Safety of Rwanda (Asylum and Immigration) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

[Lord Tugendhat (Con)]

My Lords, like other noble Lords, I was unable to be present for Second Reading two weeks ago, but I cannot allow the Bill to pass through the House without making my deep concern about it evident in public. I am speaking on this group of amendments because they go to the heart of my concern.

I have been a Member of Parliament for a very long time, on and off, and a member of the Conservative Party for some 66 years, when I counted it up. I find it quite extraordinary that the party of Margaret Thatcher should introduce a Bill of this kind. Like some other noble Lords, I have a clear memory of the great battle that Margaret Thatcher fought with the European Union—the European Community in those days—over the British budget contribution. From time to time, it was suggested that she should cut the cackle, put the continentals in their place and cut off the British contribution. That would have been very dramatic, and very popular in some circles, but she did not countenance the idea because she believed that it would be contrary to the law. There were those who warned that it might even run into trouble in the British courts. How different that is from this Bill and the way in which we are now asked to behave towards the Supreme Court and the European Convention on Human Rights.

This is no esoteric matter that concerns only the subject under discussion and is of interest only to lawyers. We in this country frequently boast that Britain is such a marvellous place to do business because of our great respect for the rule of law and because the Government, unlike some Governments of the world, can be relied on not to make arbitrary and unreasonable acts. It is very difficult to sustain that argument in the light of the Bill now before us. I do not know whether those who envisage doing business in this country will draw that conclusion or not, but we are going against a fundamental interest, not just on this issue but for our wider reputation.

What we are asked to do represents the sort of behaviour that the world associates with despots and autocracies, not with an established democracy nor with the mother of Parliaments. It is a Bill we should not even be asked to confront, let alone pass.

[Lord Falconer of Thoroton (Lab)]

It is a privilege to follow what the noble Lord, Lord Tugendhat, said, and I strongly agree with it. I will focus on two things in relation to what the Government are asking us to do. Before that, I apologise for not having been here at Second Reading—I, too, was abroad. I declare an interest as a member of the Constitution Committee of this House, which published a report unanimously expressing very considerable concerns about the Bill.

I have two concerns about the Bill. As a nation, we have accepted for the last 70 years that we will not deport asylum seekers to a place where they may face death, torture or inhuman treatment, and that, if asylum seekers feel that that is a risk, they can seek protection from the courts. The courts may well give an applicant short shrift if they do not think there is anything in it, but we have stood by that protection for 70 years and incorporated it into our domestic law in the Human Rights Act 1998. The Bill envisages the possibility—or indeed it being the more-likely-than-not result, according to those who have looked at it independently—that people will be sent to Rwanda, where they will be at substantial risk of being refouled, which means sent back to a place where they could be tortured or killed.

The claim made by the Government is that we have entered into an agreement with Rwanda that says it will not send anybody who comes from here to anywhere except the UK, to which the answer is that given by the international treaties committee: that the reason there was a risk of refoulement was that Rwanda did not even have the most basic system of properly assessing asylum claims. The idea that the Bill envisages—that the moment the new treaty comes into force, it will provide that protection—is absolute nonsense. Everybody appreciates that except, as far as I can see, the right honourable Mr James Cleverly, the Secretary of State for Home Affairs. If we look at the conclusions that the Supreme Court introduced, we see that, factually, it is just a non-starter.

The Government say, and I am sure that the noble Lord, Lord Sharpe, will confirm it on their behalf, that they stand by the commitment we have made for the last 70 years that asylum seekers will not be exported to a place where they might be refouled. If that is their true position, how on earth can they allow this? The international treaties committee also said that, quite separately from the fact that we would need to reform completely Rwanda’s asylum system, we would have to enter into a number of other detailed provisions before it could be seen whether the provision in the new agreement prevented refoulement. Those agreements have not yet been entered into with Rwanda, and there is no requirement for them to be so before the Bill becomes law.

My first big objection to the Bill is that it goes against commitments we have made as a nation and stood by for the past 70 years. If we are looking for solutions to the problems of immigration in the world, turning our backs on all the international agreements that we have made seems a very bad start indeed.

My second big objection to the Bill is that it fundamentally crosses over the separation of powers. The noble Lord, Lord Howard of Lympne, whom I greatly admire—he was a member of our Constitution Committee—said, “Oh, don’t worry. We’re just taking the opinion of the former Lord Chief Justice, who is the dissenting voice in the Court of Appeal”. No, that is not what the Government say they are doing. They are saying, “We’ve taken account of the Supreme Court judgment. We respect that judgment. We’re not going with the former Lord Chief Justice’s judgment; we’re dealing with the points that have been made—and, by the way, dealing with them while not letting anybody question us about that”. That is absolutely not the role of this House or the courts.

What this Bill leads to is Parliament delivering what the noble and learned Lord, Lord Garnier, described as silly, but is so much more profound than silly. I quite agree with him that the beginning of the Bill is very silly in the way that it reads—it is a cack-handed attempt to deliver a judgment, like a court would read—but it is not silly; it is dangerous.

