Safety of Rwanda (Asylum and Immigration) Bill

Lord Purvis of Tweed Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, I want to speak very briefly to group 5 amendments. Specifically, I go back to the answer that the noble and learned Lord, Lord Hope of Craighead, gave to me earlier. Yes indeed, the plenary court—

[Lord Purvis of Tweed (LD)]

It might just be helpful if the noble Lord would apologise to my noble friend, to say that he was not in the Chamber at the commencement of this group.

[Lord Jackson of Peterborough (Con)]

It was very observant of the noble Lord, Lord Purvis, but I was in here. I left to get my notes that I needed, but I am touched by his interest.

On the issue from the noble and learned Lord, Lord Hope, the plenary session on 13 November did indeed undertake to de-anonymise the individual single judges involved in adjudication, but that has not yet happened, and there is no timetable for that. So I suppose each of us is half right.

The important thing to state, again, is that the wider context, as touched upon by the noble Lord, Lord Green of Deddington, is that the public are exceedingly concerned about the issue of illegal migration. It cannot be brushed aside when we talk about arcane legal and legislative points. People are angry and they want answers. As a Parliament, we have to find a way to face up to those very difficult issues. The point I made a week or so ago is that if there is a change of government, the Labour Party is most likely going to have to face those challenges as well. Instead of just criticising the Government, it will have to come forward with some really significant proposals to address those issues.

The Strasbourg court, as it happens, has never asserted or conferred, via member states, the right to authorise the court to grant interim relief in terms of the ECHR convention treaty. Indeed, domestic courts—the Supreme Court and the Appeal Court—have found quite the contrary, as was mentioned by the noble Lord on the Cross Benches earlier.

There is a concern about this battle between parliamentary sovereignty and accountability in this House and in the other place, and the idea that a decision which could have very profound public safety ramifications—this is a tiny minority, but it could possibly—is taken in foreign court with an anonymous judge where the Government are not permitted to present evidence in a timely way. There is no real accountability. I am sorry to say that the noble Lord, Lord Hannay of Chiswick, finds it disobliging to call it a foreign court, but that is how many voters, taxpayers and British citizens see it.

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[Lord Anderson of Ipswich (CB)]

My Lords, as a signatory to the stand-part proposition in the name of the noble and learned Lord, Lord Etherton, I will confine my remarks to the question of whether it is contrary to the European Convention on Human Rights, and thus to international law, for a contracting state to disregard interim measures issued by the European court under Rule 39. Spoiler alert: it is, and the question is not so difficult as some noble Lords have suggested.

I declare an interest as a member of the Bar who has appeared for 30 years or so in that Strasbourg court, both for applicants and for states, and who has therefore been on the wrong end of some Rule 39 measures, including at least one which the court had to be persuaded to reverse. So I welcome the steps that the European Court of Human Rights is taking, partly at the instigation of this country’s Government, to improve its procedures and make them more transparent, including, as the court itself announced on 23 November last year, the attribution of interim measures to the judges who made them.

We have heard a lot about the Policy Exchange paper of last May. The arguments have been very well summarised in other speeches, particularly those of the noble Lord, Lord Wolfson, who has spoken to them a couple of times. Happily, I do not need to take your Lordships through those arguments or, indeed, the detailed rebuttals of them, which will be found in the Bingham Centre report of July of last year. Both reports are footnoted in the Constitution Committee report, to which the noble and learned Lord, Lord Falconer, has referred. The reason that I do not need to do that is that the position was made completely clear in law by the European court, in a judgment that has been referred to: the 2005 judgment of the Grand Chamber in Mamatkulov v Turkey.

It has been mentioned, but I will say a little more about it. Of the 17 judges who ruled on this issue in the Grand Chamber, a clear majority of 14 held that Article 34 of the convention, which guarantees the effective exercise of the right of application to the Strasbourg court, is violated when a state fails to comply with interim measures. For 13 of those 14, violation follows automatically from a failure to comply. The 14th thought that there was a violation if, as in Mamatkulov itself, applicants are as a matter of fact prevented from effectively exercising their right of application,

Three judges dissented: those appointed by Turkey, Russia and Liechtenstein. Their dissent is long and tightly argued. Policy Exchange would have been proud to publish it. Its authors looked at the text, the preparatory materials, state practice, the analogy with the International Court of Justice and the relevant rules of international law—all ground covered subsequently by Professor Ekins and tonight by the noble Lord, Lord Howard, and the noble and learned Lord, Lord Hoffmann. They accused the court, just as Professor Ekins did, of exercising a legislative rather than an interpretative function.

