Safety of Rwanda (Asylum and Immigration) Bill

John Hayes Excerpts

Committee of the whole House
Tuesday 16th January 2024 Commons Chamber

[Sir William Cash]

I am extremely glad that my hon. Friend has made that point, because I had the disobliging necessity to read some of the Supreme Court judgments from Germany. Sometimes—believe me—they run to nearly 1,000 pages, for the simple reason that they are struggling to find something that will support the German people, compared with some of the rules of law that are applied more generally on an international footing, which cause them so much trouble.

As I have said—my hon. Friend has just made my point for me—the European Union is in a complete mess on the issue of illegal migration, and we are well out of it. It still has the charter of fundamental rights, which we excluded in our withdrawal agreement, and legal changes to its immigration law, all of which will require hotly contested constitutional changes and referenda in its member states. It is going to be bedevilled by referenda and constitutional change, and I fear it will not succeed. Very many are up in arms about compulsory quotas and fines for non-compliance being imposed on them under the new pact on migration and asylum, which was passed by majority vote. It is noteworthy that recently the French Government defied rulings of the Strasbourg Court regarding the deportation of an Uzbek national, but they cannot apparently trace him as ordered by their own Supreme Court—[Interruption.] In reply to the barracking I am receiving, I simply point out that the relevance of this is that we are talking about our constitution, which can solve the problem, and about theirs, which cannot.

[Sir John Hayes (South Holland and The Deepings) (Con)]

My hon. Friend is making a compelling argument about the difference between this country and those abroad who failed to take back control when we did. He will know that constitutionalists from Dicey to Denning, and from Lord Woolf to Lord Sumption, agree with him that this place is supreme. The supremacy of Parliament is at stake as we debate his amendment and the Bill.

[Sir William Cash]

I have to say, with all humility, that it is not so much that I agree with them, or that they agree with me, but that this is the law of our land. This is the rule of law as it applies to the United Kingdom, and it is a tribute to the British people that they took that decision in 2016.

As I said to the Prime Minister in December’s Liaison Committee, he can be a world leader on the issue of illegal migration, not only in the EU, but also in the United States, Canada and Australia—every country in the world. The international refugee convention, among other conventions, is seen as requiring reform. In Europe, it is clear that they need to change the European convention on human rights as well as EU immigration law, and European Union voters are voting with their feet.

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[Dame Diana Johnson (Kingston upon Hull North) (Lab)]

I start by raising my concerns with the Government about using a Committee of the whole House for this part of the scrutiny of the Bill. We had this with the Illegal Migration Act 2023. In that case, there were hundreds of amendments and the Minister just got to speak at the end for a short time. When we are debating and scrutinising such Bills, we need to do so line by line, and we need to debate and hear the argument from the Minister and the argument from the proposers of amendments. The process we are going through does not allow Parliament to conduct that effective scrutiny that we all want to see when passing laws in this place.

Turning to the Bill, when the Home Affairs Committee published our report on channel crossings 18 months ago, we were clear about the potential problems posed by the Rwanda scheme. As I have highlighted on several occasions in this Chamber, we said that the small boat crossings are an issue on which “no magical single solution” is possible and that:

“Detailed, evidence-driven, fully costed and fully tested policy initiatives are by far most likely to achieve sustainable incremental change”.

We warned that the Government risked

“undermining its own ambitions and the UK’s international standing if it cannot demonstrate”

that the scheme was

“compatible with international law and conventions.”

We said that aspects of the scheme carried

“significant reputational risk for the UK”.

The amendments we are debating today contain provisions that are incompatible not only with the UK’s obligations under international law, but with basic principles of liberty and freedom under common law. The amendments’ implications are therefore profound and affect every single one of us. Despite what the former Immigration Minister, the right hon. Member for Newark (Robert Jenrick) said, I take in all sincerity the Rwandan Government’s view on the importance of upholding legal obligations. We can conclude that some of the amendments would prove fatal to the implementation of the Bill. Indeed, yesterday, the UN Refugee Agency declared that the Rwanda treaty and this unamended Bill are

“not compatible with international refugee law.”

I will speak to amendments 2, 3, 10, 56 and 57 and then focus my comments on amendments 19 to 22. Amendments 2 and 3 would prevent any claim based on risk derived from individual circumstances being considered until the person in question had arrived in Rwanda. That would effectively exclude the very narrow possibility for suspensive claims that the Bill currently allows, and it could result in the person being exposed to the risk on which their claim is based—including claims based on fear of persecution and torture—before it is even considered. The European convention on human rights requires

“independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3”.

