Safety of Rwanda (Asylum and Immigration) Bill

Lord Kirkhope of Harrogate Excerpts

2nd reading
Monday 29th January 2024 Lords Chamber

[Lord Kirkhope of Harrogate (Con)]

My Lords, it is right that we approach this debate with seriousness. Once more, the responsibility to ensure real scrutiny of a Bill rests with our House.

Today, the Government are attempting to rectify what the UK Supreme Court has identified as

“serious and systemic defects in Rwanda’s framework and procedures for processing asylum claims … Its past and continuing practice of refoulement and the changes in procedure, understanding and culture needed”

before Rwanda can be considered a safe third country.

However, the Bill, as it stands, risks entangling us in a complex web of ethical and legal dilemmas that could diminish our international reputation, betray our duty to the genuine asylum seekers, undermine the rule of law and place our courts in an exceedingly difficult position. It risks creating a legislative or legal fiction. Much has been said about the infamous late-night pyjama injunctions, or Rule 39 orders, and the meddling of the so-called foreign courts. Let us be clear: the European Court of Human Rights is not a foreign court; it is a shared court. The UK was instrumental in its establishment and has significantly contributed to its jurisprudence. A British judge sits on the court and British lawyers are involved in its administration.

In Rule 39 orders against the UK, the context is that the court grants only 2% of requests. Last year, there was just one. Also, last year, the court found the UK in violation of the ECHR on only one occasion—the 38th lowest of all member states. Under the Bill, Ministers will have the power to ignore Rule 39 orders. Neither these new powers nor any amendments to the Civil Service Code would alter our international legal obligations. Should a Minister opt to disregard interim measures, this would place the UK in direct violation of its treaty obligations. How can the UK continue to be a global advocate for the rule of law—as many others have said—and honouring international commitments if this happens?

To illustrate the unprecedented nature of such an action, I point out that no member of the Council of Europe has ever taken steps to disregard ECHR rulings or interim measures except Russia, and that is not good company to be in. I am not alone in being perplexed by the inconsistencies that this policy and this Bill will introduce. Our treaty with Rwanda obliges it to adhere to the refugee convention, yet the Bill explicitly exempts the refugee convention and other international obligations from consideration within the UK.

The Government may not thank me for doing so, but I feel compelled to remind the House of the agreement with Rwanda, which included an intent to

“resettle a portion of Rwanda’s most vulnerable refugees”

here in the UK—a process that, as we know, is already under way, with numbers increasing. Even if the plan is enacted and we finally have refugees going to Rwanda, the numbers will be modest, in the hundreds at most. By comparison, in 2023, almost 30,000 irregular migrants entered the UK via small boats.

Even so, it is perfectly fair to ask those of us who dislike these provisions, “How are we going to deal with the rest?” There are many tools available to the Government. We simply need to know which tools to use and how to deploy them better. The Government have actually made progress and I commend them for that. Small boat crossings, as my noble friend the Minister has said, are down by 36% compared to 2022. The grant rate for asylum decisions in 2023 was 67%, down 9% on the year before. When I was Immigration Minister myself it was actually 19%, applying the criteria of the 1951 refugee convention fairly but firmly.

To clear the backlog, the number of staff working on asylum cases has increased significantly, and 112,000 asylum cases were processed in 2023, the most in any year since 2002. The Government have signed an agreement with Albania for removal of their nationals and to strengthen co-operation. To date, 5,500 Albanian migrants have been returned. The deal with France last year has greatly enhanced co-operation between our countries, and further agreements were secured—correctly—with Bulgaria, Turkey, Italy and Georgia. All these tools—and a number of others—have been, and will continue to be, more effective in stopping the boats than these Rwanda proposals. The Government should focus on these instead, and I believe the country would be grateful.

My remarks today stem from a deep sense of regret and disappointment in witnessing how we have become embroiled in what can be described only as an unhealthy obsession with Rwanda. This fixation appears to be an attempt to satisfy certain factions and individuals, who seem to possess neither the depth of understanding nor the nuanced appreciation of the complexities involved in asylum and immigration matters. For them, nothing will be enough—neither the Bill nor ever-more radical ideas. If we are to restore public confidence in our ability to manage our borders, we should focus on the other tools available and avoid the inevitable problems which will most certainly ensue if we persist with these proposals.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Kirkhope of Harrogate Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Scriven (LD)]

My Lords, I am again a poor substitute for my noble friend Lord German. This group is a suite of amendments that look at disapplication of not just the Human Rights Act but whole swathes of domestic law—I know that the Human Rights Act is domestic law. Some Members of your Lordships’ Committee may contest that, but it is a sovereign Act of this Parliament. We must always remember that it is not something foisted on us by any international body or court.