Think of three examples. First, Parliament can say, “Even though we see Rwanda refouling people we are sending, and it is sending Afghans, Syrians and Iraqis back to death or torture, we will do nothing”. We will say that that is okay because we made our judgment that it was a safe country.

That is one example. Let us take another. Suppose the Prime Minister has a friend or a crony in the House of Commons who is convicted in a court of corruption of some sort. The Prime Minister then presents a Bill to Parliament, saying, “It is the judgment of Parliament that Snooks MP actually wasn’t able to present this new evidence to the criminal court that convicted him, so it is the judgment of Parliament that Snooks MP is innocent”. That is the route this Bill takes Parliament down.

Take a third example: the Electoral Commission decides that it will not investigate some problem of, say, not complying with expenses and the courts then say, in relation to that decision, “The Electoral Commission was overinfluenced by party-political considerations”—for example, the governing party was very unkeen for there to be a proper investigation of some expenses fraud in an election, and on judicial review the Electoral Commission’s refusal to investigate was set aside on the basis there was no basis not to investigate. Once again, relying on this precedent, the Government of the day, assuming they have a big majority, can produce a Bill that says, “It is the judgment of Parliament that the courts have got that opinion wrong”—as the noble Lord, Lord Howard of Lympne, introducing a whole new concept in the law, said is the position.

That is the danger of this Bill. I am not sure that I support all my noble friend Baroness Chakrabarti’s solutions—in particular, I am not sure the reference to the United Nations commissioner on refugees is the right source—but, my goodness, if we start letting Parliament make such judgments, we open a door that will be incredibly difficult to close. We in this House surely should not give effect to it.

I have one final point. The noble Lord, Lord Murray of Blidworth, said, “Don’t worry, it’s all Clause 4”. It is not. Clause 4 allows appeals to be made only by people who say something different from “the country is not safe generally”; it is only if there is something specific about them. If, for example, I am a voluble member of the Rwandan opposition and I am then sent to Rwanda, where I may get tortured or killed, then I have a ground, but if I am from Syria or Afghanistan and Rwanda is refouling regularly, I have no basis for appealing.

My first point is that we should stand by our commitments to asylum seekers. My second is: do not listen to this siren song that this is not a fundamental change in our constitution. It is, and it will be the foundation of very bad things to come.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I was at Second Reading. I do not know if that makes me less interesting to listen to than the noble and learned Lord, Lord Falconer, and all the rest. I have heard some of these remarks before, of course, but it is always a pleasure to hear them again, if I agree with them. I will say something quite similar to what noble Lords have just heard from the noble and learned Lord, Lord Falconer. I will obviously say it less competently, because I do not have legal training, but what I do have is common sense. I am not suggesting that they are mutually exclusive, but they are two completely different things.

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[Lord Falconer of Thoroton (Lab)]

Can the Minister indicate when the Government will respond to the report on the Bill by the Constitution Committee of this House?

[Lord Sharpe of Epsom (Con)]

I am afraid that I do not know; I will find out.

[Lord Falconer of Thoroton (Lab)]

And write to me with the answer.

[Baroness Chakrabarti (Lab)]

I am grateful to all Members of the Committee from around the Chamber for the constructive manner and tone with which these proceedings on the first group have been conducted. Noble Lords will forgive me if I do not mention every excellent contribution; they will understand that is not a discourtesy to Members of the Committee, but, I hope, a bit of kindness to those who have amendments to follow this evening.

I am particularly grateful to the noble Lord, Lord Howard of Lympne, for following immediately, because he was able to crystallise some key issues between us, on my suite of amendments as well as on all the others in the first group. In essence, he had two points: one that I can embrace to some extent, and another that I cannot. I think that he was the first to point out that, in the way that I have formulated my suite of amendments, I have given perhaps too determinative a role for the UNHCR. I explained the reason for that: it was because the Prime Minister said that he was going to assuage the concerns of the Supreme Court. None the less, I take the noble Lord’s point—which was echoed by subsequent speakers, if less robustly—so I hope not to create a determinative role for the UNHCR in the next stage of proceedings, although I also note that many Members of the Committee, including the Minister, referred to the important part that the UNHCR plays in the world on refugees and the convention.

However, the second crucial point—

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[Lord German (LD)]

Indeed. That is why, in this suite of amendments, the Secretary of State has to take the advice of a number of organisations—not one in particular but a number of organisations. The Secretary of State must produce the evidence to show that the requirements are in place, operational and working according to the decisions that were originally in place as wanting to see this thing through.

[Lord Falconer of Thoroton (Lab)]

Is it right that what the noble Lord perhaps had in mind when referring to the Supreme Court judgment was its words that the problems in Rwanda were not a lack of good faith on the part of Rwanda but

“its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement … and the scale of the changes in procedure, understanding and culture which are required”?

The noble Lord, Lord German, might also have had in mind that the Supreme Court identified

“a culture within Rwanda of, at best, inadequate understanding of Rwanda’s obligations under the refugee convention”.

