Safety of Rwanda (Asylum and Immigration) Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

Moved by

[Lord Anderson of Ipswich]

19: Clause 2, page 2, line 33, leave out “conclusively”
Member’s explanatory statement
This amendment and others in the name of Lord Carlile of Berriew would ensure the declaration that Rwanda is a safe country is capable of being rebutted in law by credible evidence. The amendments require decision-makers (including courts or tribunals) to consider credible evidence that Rwanda is not a safe country.

[Lord Anderson of Ipswich (CB)]

My Lords, I rise in place of the noble Lord, Lord Carlile, to speak to Amendments 19, 21, 25 and 28, in his name and in mine, which are also signed variously by the right reverend Prelate the Bishop of Manchester, the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Etherton. We are all grateful to Justice for its assistance in drafting these simple but important amendments.

The purpose of these amendments is to replace the irrebuttable presumption in Clause 2 that Rwanda is a safe country by a rebuttable presumption to the same effect. Decision-makers would begin from the same position that Rwanda is safe, but they would be entitled to consider credible evidence to the contrary. That is provided by Amendments 19 and 21, which amend Clause 2(1).

Amendment 28 supplies more detail by indicating the matters on which evidence could, if it is available, be presented: the risk of refoulement from Rwanda, the risk that there will be no fair and proper consideration of an asylum claim there, and the risk that Rwanda will not act in accordance with the treaty. These are all things that, under Clause 2 as it currently stands, may not be considered by independent courts and tribunals. They are not only relevant but of the highest importance to the lives and safety of anyone we send to Rwanda.

Finally, Amendment 25 would lift the bar on courts and tribunals considering claims that Rwanda is not safe. It is the logical corollary of Amendments 19 and 21: if decision-makers are entitled to consider credible evidence that Rwanda is not safe, the courts must be entitled to do so in order to determine whether they came to a lawful decision. Amendment 29, from the noble Lord, Lord Coaker, is welcome, but without an equivalent of Amendment 25 I am afraid that it does not do the job.

These amendments would not open the floodgates to vexatious claims. To be considered, any evidence must meet the credibility threshold—a well-established feature of Home Office practice, which, in a policy document entitled Assessing Credibility and Refugee Status in Asylum Claims Lodged on or After 28 June 2022, highlights a number of so-called credibility factors, including sufficiency of detail, internal consistency and plausibility.

To summarise, Clause 2, as it came to us from the Commons, requires officials to disregard relevant facts and prevents the courts calling them to account for it. With Clause 1, it creates a legal fiction—not in the field of tax law or planning law, where such things have their place, but in the totally different context of human safety and its opposite. It suppresses the evidence-based inquiry on which our common law and, ultimately, our democracy depend. Accept this and, as the noble Lord, Lord Hennessy, said in his Second Reading speech, with all his constitutional expertise:

“We shall be living in a different land, breathing different air in a significantly diminished kingdom”.—[Official Report, 29/1/24; col. 1022.]


These four amendments would enable those entrusted with these sensitive decisions to look at Rwanda as it is, not as we all hope that it may become. But I must acknowledge that, for this very reason, they go to the heart of this Bill, for it is not a bright by-product of this Bill but its whole purpose to assert to be true what first the Supreme Court and then our International Agreements Committee have found to be false, and then to protect that false assertion from rational challenge by decision-makers or in the courts.

This is not, like the previous group, a debate about exceptions. The deterrence theory on which the Bill is founded has the unfortunate result that it is the most objectionable features of this Bill to which the Government hold most tightly, even when, as here, they set a thoroughly depressing precedent. There are limits to my optimism that the Minister will respond positively to these amendments but, knowing him and respecting him as I do, I do not altogether abandon hope.

[Baroness Chakrabarti (Lab)]

My Lords, I support the noble Lord, Lord Anderson, who has put his case with the precision and succinctness that we remember of our late friend Lord Judge. These amendments would render the safety of Rwanda, which we hope will come in the future, a rebuttable presumption rather than an absolute conclusion. They echo my Amendment 34, which we discussed in the first group, but put more flesh on those bones. I commend them to the Committee.

I also remind the Committee that the amendments echo a finding by your Lordships’ Constitution Committee. Ministers say that it is precedented and normal to have lists of safe countries in asylum statutes. That has been the case in the past, but in those past cases the consequence of being a safe country on a so-called and unfortunately coined white list of countries has been only a rebuttable presumption. So Ministers were wrong, for example, to say during the course of the Illegal Migration Act, “Nothing special here, nothing new”, when they said that it will be an absolute conclusion and irrebuttable presumption that any country is absolutely safe.