Court cases, unlike academic debates, produce clear winners and losers. The result of Mamatkulov, since followed in other judgments, is quite simply conclusive of the matter. The arguments advanced by the dissenting judges, and later by Professor Ekins, were decisively rejected. Why does this matter? Again, noble Lords have had reference to it: the reason it matters is Article 32 of the European Convention on Human Rights, which provides two things of importance. First,

“the jurisdiction of the court shall extend to all matters concerning the interpretation of the convention”.

Secondly, as my noble and learned friend Lord Etherton said:

“In the event of dispute as to whether the Court has jurisdiction, the Court shall decide”.


That is really it. The European Court interpreted Article 34 in Mamatkulov as requiring compliance with interim measures issued by the court because, as the court put it in its judgement at paragraph 135, interim measures

“play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and when appropriate securing to the applicant the practical and effective benefit of the Convention rights asserted”.

That ruling is binding, as the United Kingdom agreed it would be when we signed and ratified the convention, including Article 32. Perhaps we should not be very surprised that a treaty means what the court constituted to interpret it says that it means. Even the dissenting judges did not suggest otherwise. They did not like the majority judgment, but neither did they describe it, in a word recently used by Professor Ekins, as “lawless”. They accepted it.

State practice since the Mamatkulov decision is supportive of it. The Committee of Ministers, of all the Council of Europe states, resolved in 2010 that

“the Court’s case law has clearly established that Article 34 of the Convention entails an obligation for States Parties to comply with an indication of interim measures made under Rule 39 of the Rules of Court”.

The requirement on states parties to comply with interim measures was reiterated in the Izmir Declaration of 2011 on the Brussels Declaration of 2015, to which of course the United Kingdom was a party. It was endorsed in very clear terms by the French Conseil d’Etat as recently as 7 December last year, when that senior court required a person deported to Uzbekistan in breach of interim measures to be repatriated at the state’s expense.

In a recent email to noble Lords, Policy Exchange described its own 2023 paper as “authoritative”. I am afraid that whoever wrote that was high on their own supply. It is supported neither by the court whose job it is to provide authoritative interpretations of the convention nor by state practice, nor even, subject to anything the Minister may say, and I will be listening carefully, by our own Government. That at any rate is what I take from the last paragraph of the ECHR memorandum on the Bill.

To throw this established position into doubt might once have been merely eccentric; in current conditions, it is positively dangerous. As recently as 2005 there was a culture of compliance. The Strasbourg court could say, in Mamatkulov, paragraph 105:

“Cases of States failing to comply with indicated measures remain very rare”.


However, the “good chaps” theory no longer prevails in the Council of Europe. Russia challenged the jurisdiction of the court in 2021 when it required Alexei Navalny to be immediately released from prison due to the risk to his life and health—interim measures strongly supported by our Government—while Poland challenged it last year when its previous Government refused to comply with interim measures relating to the politicisation of its judiciary.

Supranational courts do not have bailiffs to enforce their decisions. The fabric of international law—that “gentle civiliser of nations”, as it was once described—is easily torn but not so easily repaired. It can be torn by acts such as that which is proposed to us—acts that enable or facilitate actions in breach of international law.

Clause 5 is peculiar, as the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Hoffmann, have both said. If Rwanda is as safe, as the Government invite us to declare, Clause 5 is unnecessary. If it is not safe, Clause 5 will compound the injustice of Clause 4. Either way, Clause 5 extends the damage already done by Section 55 of the Illegal Migration Act because it severs the link, praised by the noble Lord, Lord Jackson of Peterborough, between non-compliance and procedural reform. If we accept this clause, we will not only be authorising Ministers to contravene this country’s obligations; we will be handing an excuse to illiberal Governments across the continent to do the same, and worse. We should be ashamed to do so.