Would it be the case that the noble Lord, Lord German, might also have been rather worried that simply having to agree that “We won’t refoule” from a date which I assume would be about a month or two from today sits rather unkindly against that assessment by the Supreme Court? Am I also right in saying that the noble Lord, Lord German, would have been very heartened by the noble Lord, Lord Sharpe, who said that he accepted all that the Supreme Court had said?

[Lord German (LD)]

My Lords, I am loath to say “yes” to a leading question from a leading lawyer, but he is absolutely right, of course. For those words added to what I said earlier and paragraph 104, which we have already had referred to, the

“necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring”.

If you read the Supreme Court judgment, you will know what we have to test in order to prove Rwanda’s safety. That is what the committees of this House have been trying to do.

This suite of amendments turns it all around. It says that it is the judgment of the Government, which they would have to bring forward in an order for the House to accept, but before that they would have to address all the issues in Amendment 84 which are proposed for new Clause 84(1)(c). They would also have to consult and be certain that they had made the case. If, at the end, Parliament approved the order that the Government had put before it, the courts could intervene and test it on the basis of fact. That is our current procedure for dealing with issues of this sort. I am loath to say that this is back to the future, but it is keeping in track where we stand as a Parliament—how we make decisions, where they are tested and whether they can be tested in the courts.

We cannot allow a dangerous precedent to be set with this overreach of Parliament’s role. The courts need to remain as the check and balance on the exercising of the Secretary of State’s power. Parliament cannot be allowed to overturn the evidence-based findings of fact made by the highest court in the UK, given that this Bill is there for ever and does not look at what happens in the future. We need to stand firm against the Government’s attempt to subvert the separation of powers in this country. Today, this is about asylum seekers; tomorrow, this precedent will be applied to the next group who find themselves as the latest scapegoats of the Government.

I end with the words of the late Lord Judge in this Chamber. I sat here listening to him and I hear those words echoing in my head now. He said:

“the rule of law is a bulwark against authoritarian incursion, and even the smallest incursion threatens it”.—[Official Report, 19/10/20; col. 1286.].

Those are wise words. This suite of amendments seeks to uphold the principle that he espoused so powerfully. I beg to move.

[Viscount Hailsham (Con)]

I commend to my noble friend the concept of the rolling sunset, which he will find in Amendments 81 and 82.

[Lord Falconer of Thoroton (Lab)]

I am very interested in the amendment tabled by the noble Lord, Lord German. On one view, it is saying that the Secretary of State makes his or her decision only after properly considering all the relevant factors. It may be that what he has in mind is that, thereafter, there can be appropriate review of that by the courts. I assume that he has in mind judicial review. Therefore, it would be the decision of the Secretary of State that was judicially reviewable. It is worth thinking about whether, once that decision had been made and then upheld by the courts because there was a proper basis on which a Secretary of State could reach that decision, in general terms the question of whether the country was safe would not thereafter be open to consideration by the immigration office.

I would not be in favour of that as a matter of principle, but if one is looking for a compromise—this is something that the noble Lord, Lord Anderson of Ipswich, touched upon, and it may be dealt with in later amendments—I would be very interested to hear what the view of the Government is in relation to a situation where, in effect, the Secretary of State had to make a proper decision addressing the proper considerations and that decision was then open to judicial review. Could that be a compromise?

[Lord Howard of Lympne (Con)]

My Lords, I had not intended to speak on this group, but the noble and learned Lord, Lord Falconer, has just raised an extremely interesting point. He suggested that a decision by the Secretary of State, having considered the factors referred to by the noble Lord, Lord German, should be subject to judicial review. The principles of judicial review are clear: the court does not substitute its own view of matters; it assesses whether the Secretary of State came to a reasonable decision.

Departing somewhat from the Government’s view, one of the problems that I have with the Supreme Court decision is that it was not based on the principles of judicial review. The Divisional Court did approach it on that basis and the Supreme Court said that that was wrong. The Supreme Court, relying on precedents that had never received the authority of Parliament or statute, decided that it should not apply the principles of judicial review, but should decide these matters for itself. That is a very important distinction between what happened in this case, which gave rise to this legislation, and the procedure now being proposed by the noble and learned Lord, Lord Falconer.

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[Lord Stewart of Dirleton (Con)]

I accept that and I did hear the noble Baroness make that point from the Benches opposite.

Since summer 2022, when judicial review proceedings in relation to the migration and economic development partnership began, the United Kingdom and the Government of Rwanda have worked to refine and improve that partnership. This has strengthened not only the operational readiness of Rwanda to receive and support migrants relocated under the partnership but the legal footing of the agreement and the commitments both sides undertake to ensure that national and international obligations and standards are met, having scrutinised closely and carefully all the circumstances of the country and information from appropriate sources.

