Safety of Rwanda (Asylum and Immigration) Bill

Lord Stewart of Dirleton Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 62 in the name of my noble friend Lord Coaker would ensure that a Minister of the Crown making a decision on an interim injunction consults the Attorney-General. This would ensure that, before making a decision on compliance with any interim measures issued by the ECHR for the purpose of blocking a person’s removal to Rwanda, the relevant Minister consults the Attorney-General, creating an additional safeguard. The noble Lord, Lord Wolfson, introduced his speech by saying he was not going to be arrogant or impudent, so I will adopt the same approach in my speech, which will be brief. I am not going to go into the legal arguments—many eminent lawyers have done that—but I am going to go into the politics and address what seems to me to be the question that has been left hanging in the air.

Yesterday morning, I watched the television and Mr Michael Tomlinson, the Illegal Migration Minister, was on our screens and he was absolutely explicit: he said that the flights will take off as soon as the Bill becomes an Act and the treaty comes into force. He said they will be going pretty much immediately. There was no question of the niceties of Rule 39 and all the other things we have been talking about; the subject simply did not come up. That is the politics of it: when the Bill becomes an Act, the treaty comes into force and those flights will be taking off.

My noble and learned friend Lord Falconer went into how the decision on Rule 39 might be made. The question he, and the noble Lord, Lord Faulks, asked, was, would it be subject to judicial review? To me, that is the question hanging in the air, and I look forward to the Minister’s answer, because as far as I can see it will be for the Attorney-General to make that decision, on the recommendation of the Prime Minister, and she will be doing that as a law officer. Today’s Daily Telegraph said—I do not know how it knows this—that when Mr Tomlinson was Solicitor-General, he had written legal advice saying that it would be illegal to go against Rule 39. I know it is private advice; nevertheless, that was in today’s Daily Telegraph.

So, there are two issues. First, the Illegal Migration Minister was explicit about the flights taking off on the conclusion of proceedings on the Bill. Secondly, what is the status of judicial review of any Rule 39 decision?

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I am extremely grateful to the Committee for an exceptionally lively, informed and learned debate on this matter. The consideration of obligations to obtemper interim measures—interim indications from the European Court of Human Rights—seemed to gravitate around two poles. On one hand we had the noble Baroness, Lady Chakrabarti, the noble Lords, Lord Kerr of Kinlochard and Lord Hannay of Chiswick, the noble and learned Lord, Lord Etherton, and others. On the other hand, my noble friend Lord Howard of Lympne spoke powerfully, my noble friend Lord Jackson of Peterborough added his weight, and we heard supportive contributions from my noble friend Lord Wolfson of Tredegar and the noble and learned Lord, Lord Hoffmann, who spoke from the Cross Benches offering, if I may say so, a qualified view as to the obligation to obtemper any such interim measures.

The scheme of the Bill is to enact Clause 5 to put beyond doubt that the decision about whether to comply with an interim measure, in proceedings relating to the intended removal of a person to the Republic of Rwanda under, or purportedly under, a provision of or made under the Immigration Act, is in the hands of a Minister of the Crown. The requirement for a Minister of the Crown is to exercise the decision personally, which reflects the seriousness of the decision to be taken.

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[Baroness Chakrabarti (Lab)]

Why, then, does the Victims and Prisoners Bill, as presented by the Government, require the Secretary of State to consult the Attorney-General before amending the victims’ code, if there is this long-standing convention that the Government are indivisible and the Attorney-General will always be consulted on important matters? Also, why is this significant decision potentially to ignore interim relief from the Strasbourg court for Ministers and not Parliament, given that the Government’s central argument in this Bill is about parliamentary sovereignty?

[Lord Stewart of Dirleton (Con)]

I think the answer to the first point is that the Victims and Prisoners Bill relates to victims, a matter on which the Attorney-General, exercising her supervision over aspects of the criminal legal system, would be in a good position to answer. That distinguishes it from this measure. However, that is only my instinctive answer. So as not to mislead the Committee, if the noble Baroness is content then I will write to her on the topic. I am grateful for her nod of agreement. As to whether this should be for Parliament as opposed to the Executive, in the form of the Minister, I can only repeat that the scheme of the Bill and the Government’s intention is that this decision should lie with the Minister responsible.

