to act in defiance of those responsibilities. That is perfectly proper, and I will come on to explain why I think that is something the Government can properly do.

I am concerned about something a little different. Instead of saying, “We don’t think this is in compliance with international law, but we’re going to do it anyway.”, the Bill is saying, “We think this is in compliance with international law; it is down to us to decide that, and we have so decided.” That feels to me like something that we could not and should not do. It would be concerning enough, in my judgment, if this Bill only tried to deem the UK’s compliance with international law, but it also seems to say that we can deem Rwanda’s compliance with international law.

That is set out in clause 1(5)(b), which goes on to say that, for the purposes of this Act, a safe country includes, in particular, a country

“from which a person removed to that country will not be removed or sent to another country”.

So far so good; that is essential, to me, to doing what the Bill seeks to achieve. However, it goes on to say,

“in contravention of any international law”.

Again, it cannot lie in the hands of this Parliament to decide whether or not a person may be removed to another country in contravention of any international law. It goes on in sub-paragraph (b)(ii) to say that a country would be a safe country

“in which any person who is seeking asylum or who has had an asylum determination will both have their claim determined and be treated in accordance with that country’s obligations under international law.”

It seems to me that the Bill is seeking to say that, if we deem it so, not only is the UK in compliance with its international law responsibilities, but Rwanda is going to be as well. That feels to me not valid and somewhat over-ambitious.

[Sir William Cash]

Does my right hon. and learned Friend, who has great experience as a former Attorney General, agree that the deeming provisions under the European Union (Withdrawal) Act 2018 create a rather similar situation, because we deemed EU law to be UK law? Therefore, on the analogy he has just given, I imagine he would argue—though I think he might even have been Attorney General at that time—that that did exactly the same sort of thing, although I am listening with great interest to the more precise point he is making about the relationship with international obligations, on which I will speak later.

[Sir Jeremy Wright]

I am grateful to my hon. Friend for his intervention. I know, Dame Rosie, you would not want me to abuse the privilege you have given us to range slightly more widely in this debate to range quite that widely, so I will not. He is right that I am making a fairly precise point about what this language appears to me to say. I stress that I do not think it is necessary to include this language in order to achieve the objective that the Government have set in this legislation—with which I have some sympathy, although their methods make me nervous, and I make no bones about that. Worse than unnecessary, it presents some dangers that I do not think we need to present in order to achieve the Government’s objectives.

I suspect my hon. and learned Friend the Minister will tell me in a few moments’ or hours’ time that I do not need to worry about any of this. He may give two reasons for that. First, he may say that the Bill does not mean what I think it means. You will forgive me for saying this, Dame Rosie, but I am increasingly troubled that in this place we answer points such as mine by saying, “Yes, well, it doesn’t really mean that, and we don’t really mean that by it.” We should be concerned as legislators with what the language we are passing into law actually says, not what we meant to say. I am concerned that what this language says is not in accordance with what I am sure the Minister wants to do or what the Government want to do, but it might none the less have that effect, or be taken by others to mean the things that I am concerned about.

When the Bill says what a safe country is, it is potentially confusing two different things. One is deeming our own compliance with international law, which I do not think any country should be able to do, and the other is saying that Parliament resolves to do something even if it contravenes the UK’s international law obligations, which, going back to the previous intervention by the hon. Member for Walthamstow (Stella Creasy), I do think the British Parliament can do. We as a legislature can resolve to do that if we so choose.

We have to decide whether that is a wise and sensible thing to do, with all the ramifications it might bring, but as a matter of law it seems to me that the UK Parliament can, if it wishes, pass a law to say, “Despite or irrespective of our international responsibilities, this is none the less what we want to do.” That is not the same as deeming our own compliance with international law, which I worry this language almost certainly seems to do.

The point I make about the UK Parliament being able to do things even when they contravene its international responsibilities is already in the Bill and reflected in the language of clause 1(4)(b), which points out that

“the validity of an Act is unaffected by international law.”

Quite right. We can, if we so choose, deem a country a safe country for the purposes of domestic decision making if we want to. What I do not think we can or should do is legislate to say that we comply with our international law responsibilities when we do not—and when, crucially, to achieve the objective of this Bill we do not need to.

The second reason the Minister may give for why I do not need to worry myself about all this is that he may say that domestic and international law exist on different planes, and that this legislation is only targeted in any event at domestic authorities, so the Bill could not, even if it chose to try, deem our compliance with international law in actual fact. I would agree with that. It is perfectly true that domestic law and international law operate on different planes, and it is not likely that this Bill could determine any question of international law before any international tribunal.

If that is so, though, why include the language? If it does not have any meaning or legal effect, it does not serve any purpose, but I fear it may send a damaging political signal to other states. The language I am concerned about, which amendments 54 and 55 would remove, is either offensive or otiose, and in either respect the Bill would be better without it.