It also requires that the person concerned should have access to a remedy with automatic suspensive effect. The amendments would therefore be inconsistent with that requirement of the ECHR.

Amendment 10 would extend the notwithstanding provision to apply to all the Bill and the Illegal Migration Act 2023. It would effectively prevent a claimant relying on any pre-existing legal protection to prevent or delay their removal to Rwanda. The amendment would expressly allow removal to Rwanda, despite that removal otherwise breaching domestic law and despite that removal being in breach of international law. That includes fundamental human rights from which we know no exception or derogations are permitted, such as the prohibition on torture. Needless to say, the amendment is not compatible with the UK’s obligations under international law and risks undermining our international standing.

Amendments 56 and 57 would provide that courts and tribunals would not be permitted to consider a claim on the grounds that Rwanda is not a safe country where the claimant has engaged in activity or made serious allegations that have brought into question the safety of Rwanda, or colluded or conspired with others who have done the same. Worryingly, the amendment appears to exclude people who have made serious allegations about the safety of Rwanda from asylum and human rights protection. That would be inconsistent with rights to asylum and humanitarian protection under international law and could also be inconsistent with freedom of expression as guaranteed under article 10 of the ECHR.

Amendments 19 to 22 have profound implications for us all. They would prevent any individual set to be removed to Rwanda from arguing that they could not be sent there on the basis of their own circumstances. In the inevitable absence of absolute certainty that no risk to any individual could arise in Rwanda, that would mean that legitimate claims based on a real risk of persecution and human rights violations would not be heard, and that those people whose claims are unheard would be removed to face the persecution and human rights violations in Rwanda on which their claims are based. That is clearly inconsistent with the refugee convention, the ECHR and the other international legal obligations cited by the Supreme Court in its recent judgment.

Amendment 22 would prevent the courts from reviewing not only the asylum claims of individuals being sent to Rwanda, but also claims for unlawful detention, for assault in the course of removal or for discriminatory treatment in the course of the removal process. To be clear, denying those claims would be inconsistent not only with human rights law, but with fundamental principles of liberty and freedom under our common law that have been protected for centuries, including by the writ of habeas corpus. All Members who do not want to see habeas corpus sacrificed today can surely not support these amendments.

Finally, I add my support to amendments that would make sensible and logical revisions. Amendment 1 would require the Secretary of State to monitor whether Rwanda remains a safe country. New clause 6 places conditions

“on when the classification of Rwanda as ‘safe’ can be suspended in accordance with material conditions and/or non-compliance with obligations”.

[Sir John Hayes]

The right hon. Lady will know that under this Government and previous Governments of all political colours, many people who came here illegally have been deported from this country. When that happens, it invariably does so notwithstanding claims they make about their circumstances. Sometimes, those are claims about their personal circumstances; sometimes, those are claims about the place they are being deported to and from where they come. On the basis of her speech so far, she would deport no one.

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

It is a pleasure to follow the right hon. Member for Kingston upon Hull North (Dame Diana Johnson), the Chair of the Home Affairs Committee. I rise to speak to amendments 28, 29 and 30 tabled in my name. Although they would amend clause 9, they relate to the operation of clause 2; hence their selection for debate today.

It is important that we focus on what clause 2 actually means, what its effect is and what the changed reality is with regard to the position in Rwanda—and, indeed, the position between the United Kingdom and Rwanda—since the decision of the Supreme Court in November and since the facts on which it based its decision, which relate to the spring and early summer of 2022. There is no doubt that matters have moved on significantly. We have not only a treaty between the United Kingdom and Rwanda, which was signed late last year, but an indication in the form of a policy document published by the Government, and indeed further information, as to the hard and fast changes that the Rwandan Government will be making to, in effect, answer the questions asked of it by the Supreme Court decision.

The Supreme Court decision really was not about the law; it was about the evidence. When we look at what the Supreme Court justices decided, we see that it was very much narrowed down to whether refoulement was still likely, bearing in mind the position of Rwanda. The Court decided that it was, and that is the sole reason why the policy was held to be unlawful. Other grounds were tendered in that case, including one on retained EU law. A specific ruling of the Court was that that did not apply; the law was clear that that part of retained EU law had fallen with our departure from the EU. Other aspects of the appeal were not ruled on by the Court. The decision was not, for example, based on compatibility with the ECHR. Importantly, the decision was not based on a challenge, which was upheld, to the legality of the removal of people to third countries.