The noble Lord, Lord Ponsonby of Shulbrede, made two points, the second of which echoed the question anent judicial review posed by the noble and learned Lord, Lord Falconer of Thoroton. Our position is that the decision on the part of a Minister to comply with an interim measure is not amenable to judicial review. His other question related to the views expressed by my honourable friend in the other place the Minister for Immigration about flights taking off as soon as the Bill passes. While this Committee is engaged in detailed legal scrutiny, my honourable friend is speaking in public about the Bill’s policy: to see to it that these flights take off as quickly as possible and the deterrent effect of which my noble friend Lord Sharpe of Epsom and I have spoken should take effect.

[Lord Falconer of Thoroton (Lab)]

Why is it not susceptible to judicial review? Ouster of the courts normally involves at least a provision in a Bill. There is no such provision here. Ousting the courts by a statement from the Dispatch Box in the House of Lords is very unusual.

[Lord Stewart of Dirleton (Con)]

My Lords, I am not in a position to go into detailed discussion on this point, but I have given the Government’s position on the amenability of judicial review in relation to these decisions.

[Lord Falconer of Thoroton (Lab)]

Could the Minister indicate when he might be in a position to debate it?

[Lord Stewart of Dirleton (Con)]

I undertake to correspond with the noble and learned Lord on that.

Amendments 58, 60 and 61 would bind the United Kingdom Government, preventing a Minister of the Crown or discouraging domestic courts from considering the individual facts of the case or the determination of the domestic courts as to whether a person would face a risk of serious and irreversible harm if returned to Rwanda.

The amendments would also require the United Kingdom courts to take account of an interim measure issued by the Strasbourg court, potentially supplementing the ECHR’s decision, rather than making their own independent finding about whether a person would face a real risk of serious and irreversible harm.

Finally, the disapplication of Section 55 of the Illegal Migration Act would lead to a conflict between the duty to remove established by the Act and the effect of an interim measure issued by the Strasbourg court. That would create uncertainty as to which will prevail.

Clause 4 includes a specific provision enabling the United Kingdom courts to grant an interim remedy preventing removal to Rwanda where it is satisfied that a person would face a real, imminent and foreseeable risk of serious and irreversible harm. Those measures have been designed to ensure that our courts are not out of step with the Strasbourg court; the serious and irreversible harm test is broadly the same that the Strasbourg court applies. Clause 4 would have our courts apply the same test as the Strasbourg court when considering the position of a person who might be sent to Rwanda. There is no reason why the United Kingdom courts, which we would expect to be in possession of all the evidence and facts in the case when making such a decision, cannot be relied upon to reach their own decision rather than being required to have regard to another court which may not have complete information on the case.

The Government submit that these amendments risk hampering or thwarting our efforts to stop the boats and to remove people with no right to remain in the United Kingdom.

There have been references from various quarters about the absence of my noble friend Lord Hailsham today. I indicate to the Committee that he was courteous enough to contact me directly and let me know what the position was. He has tabled Amendment 63, which relates to rules governing Rule 39 procedures. In support of that, the noble Baroness, Lady Chakrabarti, was the first to make inquiries of the Government as to what the position is in relation to the changes in the procedures. I am grateful to the noble Lord, Lord Faulks, who also discussed this. On 13 November 2023, the Strasbourg Court announced proposed amendments to its rules and practice concerning interim measures, including the naming of judges who make the decisions on interim measure requests, interim measures communicated as formal decisions, considering state representations before interim measures are indicated, and parties being able to request reconsideration of an interim measure.

The noble Lord, Lord Faulks, referred to his observations at Second Reading, expressed again today, concerning the differences between procedures when interim remedies are sought in our domestic courts and the case that is hitherto applied in the European court. I do not intend to repeat in any detail the points the noble Lord made. The point was that in relation to that case, as the noble Lord described, there was what amounted to a breach of natural justice, as it would be identified in a domestic court, as the United Kingdom was unable to put its case. As the noble Lord pointed out, in the domestic sphere, a person is able to seek and be granted an interim remedy.