[Lord Purvis of Tweed (LD)]

I am not a lawyer and I do not wish to refer to any of the legal aspects of the amendment; there has already been enough of that in the excellent contributions from noble and learned Lords. I just want to address the point about why the United Kingdom should feel that we are particularly vulnerable to this court.

There has been reference to other countries that have had interim measures granted against them. It is of course the case that the interim measures relating to the Rwanda MEDP have a high profile. The noble Lord, Lord Faulks, seems to continue to be uncertain as to why the interim measures were given. I think he knows that, on the day that the court issued the interim measures, it also issued the statement of the decision when it notified the UK Government of the interim measures. These are public documents and they are online.

The interim measure relating to the case of NSK was put in place on the grounds that that the individual should not be removed to Rwanda until the ongoing domestic judicial review process was concluded. That is the reason the court gave for that case. I am not a lawyer and I know the noble Lord, Lord Faulks, is, but it sounds reasonable to me that while a domestic—

[Lord Faulks (Non-Afl)]

My Lords—

[Lord Purvis of Tweed (LD)]

Just one moment—I will say what is reasonable and the noble Lord can say it is not. I think that, if there is an ongoing domestic judicial review process but the Government decide to deport that individual before it has concluded, there are reasonable grounds there. I will happily give way to the noble Lord.

[Lord Faulks (Non-Afl)]

With respect, a statement of conclusion does not give any of the reasons for coming to that conclusion.

[Lord Purvis of Tweed (LD)]

It gave the decision that the ongoing domestic judicial review process should be concluded.

[Lord Murray of Blidworth (Con)]

Of course it is right that NSK’s application for an interim injunction was heard by the High Court—by the lead judge of the Administrative Court—and the interim relief application was refused. That was appealed to the Court of Appeal, which agreed with the single judge that there should be no interim relief. Application for permission to appeal to the Supreme Court was refused by the noble and learned Lord, Lord Reed. It was only the European court that decided to grant the interim relief. It appears that our own domestic courts at all levels and at great levels of distinction were satisfied with the Government’s statement that they would return NSK to the UK in the event that his judicial review challenge succeeded. Why does the noble Lord say it is right for the European court to form a view by way of press release when our own courts, in detailed judgments, had considered all the arguments and decided the other way?

[Lord Purvis of Tweed (LD)]

I thank the noble Lord. I said that the court issued a press release; I did not say it made a judgment by press release. I think that is taking it a little too far.

The noble Lord states that the domestic judicial processes had been concluded, but the court said that they had not. All I am relaying to the Committee is the decision that was made. In my view it is reasonable, but I am not a lawyer, as the two noble Lords are. That was the reason the court made the decision, and the Government accepted it.

The point I wanted to make is that there were five other cases that day, which are not referred to as frequently. The requests for two interim measures were granted in order for the court to consider the cases in greater detail. That is correct, yes? Two were refused, which has not been mentioned so far, and one was withdrawn because the Home Office had changed policy in the meantime. Looking at the consideration of cases on that day, I do not think you would come to a conclusion—with three accepted, two refused and one withdrawn—that there was some deliberate blocking of the measure.

That prompted me to ask what the record of the UK has been on interim measures over the last years. There have been 178 applications overall, with most of them withdrawn, since 2021. We have fared fairly well against Germany with a total consideration of 264. That compares with 478 cases for France. We are doing quite well as far as cases against the UK go. If this is judicial blocking, and therefore the motives are to empower the courts to stop what the Government want to do, we need to look at the record of the decisions.

In 2021 five interim measures were granted against the UK and nine were refused. In 2022, five were granted against the UK and 12 were refused. In 2023—the most recent data—one interim measure was granted against the UK and 13 were refused. Far from this being judicial blocking—these cases are all to do with expulsions and relocations; this is not just in general terms—the UK’s system has worked really rather well, especially when compared with those of Germany and France. I would have thought that this is something that the Government would want to protect.