[Joanna Cherry]

It is a pleasure to follow the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright). I find myself in agreement with much of what he said, and he made his points very forcefully.

I rise to speak to amendments 32, 33 and 34 and new clause 4 in my name and amendments 4 and 5 in the name of my hon. Friend the Member for Glasgow North (Patrick Grady), and to support the amendments in the name of my hon. Friend the Member for Glasgow Central (Alison Thewliss). I also want to comment on clause 3 and clause 5 stand part and the amendments that have been put forward, particularly by the right hon. Member for Newark (Robert Jenrick), in my capacity as Chair of the Joint Committee on Human Rights.

I turn first to my amendments, which relate to the impact of this Bill in Scotland, and in which respect I am speaking in a personal capacity. My amendments and those of my hon. Friend the Member for Glasgow North deal with the extent of the Bill, its extension to Scotland and the date of its commencement in Scotland. We both seek to prevent this Bill’s extending to Scotland and, in the event that we are not successful in doing that, my amendments seek to ensure that the Bill will not extend to Scotland without the legislative consent of the Scottish Parliament and that nothing in it will interfere with the supervisory jurisdiction of the Court of Session or its nobile officium. I will explain what that means later.

We must not forget that the regime this Bill seeks to impose, together with the Illegal Migration Act 2023, is imposed on asylum seekers across the United Kingdom, not just those who arrive in small boats on the Kent coast. The UK Government have not forgotten that, and that is why they want this Bill, with its far-reaching and unprecedented ouster clauses, to extend to Scotland. Accordingly, asylum seekers in Scotland looking to our courts for protection will find that the courts in Scotland have been emasculated in the same way as this Bill emasculates the courts of England and Wales.

As well as having their jurisdiction ousted on certain matters of fact, as was debated yesterday, the Scottish courts will find themselves unable to apply the Human Rights Act or to respect the United Kingdom’s obligations under the European convention on human rights and other international treaties. I believe that that constitutes a serious and unprecedented intrusion on the jurisdiction of the Scottish courts, and a serious interference with the separation of powers between legislature, Executive and judiciary. I do not think that this Parliament should be rubber-stamping the Bill at all, but particularly not in relation to Scotland.

--- Later in debate ---

[Sir Robert Neill]

That is why, as it happens, I will not vote against this Bill, because although I have some misgivings, there is a legitimate concern that needs to be dealt with in relation to illegal boats. However, the simple fact is that that is not a reason for the blanket derogation, or the blanket removal of ECHR protections, that is proposed in a series of amendments. That is the difference. My hon. Friend and I are at one, but sometimes a mixture of politics and law arises in these matters. The point I am making is that, frankly, if any Government want to take the political risk of ignoring an interim measure, they can do so under our law as it stands. It happens that they effectively did so on prisoner voting, so they could do that now if they wanted to. I am not going to advise on that, because one has to be very wary not to come to views that may very often not be fact-specific when individual decisions are made.

[Sir Jeremy Wright]

I do not want to prolong the discussion about prisoner voting, but like my hon. Friend the Member for Stone (Sir William Cash), I remember having conversations about it inside Government. I think it would be fairer to describe the situation as one in which the UK did not at any point refuse to comply with the judgment, would it not? We have perhaps adopted a more Augustinian approach to compliance: we just have not quite got around to it yet.

[Sir Robert Neill]

I think that is right. As I recall, the UK Government put a motion before this House, which the House rejected. So we had a perfectly legitimate legal argument that we had taken steps to comply, and Parliament, as it was entitled to, decided otherwise. That is why the whole of my argument with the amendments from my right hon. Friend the Member for Newark is that they are an Aunt Sally—a complete red herring compared with the real issues we are concerned with—and I urge hon. Members on both sides of the Committee to reject them.

Finally, I had misgivings about this Bill, and I spoke about that on Second Reading. I said that it stayed acceptable—just—and I maintain that position. My right hon. Friend quoted the noble Lord Sandhurst, a very distinguished lawyer in the other place. I should say that he is a personal friend of mine. The noble Lord Sandhurst is chair of the research committee of the Society of Conservative Lawyers, and I happen to chair the executive committee of the society. Lord Sandhurst and Harry Gillow, a fellow member of the society, published a very useful pamphlet about the impact of this Bill, and they have updated it in the light of these amendments. Their conclusion, with respect, is that

“the Bill goes as far as reasonably possible without risking collapse of the Rwanda scheme as a whole”.

They go on to say in their pamphlet that the Bill as drafted represents the best chance of success for the migration and economic development partnership with Rwanda. So they are on the same side of the argument as me and say that the amendments proposed by my right hon. Friend the Member for Newark take it over the line in terms of being able to deliver the partnership scheme and risk collapsing the whole scheme. It was ironic that my right hon. Friend talked about blowing up the Bill because the truth is that his amendments will blow up the deal with Rwanda, because the Rwandans have made it abundantly clear that anything that breaches international law will be unacceptable to them and they would withdraw from the agreement.