In my view, it is neither illegal nor immoral to seek third-country assistance when it comes to this unprecedented challenge. Indeed, other European countries either are doing it or wish to do it. My right hon. Friend the Member for Newark (Robert Jenrick) was right to say that other countries are looking to what happens here and to the precedent that we might set.

In setting precedents, we have to tread carefully. That is why the amendments that I tabled are very much focused on the factual reality and the need to ensure that Rwanda does indeed carry out its policies. When we look carefully at the policy statement, we see that particular tasks will need to be completed, including new operational training for decision makers in Rwanda—I think the latest figures show that over 100 people have now been trained to implement the deal—and the need for clear standard operating procedures with regard to the reception and accommodation arrangements for asylum seekers, the safeguarding of their welfare and access to healthcare.

Of course, there needs to be strengthened procedural oversight of the migration and economic development partnership agreed in 2022 and the asylum processes under it. That means that bodies have to be set up—the new MEDP co-ordination unit and the MEDP monitoring committee of experts. The involvement of experts is needed, certainly in the early days of the decision making to be made by the new body, which will be set up by the Government of Rwanda. There will be a new appeal body that consists of panels of three judges, with subject-matter experts, including Rwandan judges and judges from other Commonwealth jurisdictions. All those details are important, because they go towards answering the question, which I think will be answered in the affirmative: that individuals in the scheme will not be at risk of refoulement and, therefore, there will not be a breach of the 1951 convention.

That reality has to match the deeming provision. I know that my hon. and learned Friend the Minister will be anxious to ensure that deeming provisions do not either perpetuate or encourage legal fictions. This is difficult law, but it is not unprecedented. Deeming provisions are used often in tax legislation. The leading authority is fairly recent: Fowler v. Her Majesty’s Revenue and Customs back in 2020 in the Supreme Court, in which Lord Briggs made it clear that deeming provisions creating statutory fictions should be followed as far as required for the purposes for which the deeming provision was created, but the production of unjust, absurd or anomalous results will not be encouraged. That is clearly somewhere that the courts do not wish to tread or to encourage, and neither should we as a Government or a Parliament.

We must dovetail the coming into force of the deeming provisions with the reality on the ground in Rwanda, so that we create not a statutory fiction but a series of facts reinforced by statute. That degree of care does not have to take ages—it can be done in weeks, bearing in mind the quick work that has been done already. That would go a long way to satisfying the natural concerns that many of us have about the use of such provisions. We understand why they have to be made, and we do not oppose the principle of their use, but I simply caution that we take care to make sure that we get that co-ordination right.

Many of us have been down the road of discussing ouster before, and it can take many forms. There have been examples where ouster proceedings and clauses have clearly not worked, and they are not the sole province of this Government. Previous Labour Governments tried to enact bold and sweeping ouster clauses, only to find that their efforts fell flat either before the Act became law or as a result of court intervention. I think of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, when Labour tried to be too extensive and expansive.

Experience has taught us that where we have clearly defined reasons—and, importantly, limited exceptions—ouster clauses will work. We had a recent example of that in the removal of the Cart jurisdiction in the Judicial Review and Courts Act 2022, where my hon. and learned Friend the Minister finished the job that I started. In the consultation on the judicial review, my noble friend Lord Faulks and others embarked upon those provisions at my direction. That worked—it has been tested not just in the High Court but in the Court of Appeal in the Oceana case, and it is held to be sound and watertight. Why? Because there was a clear rationale behind it, and there were limited exceptions. Herein lies the danger posed by the otherwise well-intentioned amendments by my right hon. and hon. Friends: without those limited exceptions, we are setting the Bill up to fail. That is what history has taught us.

I am a strong believer that it is from this place that the core of our constitution comes. It is from Parliament that our constitutional authority is derived. To contradict the hon. Member for Aberavon (Stephen Kinnock), who in many respects couched his remarks well, we do not have a separation of powers constitution. We have a checks and balances constitution, where each part of the body politic respects each other. I do agree with him that restraint is an important principle.