[Lord Wolfson of Tredegar (Con)]

My Lords, the ancient court known as the Sanhedrin, at its full complement, sat with 71 judges and had a rule that the most junior judge would give judgment first. I understand the reason was that, if the senior judges had spoken and the junior judge disagreed, that would be arrogant; if they agreed, it would be impudent. I find myself speaking after the noble and learned Lords, Lord Hoffmann and Lord Etherton, who disagreed. Therefore, whichever side of this argument I take, it seems I am going to be guilty of both. I ask forgiveness from each of them.

Like the noble Lord, Lord Anderson, I will spoil any questions as to which way I will go by saying that I respectfully agree with the noble and learned Lord, Lord Hoffmann, and the reasons he gave for supporting Professor Ekins’ paper. It was interesting that, in opening the debate, the noble Lord, Lord Scriven, said that for about 20 years the jurisprudence of the European Court of Human Rights has been clear. That is true, but it begs the question: since the European Court of Human Rights has been there for rather longer than 20 years, why did the noble Lord limit his position to 20 years? The answer is that if he had said “for 23 years” the jurisprudence would have said something completely different.

What is remarkable in this area is that this is not a new question. As I said at Second Reading, the question whether the European Court of Human Rights should have the jurisdiction—and this is a question of jurisdiction—to issue interim injunctions or interim measures was specifically debated by the contracting parties back in 1949, and it was deliberately not put into the text in 1950. It was a deliberate omission, not an oversight. The states considered whether the court should have the power and, no doubt for reasons similar to that set out by the noble and learned Lord, Lord Hoffmann, decided that it should not. That caused no problem at all.

Year after year, the court operated perfectly well without this power. It ruled, in terms, that it did not have this power in 1991 and, a decade later, in 2001, it upheld that ruling. As I said at Second Reading, you then have a judicial volte face in 2005, and the judgment from which the noble Lord, Lord Anderson, quoted. It is an open question, and it is interesting to consider why there was this volte-face by the European Court of Human Rights. I suggested that it might have been “jurisprudential envy”, because the International Court of Justice held that it had the power to issue interim injunctions. But, of course, that is different, because the statute of the ICJ, particularly the French version, provides a basis in the foundational document of that court for it to have that jurisdictional power.

With respect, question of whether the court has a power to issue these interim measures rests on very slender foundations. How is it now said that the court has the power, and we are bound by it? The primary argument put this evening has been based on Article 32, which provides that the court has jurisdiction to decide on the operation of the convention. What is interesting about that argument is that it is not used by the court itself, which, so far as I am aware, has not based its jurisprudence on the fact that Article 32 gives it the right to say, “This is what our jurisdiction is, and this is what we are doing”. It is outside commentators who have tried to find a proper basis—because Article 34, which the court does rely on, is not one—for the court’s jurisdiction. It is rather like the archer who scores a bull’s-eye not by firing the arrow at the target, but by firing it and then drawing the target around it.

One comes to the conclusion that people would like the court to have the jurisdiction and then say, “Ah, well, there must be a basis for it—what about Article 32?” But it is not an argument that the court itself uses, and it is also a false argument. Article 32 is about disputes about the convention and its operation; they are to be resolved by the court. It is not a grant of unlimited jurisdiction to the court to defy the express terms of the convention, including Article 46.1, which says that states are bound only by final judgments and therefore, by implication, nothing else—and by the history of the convention, which, as I have set out, is contrary to the court having these powers.

Article 32 is not the “get out of jail” card. This is not a new point. A similar point came before the Supreme Court in the case of Pham in 2015—what would happen if the European Court of Justice exceeded its jurisdictional powers? The noble and learned Lord, Lord Mance, dealt with that issue in paragraph 90. I do not need to go through the answer, but it certainly was not, “Well, the European Court of Justice has a power to interpret the treaties, and if it says it has the power to do this, that or the other, necessarily it does”, which would be the analogue to the Article 32 argument.

With the greatest of respect, Article 32 simply will not do as a basis on which to found the jurisprudence of the court. Of course, there are other points to be made as to the process of the court, and those have already been set out by the noble Lord, Lord Faulks. For those reasons, the point underlying many of the amendments in this group—that the court has jurisdiction to issue these interim measures and they are binding in international law—is wrong. Therefore, these amendments ought to be resisted.