[Baroness Chakrabarti (Lab)]

I am grateful that the Minister was kind enough to inform the Committee about the November reforms from the Strasbourg court, so surely all these natural justice concerns have now been met.

[Lord Stewart of Dirleton (Con)]

I gave the noble Baroness a list of the recommendations, or the proposed amendments to the rules, but I do not see them as answering all of the concerns which the noble Lord, Lord Faulks, expressed, and with which I agree. The question of the ability to go to court directly after an indication has been made, or an interim interdict or injunction in our jurisdictions has been granted, and to argue the point with the court, does not form part of the reforms to the direct ability to challenge which the Strasbourg court has announced.

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[Lord Stewart of Dirleton (Con)]

My Lords, ultimately the matter for the Committee to take into account—I appreciate that I am not giving the noble Lord an answer—is where this leaves our domestic obligations, not our international ones.

[Lord Anderson of Ipswich (CB)]

Surely it is relevant to this Committee, if we are being invited to pass Clause 5 into law, to know whether or not, in the Government’s view, it will enable or facilitate a breach of international law by a Minister acting in reliance on it. The Minister does not seem to be able to tell us whether he takes that view or not. I read the human rights memorandum as taking the orthodox view that there is a breach of our international obligations when interim measures are disregarded by a Minister. Is the Minister telling us that the position has changed since that memorandum was drafted?

[Lord Stewart of Dirleton (Con)]

My Lords, in addressing the Committee, I outlined that the position in relation to international measures is that they must be incorporated into domestic law before they take on binding character for our domestic courts.

[Lord Anderson of Ipswich (CB)]

I do not believe there is any dispute in this Committee about the proposition that the Minister has just delivered himself of. However, we are not talking about domestic law; we are talking about international law. If the Minister cannot answer the question now, will he add it to what is, I am afraid, the lengthy list of questions on which he has kindly offered to write to the Committee in due course?

[Lord Stewart of Dirleton (Con)]

My Lords, in view of the hour and the information which I have to hand, and given the stark terms in which the noble Lord expresses himself, that might perhaps be the better course.

[Lord Murray of Blidworth (Con)]

Is it not the case that the answer to the question of the noble Lord, Lord Anderson, is that it depends? We know from the Policy Exchange paper and many other sources that there have been many cases where Rule 39 indications have not been complied with by states parties, including France, Italy, Albania and Slovakia. It all depends on the circumstances, does it not?

[Lord Stewart of Dirleton (Con)]

I am grateful to my noble friend but the answer “it depends” renders the matter, to a certain extent, even more complicated and emphasises the number of considerations that I will have to take into account in writing to the noble Lord, Lord Anderson of Ipswich. While I am grateful to my noble friend for his contribution, my undertaking to write to the noble Lord remains in place.

[Lord Scriven (LD)]

My Lords, I thank all noble Lords who have taken part in this predominantly technical debate on the view of the UK’s legal position if it were to ignore an interim measure from the European Court of Human Rights. The final intervention from the noble Lord, Lord Anderson of Ipswich, and the Minister’s answer leave me just as confused as when we started the debate. It reminds me why, after I graduated 40 years ago, when I was offered the chance of becoming an NHS manager or going to law school, I chose to become an NHS manager. That was hard enough.

Clearly, noble and noble and learned Lords have raised several issues, but because of the lateness of the hour, I will not repeat them all. There is the issue of judicial review, which is quite bizarre. If a Minister’s sole decision on such an important issue cannot be judicially reviewed, particularly if the position is completely irrational, I think most noble Lords would agree that it would be easy for international law to be broken and for the individual to have no recourse even to our own domestic courts. As many noble Lords have said, the perverseness of Clause 5 as it stands is that it is preposterous that even our own domestic courts are ruled out from making any interim judgments. The Minister has not been able to give any convincing answer as to why that is.

A number of noble and noble and learned Lords asked this question in different ways, which the Minister, in answering, still ignored: if an interim decision is of such a serious nature, why would a Minister of the Crown wish to ignore it? It is hard to conceive why a Minister would wish to do that, particularly if there is no judicial review. It makes the individual completely reliant on a rational Minister making a decision devoid of the policy of the Government, which is absolutely central to stop the boats. It gets the Minister in a political and legal position that is highly suspect both for the individual on the receiving end of the decision and for the Minister having to make it. I am absolutely convinced of that, based on the views that have been raised.

