Safety of Rwanda (Asylum and Immigration) Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Bellingham (Con)]

I respect enormously what the noble Lord says. I would just push back slightly. The RPF and Kagame have a huge amount of support. They are running a very strong Government and when that Government sign treaties such as this one, I am confident that they will do their best to uphold their terms. I look forward to carrying on and making concords with the noble Lord, and to what the Minister will say in a moment.

[Lord Falconer of Thoroton (Lab)]

My Lords, the power of this debate has been absolutely extraordinary. I think the House very much admires the noble Lord, Lord Sharpe of Epsom—the Minister—who looks to me like a man alone today. I very much hope that he will be able to produce something.

I support all the amendments. Listening to the debate, I was struck by one exchange which the noble Lord, Lord Purvis, started and the noble Lord, Lord Deben, followed up. I have wondered why the Government had drafted the Bill in the way that they have. By that, I have in mind its extraordinary beginning, which says:

“The purpose of this Act is to … deter unlawful migration”.


The next subsection begins “To advance that purpose—”, and then the Bill sets out the fact that this agreement has been entered into. This is obviously not there for political reasons only. It must be there to send a message to the courts that have to construe it. I am assuming—I very much hope that the Minister will confirm this—that it is in there not for political but for legal purposes. It is to send the message to the courts as to what the purpose and framework of the Bill is.

If that is right, I assume that what the courts are supposed to do is to construe this very unusual Bill in the context of its purpose. The courts are being asked, very unusually, to exclude the courts from determining whether Rwanda is a safe country. They are being asked to do that to deter illegal immigration. The exchange between the noble Lords, Lord Purvis and Lord Deben, underlined completely that there are certain categories of people where deterrence never comes into it—for example, the person who is being trafficked or the modern slave.

Presumably, having put all this material into the Bill, the Government intend that the courts should construe it in accordance with its purpose, giving an appropriately targeted meaning to these exclusions of court intervention. If it is absolutely apparent for an individual that deterrence could not possibly be given effect to by the Bill or its terms, obviously its unusual terms do not apply. Can the Minister confirm that the purpose of all these strange provisions—I have in mind Clause 1—is so that the courts have a very clear steer as to what the purpose is, and that they will construe the Bill in accordance with that purpose?

[Lord Purvis of Tweed (LD)]

My Lords, Mary is 19; she is in Gezira, in Sudan, just by the Ethiopian border. She has been offered employment as domestic staff in Dubai and her passport is taken away for the journey. The employment agency that recruited her from the refugee camp—because she is displaced, like many hundreds of thousands in Gezira—have also taken a record of her family and where they are from, including her grandparents, who are in Darfur. En route to Dubai, she is told that she will no longer work in domestic staff with a named family; she is now going to be in hospitality, and she is quite excited about this. However, on the way, she is rerouted to Europe because her agency said that the hospitality company and the family are no longer able to accommodate her, so she has an alternative job. She will now be going to Birmingham in the UK. This is an extremely long journey for her; she has no choice, of course, because she does not have any papers or a passport. Now that she is in a situation where she is really concerned about how she is getting to Birmingham and for her own safety, she is reminded that those who arranged the travel—originally to Dubai, remember—know where her family are. When she arrives, it is not hospitality in Birmingham—it is prostitution.

This Bill, and the Illegal Migration Act, will mean that she is detained in the UK, not referred to any support, and will be sent to a different country. The noble Lord, Lord Horam, thinks that the Bill will deter her from believing the company who recruited her to Dubai, and she will be deterred from coming to Birmingham. The nonsensity of it is quite hard to credit. We have the national referral mechanism for a purpose, which is to ensure that Mary does not become a double victim, but that is no longer an option for Mary. She is just an example, but it is not a theoretical one, and if noble Lords do not believe me, they should believe the noble Lord, Lord Randall, and the excellent work he does, and I hope the Minister was listening careful to his contribution.