I will start with what this raft of amendments is about. Let us take a look at the Bill, starting with Clause 2(5), which is a “notwithstanding” clause. In layperson’s terms, it means that if an individual decides that Rwanda is not a safe country in their particular case, a court or tribunal of this country can no longer decide whether Rwanda is a safe country and an individual cannot bring a complaint that they are being removed to Rwanda, or any claim that the Republic of Rwanda will not act in accordance with the Rwanda treaty—not that they will not enforce the treaty. Everything could be in place, but Rwanda will not act in the spirit of the treaty.

Furthermore, the “notwithstanding” clause says that the court can look at any provision made under any immigration Act. Like many other noble Lords, only a few months ago I debated the Illegal Migration Act for hour after hour and was told categorically by the Government Front Bench that it would stop the boats. So here we are, with another piece of legislation, but that piece of legislation cannot be enacted or looked at by the courts or an individual. Neither the Human Rights Act—I know that Clause 3 is about the disapplication of the Human Rights Act—nor

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

can be used by anybody who has arrived by an illegal route to protect them from being removed from this country to Rwanda, and nor can

“any interpretation of international law by the court or tribunal”.

This clause usurps the role of domestic courts. Let us be clear: the clause is not about international law or treaties. It usurps the role of domestic courts by not permitting them to do their job, tying their hands by not permitting them to apply key elements not just of the Human Rights Act but of any domestic law. Our courts and tribunals would not be able to consider claims about the general safety of Rwanda and grant interim remedies to prevent the Executive acting unlawfully.

More generally, it may be worth thinking about what the Government are scared of. If this treaty deals with every single issue that the Supreme Court said was going to happen, surely the organisation that should judge whether that is the case is the Supreme Court. It should determine whether its judgment and concerns have been addressed. So what are the Government scared of? I ask the Minister very carefully: if the treaty is enacted and all provisions are enshrined in Rwandan law and in the practice of administration in Rwanda, why are the Government scared of putting it before the court to decide whether Rwanda is a safe country? I am not a lawyer, but logic would dictate that that is what should happen: the courts should determine that the Supreme Court’s concerns have been addressed.

This is a very worrying symptom of what I call a creeping executive authoritarianism, or what the father of the noble Viscount, Lord Hailsham, called the “elective dictatorship”. It seems the Government feel that they have no constraint on their processes or decisions and that the legality of their power cannot be challenged in the courts. That is exactly what those clauses do: they take away the rights of individuals to use our domestic law to determine whether they are safe to go to Rwanda.

On the view that this is about the disapplication of only the Human Rights Act, it needs to be absolutely understood by your Lordships’ Committee, and those outside, that this is a complete disapplication of most of the domestic law of this land. That is what is happening when determining whether, in very limited cases, an individual can go before the courts or tribunals.

I know that the noble Lord, Lord Kirkhope of Harrogate, has a quite interesting amendment in this suite on Section 4 of the Human Rights Act and its disapplication. I will listen carefully not just to the noble Lord introducing his amendment but particularly to the Front Bench’s reply to the interesting suggesting within that amendment. I also look forward to hearing what I am sure will be the very interesting thoughts of the noble Viscount, Lord Hailsham, who added his name to the Clause 3 stand part notice. I look forward to all noble Lords’ contributions to the debate on this group.

Let us be clear: this is about not just the disapplication of the Human Rights Act, which is domestic law, but the disapplication of whole rafts of domestic law in the very limited cases where somebody can put their application about the safety of Rwanda before a court or tribunal. I beg to move.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I will speak to my Amendment 33 to Clause 2. I acknowledge the support of the right reverend Prelate the Bishop of Chelmsford, who is in her place and may well wish to contribute later. The amendment addresses a critical aspect of our commitment to upholding human rights and the rule of law, ensuring that our legislative process remains transparent and, as was referred to recently by my noble friend the Minister, accountable and responsive to judicial declarations of incompatibility under the Human Rights Act 1998.

