Safety of Rwanda (Asylum and Immigration) Bill

Lord Stewart of Dirleton Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

[Lord Coaker (Lab)]

My Lords, it is a pleasure to wind up this group of amendments for His Majesty’s Opposition. We have become used to the quality of the debate on the Rwanda Bill, but I start by associating myself with all the remarks made about Lord Cormack and add my recognition that he was a marvellous individual. In marking his passing, I also mark the passing of my noble friend Lady Henig in recent days. I am sure that fuller tributes will be made to her; we have lost a valued colleague.

The noble Baroness, Lady Jones, presented a challenge to me. If we were to win the next election, we would have the big advantage of being in power and would repeal the Bill. That is the point I make to the noble Baroness.

It is our view, whether or not it is held universally, that it is important for us to respect what we see as the constitutional traditions of the House. We would expect them to be followed were we to be in power, and that is why we take the position we do. I say to the Government, as I have on a number of occasions, that constitutional convention also requires the Government to listen to what the House of Lords says, to respect what it says and to listen to its views and not just dismiss them before they have even been discussed. We have made that point continually throughout this debate.

The Government may disagree with all the amendments, but to dismiss them as the Government have, before this House has even debated many of them, undermines the constitutional proprieties of the way this country operates. As much as the Government say to us that we should respect those, the Government should respect the amendments your Lordships consider and, on occasion, pass.

I thank my noble friend Lady Chakrabarti for her amendments and for the way she put them. She will see that my Amendment 2 seeks to say that the Act, as it will be, should comply with domestic and international law. I want to focus particularly on the international law aspects but, with respect to the debate we have had on domestic law, I refer noble Lords to the report from the Constitution Committee. The report made a number of challenges to the Government about how simply saying something was a fact in legislation accorded with the separation of powers.

Clause 1(2)(b) says that

“this Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country”.

Paragraph 11 of the Select Committee report says:

“Clause 1(2)(b) could be interpreted as a breach of the separation of powers between Parliament and the courts. It is the role of Parliament to enact legislation. It is the role of the courts to apply legislation to the facts”.


The Bill says that the facts are not convenient so we will change them by legislation, saying that Rwanda is safe by an Act of law rather than by application of that legislation to the facts as they are within the country.

International law is also extremely important. In Committee, the noble Viscount, Lord Hailsham, helpfully pointed out that Clause 1(4)(b) says:

“It is recognised that … the validity of an Act is unaffected by international law”.


That is quite astonishing. The Bill later lists all the various laws and conventions which will not apply. As a country, is that really where we want our legislation to be? My noble friend Lady Lawrence referred to the UNHCR’s view that the Bill is incompatible. Do we simply dismiss that with a wave of the hand and pass legislation to say that it does not matter? Do we say that disapplying the Council of Europe from this legislation does not matter, despite the fact that it was mainly Conservative politicians, not least Churchill and Maxwell Fyfe, who moved forward the legislation on it? All sorts of other conventions are dismissed with a wave of the hand as though they do not matter.

Yet, time after time from the Dispatch Box, both here and in the other place, respect for international law is used as a justification for this country’s actions. The international law of the sea is used, rightly, as a justification for our actions against the Houthis in the Red Sea. When we say that Russia’s invasion of Ukraine is illegal, it is because it breaks international law. We often talk about “foreign courts” as a disparaging term for international courts that we have agreed to join, but where do we wish to take Putin for what he has done in Ukraine? It is to an international court to be held to account by international law. In all these examples, we expect international law to apply to the actions of an individual or a Government.

My amendment says that it matters what this country does, with respect to both domestic and international law, because in all the international institutions of which we are a member we often stand up and say that international law is important and should be applied and adhered to. We do so because we recognise that if it is not, that will be the road to chaos, confusion and the problems across our world getting not better but worse.

The Bill is dealing with a difficult problem that we all wish to see solved. This is not between those who wish to see it solved and those who do not, but about the differences in how we would do it. There is a need to deal with the challenges of the small boats, immigration, migration, refugees and asylum seekers in this country, but let us do it in a way that is consistent with our proud tradition of respect for law—both our domestic law and the separation of powers, and the international law based on treaties that we signed as a free, independent country.

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

My Lords, on behalf of the Government Front Bench, I will first speak about noble Lords who have recently passed out of this Chamber and out of this life. I echo everything said about my noble friend Lord Cormack. I did not know Baroness Henig as well as her colleague, the noble Lord, Lord Coaker, did, but I mourn her loss and those better able to speak about her will do so in due course.

As to Lord Cormack, I can say something. If the welcome which he extended to the noble Lord, Lord Alton of Liverpool, on his entering the other place was as kind, heartening, pleasant and wise as the one which he extended to me on my coming among your Lordships a scant few years ago, I would not be very surprised. The House will miss his contribution to our deliberations.