--- Later in debate ---

[Sir Robert Buckland]

I spoke yesterday to the amendments that stand in my name and are potentially subject to Division later, so I will not trouble the Committee on that. My amendment 58 would amend clause 7 to preserve a small element of clause 1—namely, the definition of a safe country. I listened carefully to the reasoned arguments of my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright), whose position is similar to mine, except that he takes exception to parts of clause 1 that I want to retain. I would rather get rid of the rest of clause 1, because it is bad lawmaking, but I will come back to that in a moment.

I might have an answer to my right hon. and learned Friend’s sensible question of why the definition of a safe country in clause 1(5)(b)(ii) contains reference to the other country’s “obligations under international law.” It is simple: that has to flow, because unlike many people’s understanding of this scheme, it is not about the offshoring of UK processing, but the wholesale handing to another country of the determination of applications. That is why the measure is in the Bill. I hope that gives him some satisfaction. It is why, in considering my amendments, I decided to retain the entirety of subparagraph (ii) by moving it to the interpretive clauses towards the back end of the Bill. It was the only part of clause 1 that I could see had any function whatsoever.

[Sir Jeremy Wright]

I understand the argument that my right hon. and learned Friend is making, and I will not be dogmatic about the approach that I set out earlier. Is there not a danger, if we retain the language that he is referring to, that we open up another channel of legal challenge, which is exactly what the Government are seeking to avoid? If the question becomes, “Is Rwanda in compliance with its international law responsibilities?”, that is something else that someone may choose to argue if they wish to resist their transfer to Rwanda.

[Sir Robert Buckland]

My right hon. and learned Friend is absolutely right. I think I have said outside the Chamber that, when it comes to the passage of statute, the principle of “less is more” is not only fundamentally Conservative, but fundamental to good lawmaking. Although the Bill does not weigh in at a heavy number of clauses—it has a mere 10—we as parliamentarians have a continuing duty to demonstrate economy. Any clause—in this case, clause 1—that is titled “Introduction” should give us all pause for thought, if not breaking out into a cold sweat.

It seems to me that the language in clauses 1 to 6 would belong better in a White Paper or an accompanying policy document. We know what the purpose of the Bill is. We have read the treaty, and most of us will have read the policy document that accompanied the Bill’s publication—that is where such language belongs, not in a Bill. That is not just because I have a tidy and ordered mind—well, I try—but because of the very point made by my right hon. and learned Friend: the more words we put into legislation, the more opportunity we give for their litigation and justiciability, and the arguments that will then go before the court about fundamental issues at a high level that, in my view, really should not be the province of litigation.

It is for the contracting parties to a treaty to agree its terms and sign the document, and then either directly, as in the case of Rwanda or, in our dualist system, via the Constitutional Reform and Governance Act 2010—the CRaG procedure that is ongoing—the treaty will come into force. So, to use one of my favourite wartime adages, I must ask my hon. and learned Friend the Minister, for whom I have great esteem: why is our journey really necessary?

In my view, clause 1 needs to go, save for the retention of clause 5. Although we will have a stand-part vote anyway, I tabled amendment 27 just to emphasise my extreme distaste for clause 1. It is a distaste based on the fear that this somehow becomes the norm and we start to see legislation of this nature proliferate. Let us start with clause 2, because that is what the Bill is all about: the safety of the Republic of Rwanda. That is where it should begin. What clause 2 says is clear, and I spoke to it yesterday.

I turn now to clause 3, which throws up a series of interesting questions. I am not a particular fan of section 3 of the Human Rights Act, because I never liked the read-down provisions, which draw the justices—the Court of Appeal and the Supreme Court in particular—into a province where they are acting almost as a constitutional court. We have seen it happen: the read-down provisions where judges in effect pass and reinterpret the will of Parliament. It is a sticky and dangerous place for the Court to go, and I do not like it. If I had had the opportunity and we had done what we said we would do in the manifesto, which I helped to write, we would have updated the Human Rights Act by now. We could have got rid of section 3, so we would not have needed to refer to it in this ad hoc way in the Bill. It was a horrible echo of that Bill of Rights, which happily never saw the light of day—it did not even have a Second Reading, thank goodness—and perhaps some of what I am saying in the context of these amendments and the stand part debates is an echo of my deep distaste for aspects of that failed legislation.

Why have we got clause 3 in the Bill? I can see what the Government want to do—they want to avoid arguments relating to the Human Rights Act—but I am afraid that they cannot get out of jail. As people have an individual right to petition to Strasbourg anyway—I entirely agree with my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) that we helped to set up that Court and have direct ownership of it—we are in effect sending the arguments to that so-called foreign Court. Of course, the danger in allowing petitions to go to Strasbourg without any airing of the arguments in domestic courts is that we do not really get that margin of appreciation evidence that is so crucial for the Strasbourg Court.

