Safety of Rwanda (Asylum and Immigration) Bill

Lord Frost Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

[Baroness Lawlor (Con)]

My Lords, I support the aims of the Bill and I hope that it—and they—will succeed, that it will not be challenged and that there will be no further obstacles put in the way of removing people who come to this country illegally and by these dangerous routes.

My Amendment 17 would leave out Clause 2(5) and substitute the text on the Marshalled List. The aim is to tighten the Bill on what may

“prevent or delay the removal to Rwanda of an individual”

under any of the Immigration Acts, the Human Rights Act 1998,

“EU derived law and case law … under sections 2 to 7 of the European Union (Withdrawal) Act 2018”

and

“any … provision … of domestic law (including … common law), and … international law”

relevant to the aim, so as to limit legal challenges to the Bill. I do not share the views of those who say that the Bill contravenes the rule of law. Their view rests on assumptions about the role of international law, its place within our own system, the creative approach of the Strasbourg court in applying the convention and the tendency now to accord something of a primacy to courts over Parliament.

These assumptions are contested within the legal profession itself. I will refer to one KC, Anthony Speaight, whose paper was published at the weekend by Politeia, of which I am research director. I therefore declare a special interest in the matter. Speaight explains the comparative novelty of the view, which he dates from Lord Bingham’s 2010 book, that the rule of law requires adherence to international law.

I am not a lawyer. I approach the question as a historian of British political and constitutional history. It is a history, by and large—and certainly in the era since the franchise was extended in the 19th century—of the interplay between Executive and Parliament, with the Government accountable through Parliament to the will of the people, even before the extension of the franchise. At the moment, both the Government and Parliament are intent on being accountable on the matter of curbing illegal immigration. But they are prevented by laws and the judiciary that operates them or, as in the case of the Strasbourg court, interprets them in a manner that takes from and does not protect their liberty, on which good law is based—the freely expressed will of the people who are governed.

On immigration, legal and illegal, the people have spoken loud and clear. They want Britain’s borders controlled and the flow of immigration curbed. Parliament has passed the laws to bring such control, but each Bill it brings forward meets a challenge in the courts. Is removal to Rwanda to be stopped not by a recalcitrant authoritarian monarch or an oligarchic, aristocratic, landowning Parliament, as in the past, but by a judiciary acting—I do not doubt in good faith—to give effect to a cocktail of legislation binding this country from an era whose laws are not our own and from times that are not our own?

There are practical limits to what a good Government can achieve. It is recognised, perhaps more clearly by voters than by rulers, that uncontrolled immigration facilitated by the obstacles now put by the courts, often—as in the case of illegal immigration through asylum claims—has consequences for the economy in terms of the budgetary costs. It puts demands that cannot be satisfied on Britain’s domestic arrangements—not just for processing claims but on every manner of the support that the UK’s people have over the centuries shown to those who, for whatever reason, come to make their lives in this country.

If our constitution is to survive the onslaught of legal challenge, the will of Parliament, reflecting the mandate of the voters, must triumph and, with it, the stability, transparency and accountability it has brought to Britain and its people, rather than be challenged on account of international or our own laws.

This country is no outlier. Across the channel, the political systems of western European neighbours are buckling under the political immediacy of uncontrolled immigration, each seeking to exploit or avoid the system to which in law they are bound under EU law, convention law and the mass of internal legislation to which these have given rise. They also have to take account of Schengen.

Take the case of France. Its political system was practically frozen for two years, haggling over an immigration Bill that many see as promising too little, too late. The problems with which it grapples are immense. Constitutional arrangements and stability are under threat at different levels. Departments are pitted against national powers, as in the recent stand-off with some mayors, who refuse to accept and look after unaccompanied minors because they have no ability to do so. At government level, against the ruling of the Strasbourg court, it is voters against the traditional systems of the political parties, the republicans and the socialists.

In this country, we are free to make our own laws. Other noble Lords will speak to their amendments on the same theme. My amendment aims to tighten the Bill and to pre-empt further challenge. As the Minister mentioned earlier, a core principle and aim of the Bill is to prevent further challenge to the workings of ordered, representative and accountable democracy. It aims to promote the aims of the Bill to delay illegal and unsafe crossings and deter the horrid loss of life, such as the death of a little girl of seven in freezing waters in the channel on Sunday night. I therefore beg to move.

[Lord Frost (Con)]

My Lords, I will also speak in favour of Amendment 17, tabled by my noble friend Lady Lawlor, to which I have added my name. As I said at Second Reading, I support the Bill. I am afraid that the Rwanda policy is a bit of a Heath Robinson arrangement. It shies away from some of the tough decisions needed to solve the problems. But I support the Bill because it is the plan we have, and we must hope it makes a difference.

It can certainly be improved. Most of the amendments discussed today would make it worse rather than better, and less effective rather than more effective. Amendment 17 is one of the few exceptions to that. It aims to provide a more clearly drawn Bill—one that can withstand challenges and fulfil its purpose more effectively, by making clear that no other legal provisions of any kind, whether in domestic or international law, can be used to frustrate the policy.

I do not want to repeat issues that have already been raised in Committee and discussed again at length today, but I will briefly explain why I support this amendment and then make one comment based on my involvement in recent years in the intersection between international and domestic law.

First, it is absolutely clear that this Parliament may legislate against international law, and indeed the Government may act in contravention of international law. As we have already heard, Clause 1(4) makes that clear and nobody is seeking to amend that. It is a long-standing, fundamental element of our constitution. It is not some sort of weird, UK-specific provision; there is good reason for the dualism in our system. First, otherwise Governments could act to create domestic law merely by signing an international treaty and thereby sidestep normal democratic processes. Secondly, it reflects the reality that international treaties are in practice very difficult to adapt to changing conditions because all the parties must agree to changes. It has been suggested by some noble Lords today and in previous debates that that is what should happen and that we should seek to renegotiate the international framework. The refugee convention, for example, has 149 state parties, including such well-known supporters of international law as China, Russia and Iran. Are we going to wait for them all to agree to amend this framework? We are clearly not, but if national Governments accept that they can deal with pressing national challenges only by renegotiating these treaties, they are in effect abandoning their duty to govern their own countries on matters of huge importance.