Rwanda has a long history of supporting and integrating asylum seekers and refugees in the region. It has also been recognised internationally for its general safety and stability, strong government, low corruption and gender equality. I quote from what the Kigali-based comprehensive refugee response officer, Nayana Bose, of the UNHCR said in December 2021—mark the date:

“Rwanda has done an excellent job integrating refugees in the national education system, including urban refugees in the national community-based health insurance plan, providing them with national ID cards and offering them livelihood opportunities”.


As the Committee is aware, the Bill is underpinned by the treaty, Article 10 of which in particular sets out the assurances for the treatment of relocated individuals in Rwanda, including abiding by the refugee convention in relation to those seeking asylum. Furthermore, pursuant to Article 3 of the treaty, the parties agree that the obligations therein

“shall be met in respect of all Relocated Individuals, regardless of their nationality, and without discrimination”.

Under this commitment, Rwanda will treat all groups of people fairly. We have assurances from the Government of Rwanda that the implementation of measures within the treaty will be expedited. The treaty will follow the usual process with regard to scrutiny and ratification. I note that amendments tabled by noble Lords on this topic will be debated in the group to follow.

Amendment 17 would also oblige the Secretary of State to consider Rwanda safe only if it was deemed so for every descriptor of person as set out in Section 7(3) of the Illegal Migration Act. In relocating individuals to Rwanda, decision-makers will make a case-by-case decision about whether there is compelling evidence that the particular circumstances of each case would mean an individual would be at risk of serious and irreversible harm were they to be relocated to Rwanda. This means that each person’s circumstances are considered before relocation. We therefore consider the amendment unnecessary.

Amendments 24 and 27 relate to the roles of courts and tribunals. It is important that we recognise that these are considered decision-makers in relation to relocating individuals to Rwanda, and they may have a say in it.

Amendment 27 in particular would place an obligation on courts and tribunals to consider any claim that Rwanda may breach its international obligations by removing an individual to a country that was unsafe for them; that an individual may not receive fair and proper consideration of their asylum claim; and that Rwanda will not act in accordance with the terms of the treaty. This obligation is unnecessary. Rwanda is as committed to this partnership as we are. We have worked closely together to build this partnership and have trust that the commitments in the treaty will be upheld. That is why we have introduced the Bill, which reflects the strength of the Government of Rwanda’s protections and commitments given in the treaty, allowing Parliament to confirm the status of the Republic of Rwanda as a safe third country.

The noble and learned Lord, Lord Falconer of Thoroton—I speak to his later contribution, rather than when he was assisting the noble Lord, Lord German, with legal analysis—posed the question of whether judicial review might be applicable. My noble friend Lord Howard of Lympne took up that point as well. On that aspect, I refer noble Lords to the terms of Article 22 of the treaty, which provides:

“In the event of a dispute arising out of or relating to this Agreement, including any question regarding its existence, validity, termination, interpretation or implementation, the Parties shall refer the dispute to the Joint Committee which shall meet within 14 … Working Days to discuss and seek resolution to the dispute by consultation”.


Therefore, the process by which matters will be addressed, if there is some shock to the operation of the system once it is operational, is set out in the terms of the treaty and operates on the level between the two countries.

[Lord Falconer of Thoroton (Lab)]

I thank the noble and learned Lord for answering the question, but I am not sure that answers the point. Suppose the position were that the UK said, “You haven’t implemented it properly”; the effect of this Act would be nevertheless that a Minister and every single deciding body would have to decide that Rwanda was a safe country. I am not quite sure how Article 22 responds to the suggestion that I think the noble Lord, Lord German, makes in his amendment that judicial review should be available—albeit, as the noble Lord, Lord Howard of Lympne, said, it would be the decision of the Secretary of State as to whether it was a safe country. Could the noble and learned Lord address that suggestion?

[Lord Stewart of Dirleton (Con)]

My Lords, in relation to the operation of the treaty during its currency, we should bear in mind that a monitoring committee is in place, which examines these things on a going-forward basis, keeps them under supervision and reports back.

Annexe B of the treaty also sets out the claims process for relocated individuals and how they will be treated. It sets out clearly that members of the first instance body, who will make decisions on asylum and humanitarian protection claims, shall make such decisions

“impartially, solely on the basis of evidence before them and by reference to the provisions and principles of the Refugee Convention and humanitarian protection law”.

In preparation for the potential relocation of individuals, officials in the United Kingdom have worked together with Rwandan officials to develop and commence operational training for Rwandan asylum decision-makers. Most recently, Home Office technical experts, in collaboration with the Institute of Legal Practice and Development, delivered a training course aimed at asylum decision-makers in Rwanda.

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[Baroness Kennedy of The Shaws (Lab)]

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

[Lord Falconer of Thoroton (Lab)]

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

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

[Lord Stewart of Dirleton (Con)]

More than a few weeks ago, I think, but what we have is an internationally binding treaty between two sovereign states. That—if the noble and learned Lord will bear with me—is of the utmost significance in considering such matters.