I do get frustrated by inelegant, inaccurate comparisons between the Luxembourg Court—the Court of Justice of the European Union—and the Strasbourg Court, which is a very different place. We have a much wider margin of appreciation, much bigger discretion and much more room in which to make arguments of interpretation and context—indeed, political context as well—about the way in which we do things in this country. Perhaps it is no coincidence that the number of times the United Kingdom is found to be in breach of the convention is vanishingly small.

We have heard about prisoner rights—more cases, anybody? We might remember the Abu Qatada case, which is on all fours with what we are dealing with here. We solved the problem by making sure that Jordan had a fair trial system. If I am right, I think Abu Qatada was tried and acquitted in Jordan, but the point was made. That is the point on all fours with this Bill: if we are to rely on the processes of another country, getting them right in order to be compliant seems to be the best way forward. That is why the Government’s treaty approach is to be commended. So, no, I do not see the need for clause 3—get rid of it. We will end up with these arguments whether we like it or not.

I turn to clause 5, which is another clause that, in the words of my hon. Friends, is just unnecessary. I do not see how interim measures equate in any way to the binding nature of final judgments, which article 46 of the convention draws us to, or indeed anything different from the approach that we take to interim injunctions in domestic cases that High Court judges, county court judges—judges of all shapes and sizes—will be enjoined to create or refuse on ex parte or inter partes applications.

In the context of the debate about interim measures, it is important to pray in aid the work done in the plenary sessions of the European Court of Human Rights last year. The rules will be changed, with that coming into effect in 2024. May I ask my hon. and learned Friend the Minister to work with colleagues in the Attorney General’s Office—his former Department—and indeed the Lord Chancellor, to ensure that the Council of Europe and the plenary sessions of the Court get on with implementing these changes? The changes to interim measures are really important.

First, the limiting of the granting of interim measures to “exceptional circumstances”—those words do not currently exist in the definition of rule 39—will change the ball game at a stroke. Secondly, there is the end to anonymity for judges, which is a proposal that will be enacted. Finally, and importantly, there is the opportunity for parties to the proceedings to request the court to reconsider its decision. So the United Kingdom will have an opportunity to say, “No, there is no imminent risk of irreparable damage here. We can fly people back from Rwanda if there is a problem.” In any event, because of the measures that we are taking in the Bill, we will not be sending people who are vulnerable or at risk—those who might be terminally ill, pregnant or have some serious condition, whatever it might be—to Rwanda in the first place. We have got the arguments to deal with rule 39 and we should have the self-confidence and the ability to make our case. I think that the reforms to rule 39 will be significant.

I am delighted to have followed the hon. Member for Belfast East (Gavin Robinson), who made a thoughtful contribution. He and I have had some differences of opinion about things in recent days, but he always couches his arguments in a respectful way, and for that I thank him.

Safety of Rwanda (Asylum and Immigration) Bill

Jeremy Wright Excerpts

Consideration of Lords amendments
Monday 18th March 2024 Commons Chamber

[Mr Deputy Speaker (Sir Roger Gale)]

Order. The Government and Opposition Front Benchers have, perhaps understandably, taken a certain amount of leeway in a broad-brush approach to the debate. Before we proceed, I remind Back Benchers that we are now debating Lords amendments; this is not a Second Reading debate. I call Sir Jeremy Wright.

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

Thank you very much indeed, Mr Deputy Speaker. May I begin with an apology to you and others for the fact that I will not be in the Chamber for some part of the debate because of other parliamentary business that I have to attend?

I start my remarks by recalling that the fundamental purpose of the Bill is to locate with Parliament—rather than with decision makers in individual cases or with courts reviewing those cases—the decision on whether Rwanda is a safe country to send people to. A number of the amendments before us would undermine that fundamental purpose by transferring decisions on that question away from Parliament and back to the caseworkers and courts, so they are, I am afraid, wrecking amendments. They are incredibly elegant wrecking amendments, and they come from an honourable and fundamental opposition to the purpose of the Bill—an opposition that I entirely understand.

I confess that I did not find voting for this legislation a comfortable choice. It comes very close to the line on rule-of-law acceptability, but in my view stays just the right side of it. Crucially, it asserts parliamentary sovereignty on an issue of huge political significance, where that issue is central to the delivery of a key Government policy. That significant and central issue is whether the Government of the day are entitled to pursue a policy on illegal immigration that contains an element of effective deterrence, and I think the Government must be able to do that. For a deterrent to be effective, it must be clear. To economic migrants seeking to reach the UK under cover of our asylum system, the deterrent is that they might end up in a different country—in this case, Rwanda. For that deterrent to be meaningful, the prospect of transfer to Rwanda must be a real one that it is not easy to evade, which means that the headline judgment on Rwanda’s safety must be clear to all, subject of course, as it should be, only to persuasive individual circumstances.

I think that approach is worthy of support for two reasons. First, illegal migration is a huge problem, and the Government must be able to pursue innovative solutions to it, especially in the absence of credible alternatives.