As the noble Baroness, Lady Chakrabarti, set out, Amendments 1, 3 and 5 add the purpose of compliance with the rule of law to that of deterrence in Clause 1, requiring the Secretary of State to consider all relevant evidence and lay a statement before Parliament that Rwanda is currently a safe country. Amendment 10, tabled by the noble Baroness, Lady D’Souza, would mean that decision-makers cannot conclusively treat Rwanda as safe if the Supreme Court rules otherwise, even if Parliament had declared it safe.

The overarching purpose of the Bill is to deter dangerous and illegal journeys to the United Kingdom, which are putting people’s lives at risk, and to disrupt the business model of people smugglers who are exploiting vulnerable people. Picking up a point that my noble friend Lord Hailsham made, we know that deterrence can work. We have seen this through our Albania partnership, where we have removed more than 5,700 people, and the number of small boat arrivals has dropped by 93%. The number of migrants crossing the channel has fallen year on year for the first time since current records began, with the total arrivals in 2023 down more than a third on 2022. We know that this is not a Europe-wide trend—there has been a 16% increase in detected irregular arrivals to Europe.

This Government’s joint work with France prevented more than 26,000 individual crossings by small boat to the United Kingdom in 2023. Since July 2020, the joint intelligence cell and French law enforcement partners have dismantled 82 organised criminal gangs responsible for people smuggling of migrants via small boat crossings. However, as we know, the small boats problem is part of a larger global migration crisis—one that this Government are committed to tackling, along with our international partners.

The migration and economic development partnership—MEDP—with the Government of Rwanda is one part of our wider programme to stop the boats. This partnership will not only act as a strong deterrent but demonstrate that it is not necessary to take dangerous and unnecessary journeys to find safety, as promoted by the smugglers. This partnership with the Government of Rwanda has now been set out in a new treaty, binding in international law. As your Lordships’ House heard from my noble friend Lord Murray of Blidworth a moment ago, it has been ratified by the lower house of the Rwandan Parliament and is moving on to its upper house. This treaty has been agreed by the Governments of the United Kingdom and Rwanda and was worked on by both parties with close care and attention.

As was set out repeatedly in earlier debates, the Government respect the decision of the Supreme Court in the case of AAA v the Secretary of State for the Home Department. However, I remind noble Lords that the Supreme Court’s conclusions were based on evidence submitted prior to the High Court hearing in September 2022 and did not consider the subsequent, ongoing work that has been undertaken between the United Kingdom and the Government of Rwanda since the partnership was announced, to prepare for the operationalisation of the partnership and, later, to address the findings of the Court of Appeal.

Indeed, the Supreme Court recognised that changes may be delivered in future which could address the conclusions they reached, and as I have just set out, we have done this through the treaty. I repeat: the Bill and the treaty do not overturn or disregard the Supreme Court’s decision; they act on it.

Article 10 of the treaty ensures that people relocated to Rwanda are not at risk of being returned to a country where their life or freedom would be threatened. It ensures that people relocated to Rwanda who are not granted asylum will receive the same treatment as those recognised as refugees, including permanent residence. It strengthens Rwanda’s asylum system, including through the constitution of a new appeal body composed of judges, from Rwanda and other countries, with asylum and humanitarian protection expertise to hear individual appeals. It clarifies the availability of free legal representation for all stages of the process and availability of free legal representation for court appeals, and it enhances the functions of the independent monitoring committee.

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[Lord Clarke of Nottingham (Con)]

My Lords, my noble friend asserts that the Government are complying with the rule of law and respect the position of the courts and so on. Why does the Bill expressly rule out any court in future considering any evidence that Rwanda perhaps is not complying with the treaty that he has described, and why does the Bill expressly rule out the provision of various features of international law when it comes to consider future behaviour by the Government of Rwanda? The terms of the Bill seem to contradict the complete confidence with which my noble friend is putting forward this ideal situation that is likely to prevail for all time on the ground in east Africa.

[Lord Stewart of Dirleton (Con)]

My Lords, the point of the Bill is to move the matter into the diplomatic and political sphere. The Bill and the treaty make the point that the matters are better considered there than they are in the court. That is my answer to the point which my noble friend makes.

Regarding Amendment 2, tabled by the noble Lord, Lord Coaker, I cannot accept that the provisions of this Bill undermine the rule of law. Amendment 2, implying that this legislation is not compliant with the rule of law, is simply not right. The Bill is predicated on Rwanda’s and the United Kingdom’s compliance with international law in the form of the treaty, which itself reflects the international legal obligations of the United Kingdom and Rwanda, as my noble friend Lord Murray of Blidworth pointed out following his recent visit.