[Lord Falconer of Thoroton (Lab)]

Am I right in saying that the legally binding commitment commits Rwanda to do the things, particularly in relation to refoulement, which it had already promised—although not in an agreement—to do? Am I right in saying that the very judgment which the noble Lord, Lord Sharpe, said an hour ago the Government respect, would take considerable time to take effect because of cultural understanding and the need for very substantial change? I am looking for something other than simply signing an agreement to do with that which it had already promised to do, which the Supreme Court said it was not in a practical position to deliver. Will the Minister tell the Committee what has happened that gives one confidence that that which the Supreme Court says will take time will in fact be ready in an instant?

[Lord Stewart of Dirleton (Con)]

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

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[Lord Stewart of Dirleton (Con)]

I think the noble Lord overstates the matter. Advice and assistance are being provided to assist a country to shape its laws and culture in a way which is consistent with ours. The work Rwanda has undertaken is substantial. Work has been done in response to the decision of the Supreme Court, albeit, as my noble friend Lord Howard of Lympne pointed out, that that decision ultimately related to refoulement, which is expressly covered in the treaty.

[Lord Falconer of Thoroton (Lab)]

The noble Lord, Lord Howard, is correct when he says that the fundamental reason why the Supreme Court said no to this was the risk of refoulment. But it said that the risk of refoulement was caused by Rwanda’s asylum system, which was totally defective across the board. Rwanda could not prevent refoulement because its system was so bad. The judgment refers to

“its practical ability to fulfil its assurances, at least in the short term, in the light of the present deficiencies of the Rwandan asylum system, the past and continuing practice of refoulement … and the scale of the changes in procedure, understanding and culture which are required”.

That is what the Supreme Court identified as being required. So it is both accurate but rather misleading to say it was only refoulement. There was the risk of refoulement because of the failures. Would that be the Government’s understanding of the position?

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[Lord Stewart of Dirleton (Con)]

My Lords, it is entirely prudent and appropriate to anticipate contingencies in the terms of a document such as a treaty.

[Lord Falconer of Thoroton (Lab)]

The noble and learned Lord is taking a much tighter and more defensive position than the Government themselves are taking. They accept the proposition of the question put by the noble Lord, Lord Kerr. They do not say that Article 10 is enough on its own. They say the following:

“The Supreme Court concluded that changes needed to be made to Rwanda’s asylum procedures in order to ensure compliance with the principle of non-refoulement”.


They accept the proposition. That is paragraph 76 of the Government’s own statement. So tell us what changes and where we have got to. It is not enough—and the Government accept that it is not enough—just to rely on Article 10.

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[Lord Inglewood (Non-Afl)]

My Lords, I rise just to say that I entirely agree with those who have said that we should look carefully at the direction of travel suggested by the amendments from the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, and encourage the Government to do the same.

It seems to me that the Government have got themselves into a pretty strange position. In proceeding with what they want to do, they have given themselves a binary choice: either legislate a fundamental untruth or find a way of establishing a system that will bring about and give confidence on the safety of Rwanda. If they do not want to do the former—and they should not—they must investigate ways of doing the latter.

[Lord Falconer of Thoroton (Lab)]

My Lords, I shall first address the remarks of the right reverend Prelate the Bishop of Lincoln. Speaking entirely for myself, nothing I say is intended to cast any aspersions on the state of Rwanda, the suffering that it has gone through or the plight in which it currently finds itself. I found his remarks incredibly moving. The Supreme Court made clear that it was not a lack of good faith that had led Rwanda to be in the position that it is in; it was just that Rwanda did not have a system that could properly deal with the analysis of asylum claims in a way that would be acceptable to the commitments that we as a country have made to asylum seekers.

I agree very strongly with what the noble and learned Lord, Lord Hope of Craighead, and the noble and learned Baroness, Lady Butler-Sloss, said: that Clause 1, in so far as it says that

“Rwanda is a safe country”


is not right, and it would be wrong for us as a Parliament, or as the House of Lords, to agree to that which we know is wrong.

May I address the four alternatives that are now before the House as a means of trying to deal with that? First, the noble and learned Lord, Lord Hope, has proposed that one can give effect to the provisions of the legislation only if the joint committee, set up under Article 16 of the recent Rwanda-UK treaty, says that the agreement is being complied with, and that committee would have to act on the advice of the monitoring committee. In principle, that sounds quite a good idea. As the noble and learned Lord acknowledged, one should recognise—I do not say this in a disparaging way—that the joint committee is just the two Governments.

If it is the joint committee alone, that gives no additional assurance. Because the UK Government want to do this come what may, it is hard to imagine that the Rwandan Government are going to say that they are not complying with a treaty which they say they are complying with and have committed themselves to complying with. If it was only the joint committee under Article 16, that would not provide much protection, I say with some respect.

The amendment proposed by the noble and learned Lord, Lord Hope, says that the joint committee has got to act on the advice of the monitoring committee. Only if the monitoring committee positively advises that the agreement is not being complied with will the joint committee of the two Governments be prevented from giving the advice that it wants to give. I have no idea how this monitoring committee will work. It will presumably be 50:50 on each side. If it is paralysed, I do not know whether the noble and learned Lord’s proposed requirements would then be satisfied. If the joint committee was not getting positive advice one way or the other, it would still be able to give the assurance that one gives. Could that be dealt with by a number of tweaks? It might well be possible.