[Dr Luke Evans]

My right hon. and learned Friend is making an excellent point about how we must be innovative. Is that not the reason why other countries are looking at what the UK is doing? The likes of Austria, Germany and Italy have all talked about using third nations because there needs to be a solution to the problem, as he is so eloquently setting out.

[Sir Jeremy Wright]

I am conscious, Mr Deputy Speaker, not to transgress into Second Reading territory, but I think my hon. Friend is right about that. as our right hon. and learned Friend the Minister has pointed out, other international agencies also make use of Rwanda for these purposes.

Secondly, Parliament is as able as any other body to make judgments about the safety of Rwanda. I am grateful for the information with which we have been provided, including the country information note that was referred to earlier in the debate, which in my view supports the conclusion that Rwanda is safe for the purposes of the Bill. But Parliament’s decision making on the safety of Rwanda must have integrity not just for now, but for the future. I am, I have to say, troubled by what I might describe as the absolutist, if not the eternalist nature of the wording of the Bill, which says that Rwanda is safe and must be taken as such for a variety of purposes, and Parliament’s judgment on that will stand, as far as I can see, until new legislation is passed.

That is why the noble Lord Hope’s amendments—Lords amendments 2 and 3—are interesting, although I cannot support them as they essentially transfer authority to the treaty’s monitoring committee to determine whether Rwanda remains a safe country, based on compliance or otherwise with the treaty. That cannot be right, as the Bill is intended specifically to give Parliament that authority, and Parliament should, in theory at least, retain the option to consider breaches of the treaty and nevertheless conclude that Rwanda remains a safe country for the purposes of the Bill.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

My right hon. and learned Friend makes a very powerful point, with which I have much sympathy. Between now and future stages of the Bill, could the Government not think about how they can reconcile that with the legitimate concerns expressed in Lord Hope’s amendments, which I think are fair and honest? Facts change, and if Parliament sets itself up as an arbiter and decider on fact, it must have a means of changing its decision if the facts change, just as anything else would. I say to the Minister that Keynes comes to mind. Can we find a way forward?

[Sir Jeremy Wright]

My hon. and learned Friend anticipates my conclusion, and I agree with him entirely. In fact, he agrees with me entirely, in advance.

[Mrs Elphicke]

In light of what my right hon. and learned Friend says, how does he see Parliament’s role in assessing any future breaches of the treaty?

[Sir Jeremy Wright]

Essentially, Lords amendments 2 and 3—flawed as they are—raise the valid issue of what happens if Rwanda at any point falls below the standards expected of it to justify its safe country status. The Bill would establish in legislation the largely unchallengeable conclusion that Rwanda is a safe country for the purposes of the Bill because Parliament says so, without any mechanism for Parliament to say differently if the facts change—save, presumably, for fresh primary legislation.

[Yasmin Qureshi]

I see two contradictions, almost, in what the right hon. and learned Gentleman is saying. He talks about the sovereignty of Parliament and whether Rwanda being designated as safe can be changed, but our Supreme Court, the highest court in the land, said after reading all the evidence that Rwanda was not safe. Yes, Parliament is sovereign but it has become almost a dictatorship because this is a bit like saying “Person A was found guilty in a criminal court but because we in Parliament do not like that, that person must be returned to court and be sentenced.” That uses parliamentary sovereignty in a most nonsensical way.

[Sir Jeremy Wright]

I am afraid I do not accept what the hon. Lady says. First, as the Minister made clear, the Government have not ignored the conclusions of the Supreme Court, which we must remind ourselves were made in 2022: they have responded to those concerns and new information is now available for Parliament to consider. My point is that this is, on the Government’s invitation, for Parliament to decide. It is for Parliament to determine whether we consider that Rwanda is, on the evidence available to us, a safe country. We may all reach different conclusions about that but the premise of this legislation is that, taking into account the concerns the Supreme Court has expressed, it is none the less for Parliament to determine whether Rwanda is a safe country for the purposes of the legislation. But it is simply not sensible for Parliament not to be able to say differently, save through primary legislation, if the facts were to change. We all hope, perhaps expect, that Rwanda will remain a safe place for migrants to go, but if we could guarantee that indefinitely we would not need the treaty the Government worked so hard to secure or the monitoring committee designed to scrutinise compliance with it.

Although the Government are entitled to reject the amendments, they should give some thought to the situation of the Bill, because it breaks new ground by giving Parliament specific authority over a judgment that will bind many but that Parliament cannot easily revise even if it comes to believe that revision is necessary. The treaty and the monitoring of its terms provide a mechanism for Parliament to be alerted to significant changes in compliance, and I ask my right hon. and learned Friend the Minister and his colleagues in the other place to consider how Parliament might be given further scope to engage with that judgment if the need arises. I do appreciate that the Government retain means by which they can revise their judgment of the safety of Rwanda, but the Bill clearly and deliberately transfers the judgment on safety to Parliament. If it is a judgment in Parliament’s name, it must be right for Parliament to retain the capacity to reconsider and if necessary revise it.