According to the latest Home Office data on the arrival on small boats, between 1 January 2018 and 30 June 2023 some 9% were in this category; that is 7,923 people who were referred to the NRM. They are not all Marys; there are many other circumstances, but they follow a very similar trajectory of being lied to, trafficked and blackmailed. The Illegal Migration Act adds an extra sinister element to this blackmail, because Mary would be able to stay in the UK only if she is actively part of the prosecution of the gang in Gezira on the Ethiopian border, which is an impossibility.

The legislation put forward by the Government in the Illegal Migration Act will also no longer be able to be open to Mary. I asked the Minister at Second Reading how the Illegal Migration Act will continue to protect the victims of trafficking—an assertion he made—and he said he would write to me; I have not yet received that letter, so I hope he will be very clear today as to how these people will be protected. As the noble Lord, Lord Deben, said in his powerful contribution, according to Home Office information,

“the majority (78%) of reasonable grounds decisions for small boat arrivals since 2018 have been positive. Of the 780 conclusive grounds decisions issued, 78% were positive”.

These are not people who are gaming a system or, as the noble Lord, Lord Horam said, illegal asylum seekers: they are victims of a heinous crime, many of whom had no idea they would end up as part of a prostitution racket in England.

On Monday, I pressed the Advocate-General on the Government’s official position on whether Rwanda currently has the safeguards in place for those who would be relocated. I remind the Committee that I asked:

“If the Rwandan Government are ‘working towards’ putting safeguards in place, that means they are not currently in place. Is that correct?”


The noble and learned Lord, Lord Stewart of Dirleton, replied, “It must do”. So the Government have said that Rwanda is not safe yet and I say to the noble Lord, Lord Bellingham, that this is not us saying that Rwanda is not safe yet—the Minister said that it is

“working towards having the safeguards in place”.—[Official Report, 12/2/24; cols. 64-65.]

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Many Members of this Committee have been clear that the most worrying aspect of this Bill, setting aside concerns for the safety of vulnerable people, is that it undermines the independent finding of fact by our own Supreme Court. Clause 2 is at the heart of this problem, as it legislates that Rwanda must be treated as a safe country regardless of the judgments of our independent courts. If the clause cannot be removed, amendments must be included to ensure that the courts can take new evidence into account.

[Lord Falconer of Thoroton (Lab)]

My Lords, every time in this Committee you think that the Government cannot be more flattened than they were in the previous debate, they are even more flattened. I refer to the speech of the noble Lord, Lord Clarke of Nottingham, who in my respectful submission completely flattened the Government’s case for not allowing the courts in.

I support what the noble Lord, Lord Anderson, is proposing. As the Committee understands, it means that if somebody challenges whether Rwanda is a safe country in general, the courts must decide on it. The Government are obviously under no illusions about what such a clause would mean. It would not mean that an asylum seeker, every time they were in trouble and might be about to be expelled, could raise the question generally of whether Rwanda is a safe country; it would mean in practice that, eventually, one case in a high Court of Appeal would definitively decide whether at that time Rwanda was a safe country in general or not.

The practical consequence of the amendment from the noble Lord, Lord Anderson, is that the courts will determine once—and maybe again in a few years’ time if the position has changed—whether it is a safe country in general, and everyone else will be bound by that. The Government accept that, if the issue is whether an individual’s circumstances put him or her at risk, they have the right to challenge in court anyway. By refusing to allow this to happen, they are cutting out a one-off shot by the courts to determine whether Rwanda is a safe country in general.

Why on earth would they not want that to happen, as their case is not that Rwanda might or might not be a safe country but that it is a safe country? Might I venture to suggest a reason why they are behaving in this extraordinary way? It is because it will take a bit of time for the courts to reach that conclusion—maybe two or three months from the Bill becoming law—and in that time there might be a general election and nobody will have flown to Rwanda. Could a responsible Government be willing to put asylum seekers’ lives at risk on the chance that Rwanda might not be a safe country? Obviously not, without a proper examination by the courts.

