Safety of Rwanda (Asylum and Immigration) Bill

Lord Garnier Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I want simply to say a few words in support of Amendments 3 and 7 in my name, and to express more general support for the position adopted by the noble Baroness, Lady Chakrabarti.

On Amendment 3, it is simply untrue to state that it is the judgment of Parliament that Rwanda is a safe country. That may be the opinion of the House of Commons—I was a Whip there for many years, so I know the forces that are put in place to assure the opinion of that House; the “elective dictatorship” of which my father spoke—but what is absolutely certain is that it is not the opinion of this House. We know that to be a fact because of the vote that took place here on 22 January.

In my opinion, we should not put into a Bill a statement that is manifestly untrue. Hence, I put down amendments that state the truth: that the safety of Rwanda is the opinion of the Government. That is the truth, so why on earth should we not enact that simple truth, rather than commit what, in other circumstances, would be described as a lie?

On Amendment 7, we should state in clear terms what we are doing. We are, in fact, using a statutory and untrue pronouncement to reverse a recent finding by the Supreme Court. I have the greatest respect for my noble friend Lord Howard; we were colleagues for very many years, and he was in the House of Commons for 27 years. I beat him, as I was there for 30 years, but he was a lot more distinguished than me. However, to try to say that the Supreme Court did not make a finding of fact is to turn the situation on its head. It expressed an opinion as to fact, as juries do in criminal cases—and an opinion as to fact is a finding of fact.

I will take a slightly broader view. I happen to share the view—I suspect it is pretty general in this House—that both legal and illegal migration are far too high and should be reduced. I share the very correct intention of the Government to deter illegal migration, which we need to do. My objection is not to the purpose but to the means being advocated, which is wrong in principle and will not succeed. However, it is clear to me, as it is to the noble Baroness, Lady Chakrabarti, that the Government have decided to push ahead and will doubtless reverse our amendments in ping-pong.

In the spirit of compromise, I will make some positive suggestions, as the noble Baroness did. Leaving aside the issue of principle, I am concerned that the Government are seeking to enact, without any proper assessment, their judgment as to whether Rwanda is safe. That means not just whether the treaty is put in place in Rwanda, but whether its provisions are implemented over a period of time—and whether we can for other reasons say that Rwanda is safe. That, we are entitled to do. To be clear: that is not a one-off assessment; it has to be a continuing assessment, because things can change.

The other thing we need to be absolutely clear about is whether the policy objective is working. We are told that the purpose of the Bill is to reduce illegal migration across the channel. That is a judgment—I do not happen to think it will work—but one thing is certain: we do not know now whether it will work, but in the course of time, we may be able to form a view.

My concern is that the Bill provides no mechanism for a continuing assessment of both the safety of Rwanda and the success of the policy, and I believe that Parliament is entitled to demand a continuous and authoritative assessment. We can argue whether it should be based on the European body; or, as Amendment 81 suggests, it should be done by the Joint Committee on Human Rights; or, as I have in the past suggested, by a special Select Committee appointed for the purpose. However, there is a way forward. The Bill does not come into operation without both Houses of Parliament triggering it by an affirmative resolution, and they can do so only once a report has been received from whatever assessment monitoring board we put into place.

That is not enough because, as I say, we need continuing assessment. Therefore, I contemplate something like this. The initial trigger should be, say, for two years. It could then be renewed for two years by another statutory process—affirmative resolution—on the basis of a further report; and then again, if the Secretary of State thinks he will get away with it. That way, we will have a continuing process of assessment, which would give this House and Parliament in general something on which it could honourably proceed.

I would like to think that my noble friends on the Front Bench will show a certain degree of flexibility. If they do not, it may be quite difficult to persuade their critics to be flexible.

[Lord Garnier (Con)]

My Lords, I briefly want to follow my noble friend Lord Hailsham in his remarks. Had he been the presider in a three-person court, I would have been very happy to say that, having heard his speech, I had nothing else to add. However, since we are here, your Lordships have the disadvantage of hearing what I have to say. Like my noble friend Lord Howard of Lympne and my noble friend Lady Helic, I regret not being present at Second Reading and apologise, but I have read the Hansard of the debate.