Of all those views raised, the explanation of the noble Lord, Lord Anderson of Ipswich, about the judgment and Articles 32 and 34 is one that I felt was definitive, as, I think, did many other noble Lords. However, the Government refused to accept that and continue to insist that Clause 5 is not in breach of international law and is not in any way a dilution of the separation of powers. I believe that this issue will come back on Report, and quite rightly so. Depending on what the Government say, I am sure that it will be a bone of contention for the House. Having said that, I beg leave to withdraw my amendment.

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[Lord Coaker (Lab)]

My Lords, this is a very small amendment. I tabled this amendment because I read that, according to what the Home Secretary said, it will be possible for people who have sought or been given asylum in Rwanda to be returned to this country if they are guilty of a serious offence.

Can the Minister say whether the Government have any idea of the numbers that they expect to be returned, or is it just a small number, as the Home Secretary said? What is the definition of a serious crime that would require somebody to be returned to the UK from Rwanda? Can we refuse somebody who is in Rwanda and the Rwanda Government are seeking to return on the basis that they have been guilty of a serious crime? Can the UK Government refuse to accept them back from Rwanda, if that is the case? If they are successfully returned to the UK from Rwanda because of the serious crime that they have committed, or the national security threat that they pose, what is their status when they are back in the UK? If we chose to do so, would we be able to deport them to another country?

This is a probing amendment; I was just curious, when I heard the Home Secretary talking about the possibility of criminals who had been deported to Rwanda being returned to the UK. It would be helpful to have a few answers to those questions. I beg to move.

[Lord Stewart of Dirleton (Con)]

My Lords, I thank the noble Lord, Lord Coaker, for Amendment 68, but I cannot support its addition to the Bill. We do not consider such a change necessary, as individuals would be returned from Rwanda only in extremely limited circumstances, which we have agreed to in this legally binding treaty.

The first question that the noble Lord, Lord Coaker, posed was to ask the Government again for numbers, as he had in the previous amendment. I do not think that any attempt to estimate likely numbers of people committing serious crimes is something that the Government could be expected to provide. If somebody who has been relocated to Rwanda commits a very serious crime, there is a chance that they could have their status revoked. In these limited circumstances, they may be removed to the United Kingdom, but only after they have served any prison sentence in Rwanda. This will ensure the non-refoulement element of the treaty will not be breached.

[Lord Coaker (Lab)]

Could the Minister define the prison sentence? Is it any prison sentence, or is it a sentence of two, four or five years?

[Lord Stewart of Dirleton (Con)]

The provision in the treaty is reserved for the most serious crimes—one punishable by five years or more imprisonment.

The amendment would necessitate, in the rare event of such returns to the United Kingdom, parliamentary consideration as to whether the Rwanda treaty should be suspended. However, it does not follow that, because an individual is returned from Rwanda to the United Kingdom because of serious criminality, the whole treaty is called into question. The return of individuals to the United Kingdom, including in these circumstances, is envisaged expressly by the treaty. It would be an example of the treaty functioning as it should, not a reason for its suspension.

[Lord Scriven (LD)]

The Minister quite rightly says that it is in the treaty—under Article 11, I assume. But that article says that the person will come back to the United Kingdom only with the relocated individual’s consent. If that consent is not given, what happens in this instance?

[Lord Stewart of Dirleton (Con)]

I will have to revert to the noble Lord with an answer to that question, which is a hypothetical situation I had not considered.

The Government have set out the expense caused to the British taxpayer of billions of pounds in relation to illegal migration. As my noble friend Lord Sharpe of Epsom has pointed out on more than one occasion, our primary concern is the dreadful cost in life that it is inflicting. That is why we need bold and novel solutions towards ending it. Deterrence is a key element of the Rwanda partnership. Ultimately, we need to stop people making dangerous and illegal journeys across the channel. It is vital that we can show those who enter the United Kingdom illegally that they will not be permitted to remain here, thus breaking the model of the people smugglers and helping us to put an end to their vile trade. I therefore ask the noble Lord to withdraw his amendment.