[Sir John Hayes]

My right hon. and learned Friend is making a profound and important point about the nature of the separation of powers. There is a lot of misunderstanding about it. The separation of powers is not about equal bodies or each of those bodies performing the same role. As he describes, it is entirely a matter of the balance between those bodies. This House is the body that makes laws. Judge-made law is something he and I have debated, discussed and agreed on many times, and it is invidious because, as I said earlier, this House is supreme when it comes to making or changing law.

[Sir Robert Buckland]

I entirely agree. My right hon. Friend and I are both romantic Tories of an old school, which might surprise many Members. We share that common fount of Toryism that is important to us both and, within that, we utterly respect the independence of the judiciary. It is a separate part of our constitution. To trespass upon its domain—as, sadly, in the Post Office case we have had to—is something that we do extremely reluctantly, and I hope in a very rare and unique way in that tragic and scandalous example.

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[Sir Robert Buckland]

Where there is a will there is a way. I entirely agree with my hon. Friend. I do not want to detain the Committee unduly lengthily today—some would perhaps say uncharacteristically, but I really do not—[Laughter.] Self-deprecation takes you only so far in this place! I yield to my hon. Friend the Member for Stone (Sir William Cash) in that department.

To conclude, the Privacy International Supreme Court case from about three or four years ago is a warning. Where Governments, with good intention, try to overreach and wholly exclude a particular judicial review approach, they will often fail. In that case, we saw an inevitable consequence of a line of thinking that has gone back in our law for about 50 or so years since the Anisminic case. We have to be alive to that reality. We should not put the courts in a position where we end up with what was a highly contested case with dissenting judgments. In the end, it gives us a very important guide on how carefully we need to approach these matters.

I will not pretend that I can ever love notwithstanding clauses. I do not like them, because they create all sorts of internal conflicts. Those conflicts are not necessarily in international law—I am less interested in that; I am more interested in conflict in our own domestic law—but anything that this House does that is ambiguous, contradictory, self-contradictory or unclear serves only to draw the courts further into the realm of politics, where none of them ever want to go.

We do not have a constitutional court in this country and I hope we never, ever see one. Because of our unwritten constitution, we are able as a Parliament to legislate as we wish. But—this is the qualification—I said on Second Reading that the principle of comity, that mutual respect that needs to exist between the arms of the constitution, is one that means we need restraint and to take care when we legislate. However grave the situation might be—previous generations faced wartime challenges—we must remember that in legislating in this place, we do not protect ourselves out of the very freedoms we cherish.

At some point there will not be a Conservative Government sitting on the Treasury Benches, but a Government of another hue. I hope, having been in my party for nearly 40 years—I am much older than I look—that we do not see that day, but a day will come when we, as an Opposition, will be worried about an overweening socialist Government that will try to impose their will through the will of Parliament and will not show the restraint that we expect a democratically elected Government to show. That is why the challenges we faced during Brexit were exceptional. I do not think that, despite the maelstrom we all went through and some of the things we had to do to get that done, we should be seeking to normalise them now.

[Sir John Hayes]

My right hon. and learned Friend is once again right that this place should not act in an arbitrary way. I mentioned Dicey earlier and he will be familiar with Dicey’s view on that subject. But in the end our legitimacy is derived from the people and we are answerable to the people. On this issue above all others, the people expect us to stand by our pledge and to stop the boats.

[Sir Robert Buckland]

I agree with my right hon. Friend that we are not just another public agency. This is Parliament and this place has a particular status, position, responsibility and privilege—that word privilege that he and I know and cherish so much in its true sense—that means we are absolutely at the core of our democracy and our constitution. But it is also our responsibility to make sure that the legislation we pass works. I know that he and my hon. Friends who are supporting the amendments want this law to work—I absolutely accept that—but I say in all candour and frankness that I genuinely think the amendments they have tabled will make it less likely. I do not say that with any pleasure; I say it with a heavy heart. History has taught us that where, despite good intention, we end up being too expansive and we overreach, the check and the balance that exists in our constitution will then apply. All that we will do is end up having the sort of arguments about the constitution—not arcane to me, but arcane to many people—which, while important, do not solve the problem, and do not deal with the issue that is facing us as a people.

That is why I urge the Government today to ensure that the intention in the treaty becomes a reality, that Rwanda does what it says it is going to do so that we can avoid refoulement, and that we focus on the practicalities and also avoid more unnecessary legal clash. If I may paraphrase Matthew Arnold, ignorant armies clashing by night is something that we as Conservatives should seek to avoid at all costs.