Subject to those points, I can see attraction in what the noble and learned Lord, Lord Hope, is saying. The only other point I have on his proposal is that the Minister appears to escape any duty at all. Should we not have it so that the Minister is subject to judicial review on the decision he takes about whether to implement the treaty?

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to the noble and learned Lord, Lord Falconer, for his comments on the significance of the joint committee. I would introduce it only at the beginning. For the future, it is entirely a matter for the monitoring committee to advise on whether the system is being fully implemented, once it has started up. One could remove the joint committee altogether and just have it rest entirely on the monitoring committee; that would be very close to the position of the noble Lord, Lord Anderson, and indeed that of the noble Lord, Lord Coaker. We are working towards a solution of some kind, but I welcome very much the helpful comments of the noble and learned Lord.

[Lord Falconer of Thoroton (Lab)]

I am grateful. The other proposal, which my noble friend Lord Coaker has put his name to, as well as the noble and learned Lord, Lord Hope, is to get the monitoring committee to decide. Then one of the only wrinkles would be: how does this monitoring committee work? It would require a positive assertion by the monitoring committee that the terms of the agreement are being broken. If the committee cannot get that, for example because it is deadlocked, then this potential Act would be given effect to. That is the second alternative.

The third alternative is the proposal by the noble Lord, Lord Anderson, that there be an independent reviewer. If that reviewer says it is not safe, this potential Act would be given effect to, as I understand it, only if there is a resolution by the House of Commons saying that it is safe. That has some attractions, but I am not attracted to it at the moment. First, the House of Commons has already shown its willingness—not because its Members are dishonourable people but because they are whipped by the Government, who have a significant majority—to pass a Bill that uses the word “is”. Secondly, surely such a resolution has the same vice as the Bill: one is asking Parliament to sit in judgment on the question of whether Rwanda is a safe country, and that is an inappropriate activity for Parliament.

I am in favour of one or other of the proposals of the noble and learned Lord, Lord Hope, in Amendments 15 and 16, or the monitoring committee—subject to my anxiety about how it would work. I strongly submit that we should not let the Minister off the hook; he or she should be subject to judicial review.

Of course, one has great sympathy with what the noble Baroness, Lady Jones of Moulsecoomb, said. However, our attitude—although it sticks in the gullet—nevertheless has to be to try to make this Bill work. My own view is that, if you are going to do offshore processing or deportations to safe countries, the one thing you have to be sure of is that you are acting in accordance with the law.

What makes this Bill so discreditable is not necessarily the policy, which people can disagree with, of offshore processing in third countries, but trying to do something like that in breach of the law. We should be working to get to a point where we are acting in accordance with the law.

[Lord Kerr of Kinlochard (CB)]

I agree with the noble and learned Lord, but I would like to say a word in defence of the amendments in the name of the noble Lord, Lord Anderson of Ipswich. Mine is the louche, unlearned name on the otherwise very learned list, alongside the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile.

We would be in a different situation if the independent reviewer, in a reasoned public document, put forward the case that the country was not safe—that refoulement was happening or could happen and there were not adequate systems to stop it. Here, we are talking about the difficulty of working out what it will be like when the treaty is in operation. Then, the reviewer would be presenting the House of Commons and Secretary of State with a report which, let us say, is critical. Then, it would be more difficult for the House of Commons to conclude that it did not care about the evidence. If there was such evidence, unlike the present situation, the House would have to say, “We reject the evidence”. I therefore stick with my louche support for the learned amendment.

As for the other learned amendment in the name of the noble and learned Lord, Lord Hope of Craighead, I understand it and it seems to have much merit. It has two possible downsides. First, the monitoring committee works for the joint committee, which is strange when you think about it—you might think it should be the other way around. It would therefore be very important, as the noble Lord, Lord Anderson, said, that the monitoring committee’s reports be published in full.

The second possible downside is the composition of the committee. The noble and learned Lord, Lord Hope, spoke about one member of the committee. Another member is Alexander Downer. That seems to me to be a bit of a downer. This is a man who is chairman of Policy Exchange and who invented the Australian scheme. This is the man who pressed hard for push-backs—actually shoving the little ships off to Papua New Guinea—which is something our Royal Navy has always refused to contemplate. The committee has to be comprised of persons independent of both parties. I am not quite sure how independent Mr Downer is of the Government.

My name is also on nine amendments, I have to tell the noble Lord, Lord Anderson, and on the amendment to which the noble Lord, Lord Blunkett, spoke. I see some attraction in the Blunkett scheme. If the Government are convinced that the system in Rwanda is fair and convinced that asylum seekers are given a fair hearing and assessment, why should we not accept that, if they are given asylum status, they should come here? The beauty of this is that he is turning offloading into offshoring. The distinction is one that some of us in the House have not always seemed quite to follow.