Before I delve into the specifics, I note that, as I stated at Second Reading, there are many tools available to our Government to alleviate the present pressures on the asylum system, but we need to know which tools to use and how to use them properly. I am pleased to take the opportunity to commend the progress made by the Government in reducing the number of small boats crossing the channel by using return agreements, dealing with backlogs, bilateral co-operation and other measures, including employing more staff and training them to interpret the criteria for granting asylum rather better than has been the position previously.

All these things have been done and are very important, but return agreements dealing with backlogs and bilateral co-operation are important. Of course, there is an issue on the questionable policy of sending asylum seekers to Rwanda for processing and permanent settlement. I am concerned that there is—in some quarters, anyway—some fixation which we are having to deal with in the Bill and in these amendments, a fixation which I think is unnecessary. This amendment seeks to rectify a significant issue that arises if a court declares—I emphasise the word “if”—our legislation incompatible with convention rights, protected by the Human Rights Act 1998.

As it stands, there exists a potential for delay in addressing such declarations, which could undermine the effectiveness of our legal system, and indeed further erode public trust in our commitment to human rights. I hope that what I am going to suggest will be helpful to the Government. It is certainly not an attempt to wreck the Bill or slow it down in any way, but to address this concern, the amendment proposes that a Minister of the Crown should lay before each House of Parliament a statement under specific conditions, which are, first, if

“a court makes a declaration of incompatibility, under section 4 of the Human Rights Act 1998”,

and, secondly, if

“the Minister has not laid a draft remedial order or a remedial order before Parliament, under section 10 of the Human Rights Act 1998”.

This would ensure timely action and prevent unnecessary delays in addressing the human rights concerns that may be raised by the judiciary.

The statement required by the amendment must provide clear reasons for the Minister’s proposed course of action. Specifically, it must address whether Ministers consider there are compelling reasons for proceeding with the policy, should a declaration of incompatibility be issued, and whether they intend to make a remedial order in response to such a declaration. This transparency ensures accountability and allows Parliament, including our own House, to scrutinise the Government’s decision-making process. I know that many noble Lords have raised this as a major concern.

Furthermore, the amendment sets a strict timeline for Ministers to lay the statement before Parliament, requiring it to be done within 28 days of the court’s declaration of incompatibility. Additionally, within three sitting days of laying the statement, a Motion must be moved by a Minister of the Crown for debate in each House. The Motion must require the House to consider the statement laid before Parliament and to indicate whether it agrees with it. This ensures that Parliament promptly considers the Minister’s proposed course of action, provides an opportunity for debate and scrutiny and, importantly, ensures that the voice of Parliament is heard. We have a duty to ensure that Parliament is engaged in such circumstances. In essence, the amendment aims to prevent delay in addressing judicial declarations of incompatibility and promotes a more responsive and accountable legislative process.

This amendment not only strengthens the framework but emphasises the importance of giving Parliament—including our House—a greater role, should the courts offer a declaration of this kind. I hope that it will be considered carefully by my noble and learned friend the Minister, and not rejected out of hand.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I find it a little odd for the noble Baroness to say that she is criticising the Government for disapplying various provisions of the Human Rights Act, yet criticising us for not, as it were, expressly disapplying Section 4. As we have heard, the reason for not disapplying Section 4 is clear; namely, it demonstrates that the Government are complying with their obligations on the international plane to provide a right of a remedy under Article 13 of the treaty.

[Lord Kirkhope of Harrogate (Con)]

I am sorry, but as I listened to the noble Lord, I was getting the impression that he was agreeing with my amendment to a large extent, except perhaps for my suggestions that we move the process on a bit more and improve the accountability with this House. Is that not the case? He said that my amendment serves no purpose; I think that it serves a very valuable and important purpose to give reassurance to this House that Parliament will have some say on, and be involved in, these processes; otherwise, I think that he is trying to minimise the impact of these matters and the way in which we can look at them.

[Lord Murray of Blidworth (Con)]

I am afraid that the amendment still has no purpose. The point is, as I hope I demonstrated to your Lordships’ Committee, that the decision as to whether and how to act on a declaration of incompatibility is clearly set out in the Human Rights Act, and it rests with a Minister of the Crown. This Parliament does not have a role other than to consider, under the procedure for a remedial order, whether a decision is taken to lay one. That is the law as it stands and as it should be, so this amendment is unnecessary.