What I am saying does not challenge the basic policy of deporting to a third safe country or offshore processing—that debate is for another day—but, if the Government are going to do this, to give people confidence in them and to give the world confidence in the UK, surely they should do it lawfully, not unlawfully. They should not be advancing bogus reasons for cutting out the courts, when the courts are there in every other consideration of whether a country is safe. It is very discreditable.

[Lord Deben (Con)]

My Lords, I hope the Committee accepts that I rarely intervene when the lawyers are at it, because I am not of great assistance, particularly to my noble friend of a great many years Lord Clarke. But he asked the Government to tell him of an occasion when this has happened before. I will remind him of one: the court of King Canute told him that, because he was sovereign, he could tell the waters to stop and the tide to go out. Of course, we were never taught it this way round in school, but the truth is that King Canute went to prove to his courtiers that he could not reverse the truth.

The problem with this part of the Bill is that it proposes that the sovereignty of Parliament is able to make a situation true, whether it is or not. In other words, this would be wrong even if the Supreme Court had not ruled that this is not a safe country. It is not part of the sovereignty of Parliament to declare truth; it is part of the sovereignty of Parliament to declare the law—and, in so far as we are sensible, we try to make the law as close to the truth as possible.

Now this Government have done a remarkable thing. There are many bishops on the Bench at the moment, so I will speak with a certain amount of care, but I seem to remember:

“‘What is truth?’ said jesting Pilate, and would not stay for an answer”.


This Government have not even asked the first question. They assert that this is true and, as my noble friend suggested, not only is it true but it will always be true until, I suppose, the Government—because the courts will have no place in this—say that it is not true.

The reason I feel so strongly about this is that I have spent nearly 11 years of my life as chairman of the Climate Change Committee. One of the problems I have faced all that time is people asserting “my truth” —not “the” truth but “my” truth—and that their truth is the equal of anyone else’s truth. That is not the nature of truth. Truth has constantly to be questioned. Doubt is an essential part of faith; you have constantly to question. The Government are proposing a unique situation, which is that we shall never question their decision, at this moment, that Rwanda is a safe place. I am not going to try to say whether I think it is safe or not. I think merely that it should be under constant consideration if we are going to take other human beings out of our jurisdiction and place them somewhere else.

That, if I may say so to my noble friend, is a moral matter. We remove responsibility by doing this, and the one way in which we can protect ourselves is if the place to which we send them is constantly available for questioning. The only place where that questioning can take place is in a court because courts listen to all the arguments, hear all the evidence and make a decision. If you do not like the decision, you can appeal it, but finally you have to accept it. Once you undermine that, I do not see how you can uphold the rule of law anywhere else. Once the Government have said that their truth is true and there is no other truth, we have moved into a position which is entirely unacceptable in a democracy. This Government have to understand that—on this issue perhaps alone—this House will have to stop this Government’s proposal by whatever way. This is our duty. We are not a House which just puts the details of law into some sense. We also have a constitutional position. The Prime Minister made his rather curious statement about the will of the people, but the will of the people can be protected only if this House stands up for the constitution of our nation, and our constitutional position must be that the Government cannot determine truth. Only the courts can do that.

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[Baroness Chakrabarti (Lab)]

I am fascinated by this new “court of Parliament” concept. Anyone who thinks that the Age of Reason ended in 1800 will need to read Hansard tomorrow because, if I may say so, the Conservative Privy Council Benches have perhaps delivered some of the finest contributions to this Committee today. I, for one, will be rereading the noble Lord, Lord Deben, because enlightenment is clearly not a single moment but something that has to be fought for again and again so as not to end up where the noble Baroness, Lady Bennett, warned us. If there is now to be a court of Parliament that is examining the safety of Rwanda on an ongoing basis, I do think the noble Lord, Lord Purvis, should have an answer on what procedures there are, under the Bill as currently drafted, for these monitoring committees to report not just to the Government but to the court of Parliament that is being so elegantly expounded by the noble and learned Lord.