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We have had great legal arguments—very, very important legal arguments—but I want to get down to the nitty gritty here. Why are the Government bothering? How many asylum seekers are there who should be being deported under the Illegal Migration Act? How many do they expect to send to Rwanda? What is the timeline for it? All of us want to understand what is going on. That simply goes to the heart of it. We need some numbers from the Government and some explanation of what is actually going on. That is the purpose of my Amendments 66 and 67. I beg to move Amendment 66.

[Lord Purvis of Tweed (LD)]

My Lords, I rise to speak to Amendment 76A, in my name and in the name of my noble friend Lady Hamwee. This is a probing amendment to allow the Minister to expand on some of his helpful comments in an earlier group with regard to how the monitoring committee and the joint committee will operate.

When we started the Bill and I first read the treaty, I was not at that stage quite appreciative of how significant the monitoring committee and the joint committee would be when it comes to making decisions about the preparedness of when Rwanda would be a safe country. I was not aware at that stage, when I read the treaty, because at that stage, I was not aware that I was a decision-maker as to whether or not Rwanda would be safe. According to the Advocate-General, however, I am a decision-maker because I am a Member of Parliament and it is now a decision of the court of Parliament: this creature that has now come up from the grave to sit in judgment of a third country’s record on safety.

It is also relevant because the monitoring committee and the joint committee will be the supervising bodies, to some extent, with regard to the overall operation of the start to the end of the relocation processes. The noble Lord, Lord Coaker, is absolutely right: we do need more information about it, because we are gradually learning about what some of the estimates may be for the numbers to be relocated.

The Hope hostel in Kigali can accommodate 200 people, with an average processing time of a fortnight. On the previous day of Committee, we did the maths, as the Americans say. Well, we can do some more maths now, as the noble Lord, Lord Coaker, has helped us. If we believe the Daily Telegraph, which occasionally is a reliable journal of Conservative thinking in this country, if there are 30,000 people, on the figures given by the noble Lord, Lord Murray’s, impact assessment of the Illegal Migration Act, which, of course, we will take as read, that is £5.6 billion plus the £400 million down payment, so a neat £6 billion.

The Minister, in an earlier group, outlined the very high cost of accommodating existing asylum seekers in hotel accommodation. We know, through the Independent Commission for Aid Impact, that the Home Office decided on the most expensive and least efficient means by which to accommodate asylum seekers. Nevertheless, that is £2.9 billion a year—so, on any reckoning, the number of those who will be relocated to Rwanda will take at least a decade at a cost of at least £6 billion. There is no means by which the Government can have a more effective way for the British taxpayer than efficient accommodation and processing here in this country. There is no way the Government can square any of it to make the Rwanda scheme cheaper for the British taxpayer.

Ultimately, we are looking not just for value for money but for whether we can make the decision that Rwanda is safe and the mechanisms are in place.

[Lord Lilley (Con)]

Before the noble Lord moves on to the other bits, can he give us some estimate of how much it will cost the British taxpayer if he and his friends succeed in perforating this Bill like a sieve so that it has no deterrent effect and we have an ever-growing number of people coming here having to be put up in hotels at immense cost to the UK?

[Lord Purvis of Tweed (LD)]

I am grateful to the noble Lord, who has been here during the various days in Committee. He will have heard last Wednesday what the Government’s own estimate is regarding the deterrent effect of the Illegal Migration Act. That ranges towards the top element of deterrence of 50%. That is not ours or the Opposition’s but the Government’s estimate of the likely impact of the Illegal Migration Act, and that is the mechanism by which this is brought about. A 50% deterrence would be roughly 16,000 people.

[Lord Lilley (Con)]

If it does not rise.

[Lord Purvis of Tweed (LD)]

Well, that is the deterrent effect. Assuming that of those who are coming, 50% on a regular basis are deterred, then over the long term there would still be 50% coming by boats. That is not my estimate, it is the Government’s estimate.

[Lord Murray of Blidworth (Con)]

My Lords—

[Lord Purvis of Tweed (LD)]

Before I give way, presumably what the noble Lord wants to get to is a deterrent effect of 100%, so that the boats are stopped, which is what we all want. But so far I have not found anything in any government documentation of policy that says that anything they are going to do will bring about 100% deterrence. Has the noble Lord found it?