I am always reluctant to disagree with my noble friend Lord Howard, but he took too narrow an approach to the questions before us. I use Clause 1(2)(b), which is the subject my noble friend Lord Hailsham attacks, as a hanger on which to make a few remarks. I think, if I understood him correctly, that my noble friend Lord Howard said that Parliament can essentially do what it likes, and of course he is perfectly right. Parliament can be as foolish as it likes. It can pass a law saying that all dogs are cats, but that does not make all dogs cats. It can pass a law saying that Rwanda is a safe country, but that does not make it a safe country. In addition—this is where I agree with my noble friend Lord Hailsham—it is for the Executive to advance their policy, whether it is a good policy or a bad one. It is for the Government to say that it is their policy that Rwanda is a safe country to which to send failed asylum seekers. If the Government then wish to have their view tested by Parliament, again, they can go ahead and do it.

Therefore, what the Government are proposing as a matter of policy is not a constitutional outrage, but the way in which they are writing it down in Clause 1(2)(b) is, if I may respectfully say so, just plain silly. It is worse to be silly than it is to be guilty of a constitutional outrage, and this is not a constitutional outrage but just plain silly.

Ridicule is a more powerful weapon than the constitutional and legal arguments of any number of lawyers. As the noble Baroness, Lady Chakrabarti, advances in one of her amendments, it would be helpful to have a UNHCR opinion on the safety or otherwise of Rwanda. However, I have a feeling that exporting government policy to the UNHCR is not a good idea. It would be helpful to have that opinion, but it is not essential. The Government must stand on their own feet, bring their policy to Parliament and have it tested. It will survive or not on the merits of the facts. The assessment of whether Rwanda is a safe country must be for the Government to consider and for Parliament to agree; we as a bicameral parliamentary body are not equipped to reach those sorts of conclusions. We can agree or disagree with the Government, but we are not equipped in a presidium to reach a conclusion on whether the Republic of Rwanda is a safe country as a matter of fact.

I do not wish to undermine or underestimate the hugely difficult political problem that the Government face with illegal immigration and the making of unsound asylum applications. Nor do I wish to undermine their genuine and very proper decision and policy to stop the boats. However, if we are to stop the boats, and if we are to reduce the amount of illegal immigration and bogus asylum applications, the Government would go a long way if they had the confidence of their own convictions and allowed Clause 1(2)(b) to say that that the Bill gives effect to the politically expedient policy of the Government that the Republic of Rwanda is safe, rather than trying to shift the responsibility for that opinion on to Parliament. Parliament may come to agree with it, but the initial policy is one for government. To that extent I wholly agree with my noble friend Lord Hailsham.

[Lord Anderson of Ipswich (CB)]

I am another supporter of Amendment 3. Clause 1 is an example of the current vogue for starting Bills not with operative provisions but with preambular statements of the obvious, a custom which is always irritating but normally harmless. However, there is harm, not just silliness, in Clause 1(2)(b) with its rather grand invocation of

“the judgement of Parliament that the Republic of Rwanda is a safe country”,

a judgment for all time, apparently, that there is no provision to revisit or change. That invocation is unnecessary and contrary to principle. It is unnecessary because there are other ways for Rwanda to be declared or deemed safe. The Secretary of State could be entrusted with the decision or, if it really is necessary for Parliament to take it, there could at least be a power for the Secretary of State to amend it in the light of changed conditions, as was the case with Section 75 of the Illegal Migration Act 2023.

It is contrary to principle because it requires us to come to a judgment on a fact-specific life-and-death matter on which, frankly, we are ill equipped to adjudicate. Of course, this is not the first time that such a thing has happen. It was tried in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, when the countries of the European Economic Area—all signatories to the ECHR—were deemed, beyond rebuttal, to be safe. That experiment, a requirement of European Union law, was not a successful one. Its unwieldiness was demonstrated in the case of Nasseri. The Judicial Committee of the House of Lords dismissed a challenge to the safety of Greece but, through the noble and learned Lord, Lord Hoffmann, whom I am delighted to see in his place, indicated that the courts might have to issue a declaration of incompatibility if the deeming provision was contradicted by the evidence. The issue was sensibly addressed in the Nationality and Borders Act 2022 by transforming the irrebuttable presumption into a rebuttable one.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I do not rely on that at all. As I tried to explain, a variety of aspects of the UNHCR’s work are included in our safety assessment—and that is just one of them.

[Lord Garnier (Con)]

I apologise for interrupting, because I know that my noble friend the Minister wants to sit down for good. When he spoke to Clause 1(2)(b), was he speaking for Parliament or the Government?

[Lord Sharpe of Epsom (Con)]

As my noble and learned friend is aware, I speak for the Government.