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[Baroness Lawlor (Con)]

My Lords, I welcome the Government’s determination to stop the boats, and I commend the provisions to disapply six sections of the Human Rights Act 1998 and to leave open to a Minister of the Crown whether to comply with an interim remedy from a court or tribunal that prevents or delays removal. I wish the Government success and hope the Bill will succeed, but it needs further tightening to avoid potential legal challenges that would prevent it from achieving its aims.

My Amendment 32 therefore is to disapply, for the purposes of the Bill, the relevant international arrangements and other law that prevents the UK from controlling its borders. The first reason for this amendment is a practical one. It is pointless to make a law that is unlikely to work. That, sadly, seems to be the case for the present Bill unless it is amended. The second reason is a deeper one. There is no doubt that there is a popular wish for the small boats to be stopped, and that one of the reasons why the Government were elected was to control our borders. Unless they make a law strong enough to withstand whatever challenge might be brought to it through national or international law, the Government will fail the people on whose support the laws made to govern Britain should be grounded. Trust in the democratic system, with its political parties, Parliament, Government and the judiciary, will be lost.

I do not accept the narrowness of contemporary theory about the dominant position that international treaty law should command. The apparent demand that international law should trump UK law is a form of legal and ideological utopian internationalism.

[Lord Falconer of Thoroton (Lab)]

Is it therefore the noble Baroness’s position that if there were extensive refoulement by Rwanda, that would not be a reason for not having the Bill?

[Baroness Lawlor (Con)]

That is not my view. My view is that, none the less, given the ingenuity of many noble and learned Lords in this House, and members of the judiciary, barristers and solicitors outside this Chamber, there may very well be intelligent and ingenious challenges that will hold up the operation of the Bill. That is why I want to bring forward my amendment.

By contrast, there are treaties that govern trade, diplomatic or military alliances, and they deal with the national interests of a state and, at one remove, its people. Many who advocate the pre-eminence of international law base themselves on theories of universal rights formulated in the heady days of treaty-making in the decades after World War II—for a European world, by and large, and circumstances very different to our own. These arrangements have provided a quasi-legal framework—

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[Lord Jackson of Peterborough (Con)]

Well, I will develop my argument about the tension between domestic legislation, parliamentary sovereignty and the rights and privileges of Parliament, and the international obligations and a universalist human rights regime which many noble Lords seem very content to support in preference to the former.

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting the noble Lord, whose complaint appears to be about supranational bodies. I do not know if he is aware—I am sure he is—that his own amendment disapplies

“any provision made by or under the Immigration Acts,”—

that is domestic law—

“the Human Rights Act 1998”—

that is domestic law—and

“any other provision or rule of domestic law (including any common law)”.

Why is he complaining only about supranational bodies when his amendment seeks to disapply great tranches of domestic law?

[Lord Jackson of Peterborough (Con)]

Well, the noble and learned Lord will be well aware that the Human Rights Act 1998, for instance, arose from the European Convention on Human Rights and the obligations in domestic legislation to that particular convention. I am sure there are other examples—

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[Lord Falconer of Thoroton (Lab)]

My Lords—

[Lord Jackson of Peterborough (Con)]

The hour is late, so if the noble and learned Lord will permit me—

[Lord Falconer of Thoroton (Lab)]

I would be grateful for an answer to the question of what the noble Lord says about

“any other provision or rule of domestic law (including any common law)”.

Nobody could suggest that was derived from abroad.

[Lord Jackson of Peterborough (Con)]

As the noble and learned Lord will know, the amendment is worded such that it is declaratory and unambiguous. I am glad he has allowed me to make the point that the amendment my noble friend Lady Lawlor and I put down is explicit and unambiguous, so that it cannot be misinterpreted further down the line, outside this Chamber in the judicial setting. That is why it is copper-bottomed. It may not be quite to his liking, but it is there for a reason and the wording serves a specific purpose.

I will continue, as the hour is late. As I have explained, the amendment aims to disapply, for the purposes of this Act, the relevant international arrangements and other laws which prevent the UK controlling its borders, as the people of this country have elected their Government and their Members of Parliament to do. To that end, the laws we pass in this Parliament must be clear and unambiguous. The noble and learned Lord, Lord Reed, the President of the Supreme Court, in dismissing one claim in a judgment on 15 November—that of ASM, an Iraqi—said that a court may not

“disregard an unambiguous expression of Parliament’s intention”.

I agree with what my noble friend Lady Lawlor said about the narrowness of contemporary theory and the universalist view, a logical corollary of which leads to a belief in open borders. It is practically impossible, in the current regime, for us to control our borders while we remain encumbered by international obligations which seek to subvert and undermine the sovereignty of this Parliament.

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[Lord Falconer of Thoroton (Lab)]

I completely agree with the noble Lord, Lord Jackson of Peterborough, that we do indeed need to address the immigration problem, but surely it would be better to address it in accordance with the law than in breach of the law.