[Lord Lilley (Con)]

I asked the noble Lord for his estimate of what will happen if we have no deterrent effect and there is an ever-growing number of people crossing the channel. Is it possible even to reach a figure? It must be enormous.

[Lord Purvis of Tweed (LD)]

The Permanent Secretary at the Home Office was unable to do so. That is why he sought ministerial direction. Home Office civil servants sought ministerial direction because the Permanent Secretary said that the Government’s policy was not proven value for money.

[Lord Murray of Blidworth (Con)]

Will the noble Lord give way?

[Lord Purvis of Tweed (LD)]

I will address the point raised by the noble Lord, Lord Lilley, and then happily give way to the noble Lord.

The valid question is, “If this Bill will not work, what would work?” We know that this Bill will not work, so the better deterrent effects are those policies such as relocation and resettlement agreements, which comply with international law and have policing mechanisms attached to them. That is called the Albania deal. I am sure that the noble Lord will agree that this has been a success.

[Lord Lilley (Con)]

A deterrent effect of 90%.

[Lord Purvis of Tweed (LD)]

From a sedentary position. I agree with the noble Lord. I think Hansard picked it up: a successful 90% deterrent. The noble Lord heard me at Second Reading saying that we welcomed the Albania deal. An internationally legal, efficient, effective resettlement and relocation agreement is what works. This is not any of those. I happily give way to the noble Lord, Lord Murray.

[Lord Murray of Blidworth (Con)]

It is very interesting that the noble Lord should refer to the effectiveness of the Albania arrangement. The document that the noble Lord likes to refer to in relation to the ministerial direction on deterrence came before the Albania deal, the 90% drop and the tangible evidence that deterrence works that we saw as a result of the Albania deal. We can extrapolate from the experience of the Albania deal to say that deterrence will work more generally if we can be sure that a significant proportion of those crossing the channel in small boats are sent to Rwanda for third-country processing.

[Lord Purvis of Tweed (LD)]

Even for the noble Lord, it is a bit of a leap to say that a negotiated relocation agreement with Albania has been a deterrent because they may have thought we were going to send them to Rwanda. Even factually, I am afraid that he was incorrect. The noble Lord knows that the ministerial direction sought on the migration and economic development agreement with Rwanda was specifically for this Rwanda agreement. He also knows that when the Permanent Secretary was giving evidence in December, after the Albania agreement was agreed, he said that no circumstances had changed with regard to his view for value for money for this agreement. The Permanent Secretary still believes that the Rwanda agreement will not propose to be value for money. I agree with the Permanent Secretary at the Home Office.

The monitoring committee will have eight members, as the Minister said, and its terms of reference are online. The Minister said earlier that it would be independent of government, and that is true to an extent—if you think that four members being appointed by one party and four by another constitutes independence, because when it is being established, each party will appoint them. The key thing from our point of view is the ability of the monitoring committee to, as the Minister wrote in a letter to me,

“ensure all obligations under the treaty are adhered to”.

It will not, because it cannot—the monitoring committee has no powers of enforcement. It will be able to refer aspects it considers important to the joint committee, but it is under no duty to publish any of those recommendations or any of its findings, which can be significant. As the noble and learned Lord, Lord Stewart of Dirleton, said, the safeguards that must be in place as far the Government are concerned will be considered to be in place only if the monitoring committee has said that they are in place. We in Parliament will not know; but we are supposedly the decision-makers when it comes to whether Rwanda will be safe.

The joint committee, under Article 16, can make only non-binding recommendations to the parties. So, there is a monitoring committee that does not have a duty to publish its findings and cannot ensure adherence to the treaty. It can make only recommendations to a joint committee, which can make only non-binding recommendations, and which itself is not duty bound to report to the body that is apparently to be making the decisions: Parliament.

I asked how we would then change this if the circumstances changed. Even if we in Parliament found that out from a monitoring committee and joint committee that do not report to us, how would we change it? The noble and learned Lord rightly said that no Parliament can bind its successors. That seemed to imply that a future Parliament could change this arrangement. Well, it cannot, because, of course, no Parliament can bind its successors, but no Parliament can bind a Government on making or ending treaties—that is a prerogative function. How can we in Parliament change the treaty if we decide that Rwanda is no longer a safe country? I hope the Minister can explain that to me when he winds up.