We need to amend this Bill in good faith. We need belts and braces. We will have to look at other provisions and amendments around how it is that we will judge when Rwanda becomes safe, as we all want it to be. In any event, even when all the experts in the world—the UNHCR, independent monitors, parliamentary committees —say that things have gone well in the last couple of years and that the treaty worked out, and how wrong we were to be so sceptical as things have gone so well, so quickly, and Rwanda is considered to be one of the safest countries in the world for its treatment of asylum seekers and refugees, it is still right in principle that the presumption of safety should be a rebuttable presumption and not an absolute conclusion that squeezes out the judgment of civil servants, Border Force and Ministers, or ousts the jurisdiction of our courts.

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[Lord Stewart of Dirleton (Con)]

My Lords, all relocated individuals will receive protection appropriate to them and assistance according to their needs, including, where necessary, referral to specialist services to protect their welfare. Furthermore, it remains possible for an individual to raise a claim that their individual circumstances mean that Rwanda is not a safe country for them. Should such a claim succeed in demonstrating that serious, irreversible harm will result from removal to Rwanda, that removal will not take place. We expect such successful claims to be rare, bearing in mind the safety of Rwanda, which I have already set out in my response.

The United Kingdom and Rwanda will continue to work closely to make this partnership a success. I do not accept that individuals relocated to Rwanda would be at risk of torture or any other form of inhumane or degrading treatment. I assure the Committee that, under this Bill, decision-makers will already be able to consider compelling evidence relating specifically to a person’s individual circumstances. Should someone with particular vulnerability concerns be relocated to Rwanda, safeguarding processes will be in place.

That Rwanda cares deeply about refugees is amply demonstrated by its work with the UNHCR to accommodate some of the most vulnerable populations who have faced trauma, detention and violence. We are confident that those relocated under our partnership would be safe, as per the assurances negotiated in our legally binding treaty. I therefore invite the noble Lord to withdraw his amendment.

[Lord Anderson of Ipswich (CB)]

My Lords, it was once the practice of our courts to prevent the jury from dining until they had reached their verdict. Rising to my feet on the wrong side of 3.30 pm, it seems that this practice may live on, unreformed, in what we must get used to calling “the court of Parliament”. Your Lordships may feel that they have had enough food for thought in this debate and that it is time for sustenance of a different kind, so I shall be as brief as I can in response.

What a debate it has been—fully up to the standards of its predecessor earlier today. I will pick out a few of the highlights from the Back Benches. We had lessons from the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Hoffmann, on precedent. It seems one has to go back to 1531 to find a precedent for this Bill. The moral I took from his tale was that it ended badly for both the cook and the Act.

We were reminded by the noble Baronesses, Lady Lister and Lady D’Souza, of the astonishing fact that the courts must not consider even a complaint of risk of torture in Rwanda or a country to which Rwanda might send somebody. As the noble Lord, Lord Cashman, and the noble Baroness, Lady Kennedy, reminded us, that is no theoretical possibility. What an illustration it is of the lengths to which this extraordinary provision goes. We also heard a political analysis from the noble and learned Lord, Lord Falconer—I suspect it was very astute, but it is well above my pay grade so I will say nothing more about it. The right reverend Prelates the Bishops of Bristol and Leeds wove together the legal, moral and even philosophical aspects of the issue, as did the noble Lord, Lord Scriven. We are grateful to them for that.

I will single out two speeches, both from the Conservative Benches. The first was from the noble Lord, Lord Clarke of Nottingham. I followed with great care everything the noble Lord said, not just in this debate but in the debates on the Illegal Migration Bill. It seems that he is one of the very few people, either in this House or outside it, who can vocalise the quite understandable unease engendered in fair-minded people in this country by the prospect of immigration generally, and particularly by the prospect of people—as they see it—coming in without respecting the rules. He combines that with an absolute conviction that we need to address that problem without sacrificing our core values. I am so grateful to him, once again, for that extraordinary speech. How on earth did he never become Prime Minister of this country? There will be political historians who know the answer to that.

The speech of the noble Lord, Lord Deben, is the other speech I will single out, because he made the link so persuasively between this Bill and the most insidious of the threats to our democracy: disregard for the truth and subjugation of the truth to political expedience.

As to the Minister’s speech, he made the argument that considering even a claim that someone would be exposed to torture would place, as he put it, excessive demands on the resources of the courts and stand in the way of relocating individuals. With great respect to the Minister, I found that extraordinary coming from the mouth of a lawyer. I have rarely heard such a formulation of the argument for administrative expedience.