[Lord Jackson of Peterborough (Con)]

I hope to address the point made by the noble and learned Lord, Lord Falconer. Yesterday, I was in Huntingdon town hall watching a play recreating the trial of Charles I, which took place from 20 to 30 January 1649. Obviously, it did not end well for Charles I, who was arraigned on a charge of treason for making war against his own people. What he really did, of course, was that he usurped Parliament. He grabbed for himself the age-old privileges, that Parliament then said it bestowed upon itself, of a sovereign Parliament. It was the ultimate demonstration of the rights and privileges of that Parliament to put to death for the first time in history its own King. The point is that the sovereignty of this place is a precious thing, and I think that the amendment put forward by my noble friend Lord Hailsham unbalances the three-legged stool that the noble Earl, Lord Kinnoull, who is no longer in his place, referred to in his earlier comments.

I draw attention specifically on that issue to—noble and learned Lords will no doubt be aware of this reference—AV Dicey’s doctrine of the supremacy of Parliament. The eighth edition of the textbook, Introduction to the Study of the Law of the Constitution, was published in 1915. It outlines the concepts of parliamentary sovereignty and the supremacy of Parliament. The three key points of parliamentary supremacy were that: Parliament can make any laws, it cannot be overridden by any body and cannot bind its successors nor can it be bound by its predecessors. The wider point is that we are a dualist Parliament. We do not cut and paste international treaties into law without proper scrutiny and oversight. Obviously, that involves primary and secondary legislation going through the proper procedures in this Parliament. That has been upheld by the Appellate Committee of the House of Lords in its time and of course by the Supreme Court. Treaty obligations have effect in domestic law only so far as they are expressly incorporated into domestic law. The sovereignty of Parliament is fundamental to our rule of law and cannot be circumscribed by international law, opinions or even conventions.

In the case of R v Lyons in 2002—it is a very important point, so I hope noble Lords will forgive me if I read it in full— Lord Hoffmann, stated that

“it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them... It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. ... The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not”.

In Bradley and Ewing’s authoritative book Constitutional and Administrative Law, it is clearly stated that the legislative supremacy of Parliament is not limited by international law:

“the courts may not hold an Act void on the ground that it contravenes general principles of international law”.

Indeed—as the noble and learned Lord, Lord Falconer, will be aware—the Labour Government in 1998 specifically reaffirmed the sovereignty of Parliament in relation to the Human Rights Act.

The amendment that we put down specifically makes that point. As I draw to a finish, I want to say to noble Lords that convention and international treaty obligations can be circumscribed and undermined to an extent by government. I draw noble Lords’ attention, for instance, to the prisoner vote issue of 2005. When I served in the other place, it was very much the settled view across the parties, including the Labour Government and the leader of the Opposition, that we would not accept prisoners who had been incarcerated with custodial sentences over a certain period receiving the vote. That was anathema to David Cameron, the case being Hirst v UK (No. 2) ECHR 681 [2005]. There was no outcry or uproar then; there was a settled consensus in this sovereign Parliament that the British people were not prepared to subsume their views, attitudes and opinions on prisoners sentenced to life imprisonment having the vote, having those civil and human rights that other people did. This issue will come up again when we debate later in this Committee the issue of marriage of whole life-tariff prisoners. One other example of course is that Madam Merkel disregarded the Dublin convention in 2015, allowing over a million Syrian refugees to come to the country in breach of Germany’s obligations under various treaties.

In conclusion, this Bill is of course imperfect; it is flawed. I may not even have voted for it when I was still in the other place, but that is another issue. Some noble Lords clearly want to hobble the Bill, make it inoperable and kill it with multiple amendments. We know that; it is only honest to say so. But the amendment moved by my noble friend Lord Hailsham moves the dial far too much towards judicial activism and away from parliamentary sovereignty. For that reason, I must ask noble Lords to resist it.

Finally, to those potentially assuming a ministerial responsibility later this year on the other side of this Chamber, I say, “Be careful what you wish for”. If Labour is elected to government, it will have to put into place an election manifesto; the people will have given it the faith and trust so to do. To undermine that by subjugating parliamentary sovereignty to international treaty obligations, which may change against the interests of a Labour Government and the British people, is a hostage to fortune. Undermining parliamentary sovereignty may seem a prudent thing to do in Opposition, but the burdens of higher office mean that, one day, the boot may well be on the other foot. For those reasons, I very strongly support the amendment in the name of my noble friend Lady Lawlor and resist the amendments moved by my noble friend Lord Hailsham and the noble Baroness, Lady Chakrabarti.

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[Lord Falconer of Thoroton (Lab)]

Can the Minister say how many times it has been used in total?

[Lord Stewart of Dirleton (Con)]

The noble and learned Lord will not be surprised to hear that I do not have the figure to hand, but I imagine it is readily available from Westlaw.

The noble Lord, Lord Hannay, said, “Answer yes or no, does our word continue to be our bond?”, or words to that effect. It continues to be our bond within the circumstances of the incontrovertible constitutional position set out in Clause 1(4)(b). The United Kingdom and this Government take their obligations—