[Lord Carlile of Berriew (CB)]

My Lords, I want to speak in support of Amendment 67, in the name of the noble Lord, Lord Coaker. I have listened to the last hour or two—I have lost count of how many hours of debate there have been—and have restrained myself, perhaps uncharacteristically, from intervening. There were contributions from, for example, my noble friend Lord Anderson, who has great experience, having appeared in courts in which I have not; from the noble and learned Lord, Lord Falconer of Thoroton, who has been a very senior Minister; and from the noble and learned Lord, Lord Hoffmann, who has given judgment in some of the relevant cases. I thought I would leave it to them to deal with the legal aspects.

I come to this as a lawyer who has spent 38 of the last 40 years as a Member of one or other House of this Parliament. I am concerned about the balance between the legal position created by a piece of draft legislation and the role that we legitimately have in these Houses, particularly in the other place, which is more democratically accountable than we are, although we are reluctant to deny at least some level of democratic accountability.

I do not understand this concept of deterrence. There are two views on deterrence, and they are simply stated: either you believe that the provisions are deterrents, or you believe they are not. You can actually make pretty respectable arguments both ways. It seems to me that the deterrent that would stop people coming in small boats is to deal with the cases efficiently, which has not been done at least until very recently—in other words, to ensure that those who make what might well in the vast majority of cases be unjustifiable and inadmissible requests to be allowed to remain in this country, leave this country, after due process, as quickly as possible—and to ensure that Parliament retains some oversight so that it can see that the new law is being dealt with in a way of which we are not ashamed and that accords with British legal standards. Amendment 67, which I am sure the noble Lord, Lord Coaker, will allow me to say is modest, would at least allow Parliament to have that oversight of public spending and the way a new and unusual law operates to ensure it is fair and that there is value for money.

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[Lord Sharpe of Epsom (Con)]

I do not believe I have, my Lords. What I am trying to say here is that the joint committee has to make reports to Parliament in order for Parliament to keep it under review. That is what is under discussion at the meeting this week. So it does answer the question—perhaps not in the way that the noble and learned Lord would like, for which, obviously, I apologise.

[Lord Purvis of Tweed (LD)]

I am grateful for that comment. Just for the record, it is 11.13 pm on the last day of Committee, and it might be that the Government are thinking about something that we have been talking about. I thank the Minister for that. We will have an update with regard to how the joint committee operates. However, in order for Parliament to make its judgment, it must have access to independent information. The joint committee is the two Governments, so it does not really meet the criteria of Parliament making a judgment on the basis of Rwanda being safe, if the only information that we can use to make that judgment is that of the Government of Rwanda.

[Lord Sharpe of Epsom (Con)]

My Lords, we have gone into the operation of the joint committee and various other bodies in considerable detail today, so I am not going to rehash those now. I am sure we can refer back to the record.

The noble Lord, Lord Coaker, asked me about the timetable. Obviously, I would say this, but the treaties need to be ratified and laws need to be passed, so I am afraid I cannot give a timetable at the moment.

With regard to numbers, as we have discussed many times before, the scheme is uncapped so I cannot provide a commentary on the possible likely numbers.

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[Lord Coaker (Lab)]

I have agreed with the noble Lord, Lord Lilley, about Albania. There is no question between us about Albania. Of course, it acted as a deterrent, because it was a situation in which Albanians leaving Albania to come to this country knew that they were going to be sent back there. We got an agreement between the UK Government and Albania. It was a proper returns agreement that people knew was happening, so it had the deterrent effect the noble Lord, Lord Lilley, is hoping for.

[Lord Purvis of Tweed (LD)]

I am sure the noble Lord, Lord Lilley, is fully aware that the people he is referring to are economic migrants who have no right to be here. Therefore, a proper returns and resettlement agreement is completely legitimate. They are not asylum seekers.