He raised Clause 4(1), and I acknowledge that it makes provision for decisions based on “particular individual circumstances”. If you have compelling evidence relating specifically to your individual circumstances, you might receive some consideration, either by the decision-maker or the court. However, as the clause also says, if your ground is that the Republic of Rwanda is not a safe country in general, it does not work. As the noble and learned Lord, Lord Hoffman, reminded me sotto voce during the debate, it is apparently therefore a defence to a claim under Clause 4 that you are about to be exposed to torture, “Oh, don’t worry, plenty of other people will be exposed to torture as well, it’s nothing to do with your own particular individual circumstances—case dismissed”. It is extraordinary.

We should be grateful, I suppose, to hear the Minister say that our amendments and speeches are listened to and that his party does not dictate the reporting of the Sun. I am grateful for both of those things, and we look forward to seeing those welcome words reflected in actions. On that theme, it was good to see the Opposition Front Benches listening intently throughout. I have no doubt that we will be coming back to these issues on Report. It may be that, as the noble Lord, Lord Coaker, said, the Bill will not be blocked, but we have to get it right and we cannot legislate for nonsense.

I say to the Minister that we do not want to boil him alive—although it may sometimes feel a bit like that—but this Bill poisons the springs of our democracy and I very much hope that this Chamber at least of the court of Parliament will continue to say so. However, because it is the convention at this stage, I beg leave to withdraw my amendment.

Amendment 19 withdrawn.

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[Baroness Lawlor (Con)]

My Lords, I have found this group of amendments very interesting and I am grateful to the noble Lord, Lord Kirkhope, for introducing it. But there has been a liberal use of certain concepts in the debate that I would like to comment on. We have heard a great deal about parliamentary sovereignty and history, including the history of the party on whose Benches I have the honour to sit.

The Conservative Party is a very broad church; it is no more the party of my noble friend Lord Hailsham than the great party opposite is the party of Mr Corbyn. These are great parties because, from time to time, they catch the hem of history as she passes by. On this occasion, I suggest that it is well worth listening to the Front Bench of this party, with its great electoral mandate, to do what is necessary to control these borders. I have no doubt that the party opposite will catch that hem sometime, but on this matter it is with our Front Bench.

[Lord Anderson of Ipswich (CB)]

My Lords, I am afraid that this will be a more prosaic and lawyerly contribution than the two we have just heard, but at least I will keep it short. When I first read the title of Clause 3, I did not appreciate quite how radical and unprecedented it is. I thought it right to bring that to the attention of the Committee, because I sit on the Constitution Committee with the noble and learned Lord, Lord Falconer, and others, and it certainly preoccupied us there. It is true that the Government have recently acquired what has been called a habit of seeking to disapply the strong duty of interpretation in Section 3 of the Human Rights Act. We saw that in the Illegal Migration Act 2023 and we see it in the Victims and Prisoners Bill. Had Mr Raab’s Bill of Rights Bill been brought forward, we would have seen a general disapplication of Section 3 across the board.

When we came to look at this in the Constitution Committee, we noticed the ways in which Clause 3 goes beyond even these precedents. It disapplies Section 3 but also Section 2 and Sections 6 to 9; I believe I am right in saying that neither of those things has ever been done before. Furthermore, those novel disapplications apply more widely than just to this Bill. Clause 3(3) states that Section 2 does not apply to Rwanda safe country determinations

“under any provision of, or made under, the Immigration Acts”.

Thirteen such Acts are listed by the Constitution Committee in a footnote. Clause 3(5) clarifies that Sections 6 to 9 of the Human Rights Act do not apply to sections of the Illegal Migration Act 2023 in relation to the assessment of whether removal to Rwanda could give rise to serious and irreversible harm.

Of course, the noble Lord, Lord Murray, is right that there was a world before the Human Rights Act—a less satisfactory world, I would say, in terms of human rights protection. What all this means in practice is that decision-makers and courts making decisions in relation to the safety of Rwanda, save in an application for a declaration of incompatibility, are instructed to ignore what the ECHR has to say about one of the most important of human rights, perhaps the most important of all—the right not to be subject to torture or inhuman and degrading treatment—and to ignore it, furthermore, in relation to one group only: the particularly vulnerable group of asylum seekers. That puts added weight on Strasbourg, as the noble Baroness, Lady Kennedy, said, as a backstop. That backstop is itself weakened, as we will see when we come on to Clause 5.

As a unanimous Constitution Committee said in our usual moderate terms:

“This is of considerable constitutional concern”—


I pause to note that the four Conservative members of that committee signed up to that formulation. We also invited the House

“to consider the potential consequences of undermining the universal application of human rights”.

For my part, I consider that this is an unhappy and dangerous road to go down.