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.

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[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.

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[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.

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[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.