[Lord Coaker (Lab)]

With respect to the answer the noble Lord, Lord Sharpe, gave us and the amendment I was speaking to, this Chamber deserves more numbers from the Government. We need to understand what the Government are doing. The whole government policy on small boats is built on deportations. If you ask the majority of people in the country, they would expect that the Government are going to deport thousands upon thousands to Rwanda. The reality is that there will be a few hundred at best. What sort of policy is that to deal with the scale of the problem the Government face? We deserve better than that. I will withdraw the amendment.

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[Lord Faulks (Non-Afl)]

My Lords, I will briefly comment on the relationship between Rwanda and the United Kingdom contained in the treaty. A lot has been said about the treaty being inadequate and how it depends on what happens in future. The noble and learned Lord took a certain amount of flak during earlier debates in Committee when he was asked what the treaty is doing if Rwanda is safe. He suggested that it might make it safer. The rather scornful response to this observation was somewhat unfair. The treaty contains a number of obligations and is entirely typical of treaties in that respect. These obligations use the word “shall” and are directed to future activity.

The general principle of international law is that a treaty is binding on the parties and must be performed in good faith. That principle is embodied in the maxim “pacta sunt servanda”. We take that very seriously. If a party breaks the terms of a treaty, provided there has been a fundamental change of circumstances, as the Vienna Convention on the Law of Treaties makes clear, the treaty in effect comes to an end. The noble Lord, Lord Clarke of Nottingham, spoke of the possibility of a coup and seemed to suggest, as the proposer of this amendment did, that because Parliament had determined that Rwanda was safe, we would be stuck with that determination.

I respectfully disagree. The treaty bears close reading. I will not refer to it at this stage of proceedings, but Clause 8(1) makes its nature clear, Articles 14, 15 and 16 concern the arrangements for monitoring and Article 22 provides a dispute mechanism. Further, the treaty will end on 13 April 2027 in any event. These seem to me to be sufficient safeguards built into the treaty, but if there is a coup or a fundamental change of circumstances, or any Government think that Rwanda is unsafe, the treaty can be brought to an end, at least until a subsequent agreement has been reached. To suggest that Parliament must somehow not be satisfied that there are obligations in international law seems to me unreal.

[Lord Purvis of Tweed (LD)]

I respect the noble Lord and am listening carefully to what he is saying, and as always, he makes well-considered arguments. I have a genuine question. I agree with everything he said, but only the Executive, under the prerogative power, would be able to make the judgment to end that treaty. Parliament cannot do it. Is that correct?

[Lord Faulks (Non-Afl)]

The noble Lord is entirely correct about the prerogative, but Parliament, perhaps unusually, in considering this Bill has the opportunity to see the treaty and the obligations contained within it. Parliament should look at those obligations and see whether it is satisfied with the terms of the treaty and whether it provides sufficient safeguards. These are relevant factors for Parliament to consider but, ultimately, I accept that the noble Lord is right—it is for the Executive to decide.

[Lord Purvis of Tweed (LD)]

I am very grateful to the noble Lord for giving way again. In essence, that was my argument in the previous group when it came to the necessity for us to have the information for the monitoring committee and the joint committee, given the circumstances, to allow us to form that view. Ultimately, we do not have the power to bring the treaty to an end or amend it because it is a prerogative power. We are, therefore, very limited as to what we are able to do if there are changes of circumstances in Rwanda that our Government and their Government do not then wish to change within the treaty.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

As I understand it, yes.

Rwanda has a strong history of providing protection to those who need it, and it currently hosts more than 135,000 refugees and asylum seekers who have found safety and sanctuary there. The terms of the treaty we have negotiated with Rwanda address the findings of the UK domestic courts and make specific provision for the treatment of relocated individuals, guaranteeing their safety and protection. I invite the right reverend Prelate to withdraw her amendment.

[Lord Purvis of Tweed (LD)]

Before the Minister concludes, I would be grateful if he could say what the mechanism will be for ending this legislation, if the treaty is not extended. Could he also answer my noble friend’s question on amendments to the treaty? It is long-standing practice that amendments to a treaty must come before Parliament through the CRaG process. Can he confirm that that would be the case?

[Lord Sharpe of Epsom (Con)]

My Lords, I am not expert on treaty law but, as far as I understand it, that is the case. I am afraid that I do not know the process behind the noble Lord’s question; I will have to find out.