[Alison Thewliss (Glasgow Central) (SNP)]

It remains the position of the Scottish National party that this is an irredeemably awful Bill. We do not support the Rwanda plan; we think it is both an offence to humanity and an egregious waste of public money, particularly at a time when many of our constituents are struggling to feed themselves. I thank the Lords for their work on the Bill and for at least trying to make it in some way better, and we would support all the Lords amendments and what they attempt to do with the Bill.

Lord Coaker’s Lords amendment 1 would add a measure to comply with domestic and international law. That should be basic; any legislation in this place should abide by domestic and international law. It seems ludicrous that we have a Bill before us that does not abide by international and domestic law. It is a bit of a cheek for the Minister to talk about Rwanda abiding by treaties and its loyalties while at the same time the Tories go about the business of undermining the UK’s own international commitments in international agreements that we helped to draft. The European convention on human rights, the refugee convention, the international covenant on civil and political rights and the Council of Europe convention on action against trafficking in human beings, as well as customary international law and domestic laws, are all things we have created here that the Government have set about undermining. It is absolutely ludicrous. It brings into question the Government’s commitment to international agreements, and particularly the European convention on human rights, which underpins so much. We have heard from Members about the significance of some of the legislation to the Good Friday agreement and Scotland’s devolution settlement. The Government see fit to undermine all that through their actions.

--- Later in debate ---

[Sir Robert Buckland (South Swindon) (Con)]

I note your strong exhortation to address the amendments, Mr Deputy Speaker, and I will address them in turn. It is tempting to get into a debate about whether the Bill offends the rule of law. “The rule of law” is used as an absolute term, but it is in fact a political term; it is an important principle that underlies much of our constitution, but it is sometimes misused and elevated in a way that does not do it or the debate justice. Inevitably, we have had wider discussions about the safety of Rwanda as a country, and about the geopolitics, but that misses the point. The point is whether we can be satisfied that the Rwandan Government are meeting the obligations they agreed to in the treaty of late 2022. That treaty was underpinned by a Government Command Paper and is, in effect, the basis of the Government’s answer to the exam question put to them by their lordships in the Supreme Court.

In the other place, Lord Howard of Lympne spoke powerfully about the need for the arms of the constitution to respect each other, and I entirely agree with him on that. I have said the same here in debates on this issue. We are perhaps not in the place that constitutionalists like me want to be in, but none the less, we are dealing with a judgment of the Supreme Court, based on the merits of the case and the test that it is allowed to apply: was there was a risk of a breach of the European convention of human rights—or, in this case, more a risk of refoulement as set out under the refugee convention? The Supreme Court decided that there was a risk, and the Government have rightly tried to take action to fill that gap.

I simply ask the Minister: is he satisfied that the helpful steps outlined by their lordships’ International Agreements Committee in its report of 17 January are being undertaken? I refer to those nine points that Ministers in the other place were pressed on repeatedly by, among others, Lord Carlile of Berriew, who made the point powerfully. I will not recite the nine steps, but they relate to making sure that Rwanda’s process for dealing with claims is fair, transparent and in accordance with the treaty that it entered into. It is important that the Government and the Minister address that point.

Lords amendment 1 just adds more potential justiciability and legal argument to a clause that, as I have said on other occasions, I despise, because it is full of declaratory law at best, and it creates a lot of legal opportunities for my colleagues in the profession; I declare an interest, of course. I do not think that we can perfect the clause by adding Lords amendment 1. However, Lords amendments 2 and 3 seem to have force, because if we are to go down this road of using deeming provisions, it is vital that we do not end up in a position where the law goes so far ahead of reality—say, through Rwanda’s failure to carry out its treaty obligations, or its slowness to do so—that we create that legal fiction that a lot of us are rightly worried about. I am therefore minded to support Lords amendments 2 and 3.

[Sir Jeremy Wright]

I am grateful to my right hon. and learned Friend for allowing me to intervene before he moves off Lords amendments 2 and 3. As he knows, I share his concern about the artificial finality that the Bill’s drafting presents. When it comes to the treaty, does he agree that the problem with amendments 2 and 3 is that they give all the authority to the monitoring committee? They allow it to determine that there has not been adequate compliance with the treaty, and under the amendments, that automatically feeds through to a statement that Rwanda is no longer a safe country. Under the rubric of the rest of the Bill, that decision should remain with the House of Commons and the House of Lords, not with the monitoring committee.

[Sir Robert Buckland]

My right hon. and learned Friend makes a powerful point. The amendment is capable of perfection. The suggestion that I think I made on Report was that the Bill should not to come into force until a Minister of the Crown was satisfied that Rwanda had met its treaty obligations both internationally and domestically. I take his point—more can be done—but there is force in their lordships pursuing that point, so that we marry up the reality with what we want to achieve legally. Unless that is done, I am minded to support Lords amendments 4 and 5, because I am yet to be satisfied that we are in a position where a deeming clause, although not unprecedented—they have been used on a number of occasions—or unconstitutional, is reflective of the reality.