[Lord Falconer of Thoroton (Lab)]

My Lords, before the Minister answers the question, this is a rather unusual court, because it is a court that does not afford the most basic rights of justice to the people who will be affected by the decisions we make. In any other court, if you are about to be exported to a place you say will torture you, you can normally at least have your voice heard; but not in this new court that the noble and learned Lord has just set up.

[Lord Stewart of Dirleton (Con)]

First, as the noble and learned Lord is perfectly well aware, the Bill blocks the possibility of refoulement and of return to any country other than the United Kingdom. In relation to the point from the noble Baroness, Lady Chakrabarti, that Parliament is a court is a familiar and well-known concept; it is a name by which Parliament is well known.

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[Viscount Hailsham (Con)]

I am most grateful to the noble Baroness and entirely agree with what she has said on Amendment 81. My amendment is an additional concept. The concern has become apparent in Committee that, if Rwanda can become safe, it may also cease to be safe. It is important that we should have in place a mechanism for determining if it becomes unsafe, so that the provisions in the Bill cease to operate. That is what my Amendment 82 seeks to do.

I have called it rolling sunsets, but this is what I have in mind: the amendment from the noble Baroness triggers the implementation of the Bill for a period of two years, in the circumstances that she set out, and at the expiration of that period, if the Government want another two years or any other period, they must get an affirmative resolution of both Houses. Before they can get that, the procedure outlined by the noble Baroness must be complied with, including a report from the Joint Committee as to safety. If they want to roll it on for a third period of two years and so on, each time Parliament would be given the opportunity of receiving a report and triggering the extension of the Bill. In that way, rolling assessments of safety could be provided.

[Lord Falconer of Thoroton (Lab)]

My Lords, I strongly support my noble friend Lady Chakrabarti’s amendment, as amended by that of the noble Viscount, Lord Hailsham. It is incredibly important that the Act comes into force only when there is satisfaction that Rwanda has become a safe country and a rolling assessment can be made. I say that subject to the noble and learned Lord, Lord Stewart of Dirleton, indicating to us earlier—we were very excited by this—that he would tell us whether Parliament could in some way reopen whether its judgment on whether it was a safe country had changed. He told us that the noble Lord, Lord Sharpe of Epsom, would tell us how this would work on a later amendment. I anticipate that he will tell us on this very amendment how Parliament can in some way be activated to get rid of it. I am very excited to hear that, because at the moment I cannot see how it could without the amendments of my noble friend and the noble Viscount, Lord Hailsham.

I will raise two points about where we are at the moment. The first is about when the future Act will come into force. Clause 9 says:

“This Act comes into force on the day on which the Rwanda Treaty enters into force”.


One would envisage that the treaty will not enter into force until the Government are satisfied that Rwanda is safe. That is a minimum requirement for a Minister. I assumed that that was the position, but I then had the misfortune to look at the agreement that the country has entered into with Rwanda. It says:

“This Agreement shall enter into force on the date of receipt of the last notification by the Parties”—


Rwanda and the United Kingdom—

“that their internal procedures for entry into force have been completed”.

I understand that to mean that, when the process has been gone through constitutionally in Rwanda and the UK—to ratify, as it were—each country notifies the other that that is the position, and the agreement immediately comes into force.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I also note the Clock and I will make points on the two headings. The first is on Amendment 81 in the name of the noble Baroness, Lady Chakrabarti. The basis for it, according to the Member’s explanatory statement, is that

“This amendment replaces … (an executive act), with a parliamentary trigger”.


The proposal is that instead of having an executive fiat, Parliament and parliamentary sovereignty would be put in its place. Unfortunately, the amendment does not do that. What it does is to take the pen away from the Minister and hand it to the Joint Committee on Human Rights. The reason is that the way this amendment is drafted is that two requirements need to be met. First, the Joint Committee on Human Rights has to report its belief that Rwanda is safe; in other words, if it comes to the conclusion that Rwanda is not safe, or might not be safe, then proposed new subsection (1A)(a) is not satisfied, and it falls there. The second requirement is that

“a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”.