The Lords amendments relating to clause 4 complicate the position. That clause is clearly drafted to deal with individual cases, and I do not think that we should upset that. Lords amendments 7 and 8 do not take matters significantly further. However, Lords amendments 9 and 10 have some force. Exemptions relating to modern slavery should be clear. We have led the world in our modern slavery legislation, and have a proud record on it. That work was led by my right hon. Friend the Member for Maidenhead (Mrs May) and others in their lordships’ House. It would be unfortunate, to say the least, to end up with the Bill riding a coach and horses through our important provisions on modern slavery; I am sure that is not the intention of my colleagues on the Front Bench.

Finally, on the Afghan provision, both my right hon. Friend the Member for Witham (Priti Patel) and I were in the trenches, working on that issue, back in the summer of 2021. I was helping to get judges out of Afghanistan, while she was working day and night to ensure that we saved people who had risked their lives for our way of life. I take her point and, in fact, would go further: although I expect the Government to be sensible and sensitive to the position of any future Afghan refugees and not put them into this scheme, it seems to me that we would lose nothing by accepting amendment 10.

For the reasons that I have given, the Lords amendments are a curate’s egg, as all Lords amendments will be, but there are times when it is important that a point is made. I am afraid that this is one of those occasions when I will make that point.

Safety of Rwanda (Asylum and Immigration) Bill

Jeremy Wright Excerpts

Consideration of Lords message
Wednesday 17th April 2024 Commons Chamber

[Sir Robert Buckland (South Swindon) (Con)]

Bearing in mind the short time, I will do my best to speak briefly. We have four amendments from the Lords. I can deal with them in short order. Amendment 1D has no merit. I have not voted on that particular issue before, but today I will vote against it, because we cannot perfect that mess of a clause—clause 1. I will not repeat the arguments that I have made on that, and I really do not think that the amendment improves the clause with the addition of various statutes, as the Minister said. I think that we should reject the amendment.

I agree that amendment 6D is a wrecking amendment. We know that the delineation of clause 4 specifically with individual cases was a proper and right addition to the Bill from the outset, which I think makes it compliant with the rule of law. Therefore the amendment should be rejected. I will not repeat my arguments on amendment 10D. I still think that there is a class of people who served this country, and bravely exposed themselves to danger, who have not yet been dealt with. Many of them are in Pakistan. It would perhaps have been helpful to see an amendment in lieu to deal with that point, as the Minister did with regard to modern-day slavery, for which I thank him.

I was pleased to hear the detailed reference that the Minister made to the progress being made by the Government of Rwanda to implement the provisions under the treaty. That is clearly the issue at the heart of amendment 3E and clause 2. He knows my concern about deeming provisions and the desirability of their meeting the reality of the situation, which is why I welcome his statement, and the statement of the noble Lord, the Advocate-General in the other place, that the Bill will not come into force until the treaty has been implemented.

I think the Minister conceded that the amendment in the name of the noble Lord Hope is not a wrecking amendment; it is designed to ensure that there is a mechanism through which this place can deal with the fact that Rwanda is a safe country, and to ensure that if, God forbid, the situation ever deteriorated such that it was no longer a safe country, we would not need primary legislation to correct the situation. At the moment we would. The second proposed new subsection in amendment 3E would allow this place to be involved in a situation where Rwanda might no longer be a safe country, on the advice of the independent monitoring committee, which of course is a creature of the treaty itself, set up under the treaty, as the Minister described. It is not part of the Hope amendment to set up a new body. That is not the intention.

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

I share my right hon. and learned Friend’s reservations about the inability of this House to reconsider the matter of the safety of Rwanda under the current legislation, but is the problem with the noble Lord Hope’s amendment not that the mechanism that he describes gives to the monitoring committee the final say on the safety of Rwanda? It does not give this House the opportunity to say, “We’ve heard the advice of the monitoring committee, but we none the less believe that Rwanda remains a safe country for the purposes of the legislation.” My right hon. and learned Friend and I might think that that is a wholly unlikely scenario, but as a matter of parliamentary sovereignty, does he agree that it must remain possible?

[Sir Robert Buckland]

Up to a point, Lord Copper. I think the second proposed new subsection in the amendment—proposed new subsection (8) of clause 1 —will provide leeway for the Government to disagree with the advisory committee, which might advise that Rwanda is no longer a safe country when in the opinion of the Secretary of State it is. Then it would be a matter for Parliament to determine, and the trigger would not come into place. On the first proposed new subsection in the amendment—proposed new subsection (7) of clause 1—my right hon. and learned Friend is on stronger ground, in the sense that it relates to a statement from the independent monitoring committee. However, I have no problem with an independent monitoring committee that has been set up by a treaty that has been agreed to by this Government and by the Government of Rwanda, and which has come into force in our law through the Constitutional Reform and Governance Act 2010 provisions. Slightly inelegant though it is, it is difficult to see another way to do this that could be conclusive, and which could give certainty to all those involved in the operation of the scheme.