If, for example, both the other place and this House were to take the view that the Joint Committee on Human Rights had got it totally wrong and, in fact, contrary to its view that Rwanda was not safe, it plainly was safe, Parliament could do nothing about it. I am sure that is not what was intended, but it is a fundamental problem in the drafting and in the scheme if what is intended is to hand power to Parliament.

Just to make it clear, if that amendment were made to this amendment, I would still oppose it. The responsibility should lie with the Secretary of State. Let us be very clear about what this amendment would actually do. It would take the pen away from somebody who is elected and responsible to the electorate and hand it to the Joint Committee on Human Rights. I have the greatest respect for the JCHR—I appeared before it when I was a Minister—but it is wrong in principle that it and it alone should have the right to stop this legislation in its tracks. That is the first point I wanted to make.

The second point I want to make arises out of Amendments 35 and 90 and the point made by the noble and learned Lord, Lord Falconer of Thoroton, earlier that this is retrospective legislation. As we are in Committee—although many of the speeches seem to be Second Reading speeches—let me pick up one drafting point on Amendment 35. As I understand it, it would prevent a decision-maker making a decision relating to the removal to the Republic of Rwanda of somebody who arrived in the UK before the Act received Royal Assent. The words

“a decision relating to the removal”

are very broad. Would they include, for example, a decision about how old somebody is? That is a decision that will be needed under the current legislation and under this legislation. I would have thought that it cannot be intended that Amendment 35 would stop decisions which have, so to speak, that dual purpose. That is a drafting point.

The more fundamental point is whether this is retrospective legislation at all. I listened very carefully, as I always do, to the noble and learned Lord, Lord Falconer of Thoroton. With respect, I fundamentally disagree with him that this is retrospective legislation. What is retrospective legislation? The House of Commons Library puts it in these terms—this is from a paper it published in June 2013, but these are fundamental principles that do not change over time—citing Craies on Legislation, ninth edition. It says that retrospective legislation is generally defined as legislation which

“takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past”.

The two classic examples are, first, that conduct which is lawful when you do it is not later made unlawful; and, secondly, that the penalty for unlawful conduct when you do it is not rendered greater retrospectively. It is right to say that we have legislated retrospectively in the criminal context—rarely, but we have. The War Crimes Act 1991 and the International Criminal Court Act 2001 are examples of that. However, none of this is retrospective legislation. The example the noble and learned Lord gave is that somebody might have an argument which they could put in court that, for example, “I’ve got a brother here, I’ve got somebody here”. That is not a vested right.

[Lord Falconer of Thoroton (Lab)]

No. The noble Lord has misunderstood my argument. You are in this country before the Act. You have a right in the sense that you are, in fact, subject to persecution. You would have to advance the argument to get the right, but your right is a right to stay here, and a right to stay not on the basis that you may be exported to Rwanda. That is a right. It might not be viewed by the law as a “vested right” in the sense that he is referring to, but it is plainly within the spirit of retrospective legislation.

[Lord Wolfson of Tredegar (Con)]

A very good touchstone of when lawyers realise that—if I may respectfully say—the argument does not quite work is when they start referring to spirits of things. With great respect, that is not a vested right. If you have a right to asylum, you have a right to asylum. Under this Bill, you also have a right to asylum. What this changes is where you have the right to asylum.

[Lord Purvis of Tweed (LD)]

The person who would have a right to asylum in the UK under this Bill would no longer have the right to asylum in the UK. It is completely different. They may have a right to asylum in Rwanda, but that is not the right that they had when they were here which is going to be taken away from them.

[Lord Falconer of Thoroton (Lab)]

Will the noble Lord explain why if I come here and am entitled to asylum that is not a right?

[Lord Wolfson of Tredegar (Con)]

The right is to make a claim for asylum. That is the vested right absolutely. The right is the right to asylum.

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[Lord Falconer of Thoroton (Lab)]

A right to have possession of my property requires me to go to court and get it. It is still a right, even though I have to ask for it.

[Lord Wolfson of Tredegar (Con)]

I am sorry; that is totally different, because the courts—I will give way to the noble Baroness.