The Minister knows that I seek to remove and reduce the possibility of legal challenge. I do not want to see the legislation becoming the subject of angst, sturm und drang in either the High Court, the Court of Appeal or, God forbid, the Supreme Court. We saw the effects of what happened when the situation as of 2022 was determined on the evidence by the Supreme Court. The Minister knows my views about that. Whatever concerns I have about the Supreme Court in effect conducting a test on evidence, which frankly is not what it should be doing—the Supreme Court should deal with and interpret the law of this country—that is the reality in which we operate. I want to ensure that the Bill does not lead to the same problem. That is why the noble Lord Hope’s amendment has strong merit. It clears up any doubt that there is not a mechanism either for the Executive or this place to apply the provisions of the Bill, or to disapply them when the facts change.

Let us ensure that the reality keeps pace with the law, and that deeming provisions, however attractive they might be, are not used as a device to cut corners and to run ahead of ourselves in a way that will only cause problems, not just for the judicial system but for the operation of the policy itself, which the Minister knows I have consistently supported, and will continue to support, as an innovative and proper response to the unprecedented challenge of mass migration that the west is facing now. This is serious stuff. I want the Government to get it right.

Safety of Rwanda (Asylum and Immigration) Bill

Jeremy Wright Excerpts

Consideration of Lords message
Monday 22nd April 2024 Commons Chamber

[Michael Tomlinson]

My right hon. Friend might have heard a few words from the Prime Minister in that regard this morning, and that is exactly right. Specifically in relation to the amendment, however, I respectfully disagree with the noble Lord Hope. There is no obligation, whether in legislation or in the treaty, to send anyone to Rwanda, as my noble Friend Lord Sharpe has said. Article 4 of the treaty sets out clearly that it is for the United Kingdom to

“determine the timing of a request for relocation of individuals under this Agreement and the number of requests for relocation to be made”.

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

Before my right hon. and learned Friend moves away from the treaty, could he help with some clarity on the relationship, as the Government see it, between the Rwanda treaty and this Bill? Specifically, is an assessment of Rwanda’s safety for the purposes of this Bill the same thing as compliance with the Rwanda treaty on the part of the state of Rwanda? If not, what is the difference? Does the concept of safety extend beyond compliance with the treaty, or is it solely limited to the question of compliance with the treaty?

[Michael Tomlinson]

As ever, I am grateful to my right hon. and learned Friend for his engagement, both inside and outside the Chamber. He has been a regular attender at these ping-pong sessions. The treaty is the operating legal instrument between the two international bodies, the United Kingdom and Rwanda. That is the status of that treaty. This Bill brings it into effect in law in this country. He knows about dealing with the system of dualism. In fact, he has appeared in the Supreme Court arguing these very points, so he knows in detail the differences between a treaty and an Act of Parliament. As I set out, there is no obligation within the treaty. It is plainly written in article 4(1) that the

“United Kingdom shall not be obliged to make any request for relocation under this Agreement.”

That means that the Government would not be obliged to relocate individuals under the terms of the treaty if, for example, there had been unexpected changes of circumstances. I know that that is something my right hon. and learned Friend has been concerned about.

--- Later in debate ---

[Madam Deputy Speaker]

As I have just intimated, there will be an immediate time limit on Back-Bench speeches of three minutes.

[Sir Jeremy Wright]

In view of the time, I wish to focus what I say on the second part of amendment 3G(8). It is clear that Lord Hope has drawn attention to a flaw in the Bill’s logic. We all understand that it is about parliamentary sovereignty, but if declaring Rwanda safe in the first instance is a matter for Parliament then why is determining whether it remains safe not also a matter for Parliament? Yet the Bill covers only the first determination of safety and provides no mechanism for Parliament to change its mind if circumstances change, save for primary legislation, which we need Government to introduce.

My quarrel with the noble Lord Hope’s amendments has been that, whereas the theme of this Bill is parliamentary authority, the earlier forms of his amendments give effective authority on the safety of Rwanda to the monitoring committee, because its conclusion on treaty compliance will be determinative of the question of safety. The later versions of Lord Hope’s amendments, however, would transfer authority to Ministers to determine —presumably on the advice of the monitoring committee —that Rwanda is no longer safe, and to make a statement to that effect. I do not think that is perfect either. I still think that for the Bill to have inherent logical consistency, it should be for Parliament to decide whether Rwanda remains safe in changed circumstances—not the monitoring committee or a Minister—but how much latitude Parliament would have in deciding whether Rwanda remains safe in changed circumstances rather depends on the point I raised in an intervention on the Minister.