As has been stated in the debates on this Bill, the Government take their international obligations, including under the European Convention on Human Rights, seriously. There is nothing in this Bill that requires any act or omission that conflicts with the United Kingdom’s international obligations. Along with other countries with similar constitutional arrangements to the United Kingdom, and again echoing points made by my noble friend Lord Murray, we have a dualist approach, where international law is treated as separate from domestic law and incorporated into domestic law by Parliament through legislation. This Bill invites Parliament to agree with its assessment that the Supreme Court’s concerns have been properly addressed and to enact the measures in the Bill accordingly. The Bill reflects the fact—going back to my noble friend Lord Howard of Lympne’s opening points—that Parliament is sovereign and can change domestic law as it sees fit, including, if it be Parliament’s judgment, requiring a state of affairs or facts to be recognised.

The principle of recognising that certain countries are safe for immigration purposes, as your Lordships heard from my noble friend Lord Lilley, is a long-standing one that is shared by many other countries as part of their respective systems. The European Union states are not the only countries that may be safe for these purposes. Therefore, to act as the Government are proposing in terms of the Bill would not an unusual thing for Parliament to do. There is other immigration legislation in which Parliament recognises that states are generally safe. It is not akin to Parliament stating something to be the case contrary to the actual position. The Bill reflects the strength of the Government of Rwanda’s protections and commitments, given in the treaty, to people transferred to Rwanda in accordance with it. The treaty, alongside the evidence of changes in Rwanda since the summer of 2022, enables Parliament properly to conclude that Rwanda is safe.

In addressing other points raised on this matter, and echoing what I said in response to my noble friend Lord Clarke, my noble friend Lord Tugendhat moved the sphere of literary references governing discussion of the Bill in your Lordships’ House from Alice in Wonderland to George Orwell’s Nineteen Eighty-Four. The point is not that the Government are proposing that Parliament should legislate contrary to the Supreme Court’s findings, but that Parliament should pass a Bill reflecting those decisions and acting on them. We are acting on the court’s decision, not overturning it.

I respectfully echo my noble friend Lord Howard of Lympne’s point, which again echoed his important speech at an earlier stage, that the theme of this matter is accountability—the accountability of Parliament and the Government to face the consequences of their actions and decisions before the electorate.

The importance of Parliament’s judgment is the central feature of the Bill and many of its other provisions are designed to ensure that Parliament’s conclusion on the safety of Rwanda is accepted by the domestic court. The treaty sets out the international legal commitments that the United Kingdom and the Rwandan Governments have made, consistent with their shared standards associated with asylum and refugee protection. It also commits both Governments to deliver against key legal assurances, in response to the conclusions of the UK Supreme Court. We are clear that we assess Rwanda to be a safe country and we are confident in the Government of Rwanda’s commitment to operationalising the partnership successfully in order to offer safety and security to those in need.

In answer to a point made by the most reverend Primate the Archbishop of Canterbury, while Sir Winston Churchill was instrumental in drawing up the body or making possible the creation of the European convention, he did not say anything to alter the constitutional principle of the supremacy of Parliament, to which I have made reference.

I return to matters raised in the submission of the noble Lord, Lord Alton of Liverpool. He posed two questions, the first on the receipt of an answer to points made by committees of your Lordships’ House. I have checked that and it is anticipated that answers to the Joint Committee on Human Rights and the Constitution Committee will be issued by Wednesday.

The noble Lord also raised costs. The point is not that doing nothing does not have costs. We will doubtless return, later at this stage of the Bill, to the enormous expense inflicted on British taxpayers—running to billions of pounds a year—by maintaining the status quo. It is that status quo that we seek to interrupt.

[Lord Alton of Liverpool (CB)]

My point on the question of costs was not so much the £0.5 billion, but that the chair of the Home Affairs Select Committee in another place said that this was a staggering amount of money and that it was being veiled by so-called commercial confidentiality. When the Minister publishes his response to the Joint Committee on Human Rights and the Constitution Committee “by Wednesday”, will he undertake to provide further details unpacking the so-called “confidentiality” of this £0.5 billion?

[Lord Stewart of Dirleton (Con)]

If the noble Lord will permit, I will defer answering that question until later.

So it is in order to prevent the current expenditure—the cost of housing asylum seekers is set to reach £11 billion per year by 2026—that the Government propose to act. As I have said, we assess Rwanda to be a safe country and we are confident in the Government of Rwanda’s commitment in that regard. I therefore invite the noble Lord, Lord Coaker, not to press his Amendment 2, and I also invite the noble Baroness, Lady Chakrabarti, to withdraw her amendment. If the amendments are pressed, I will have no hesitation in inviting the House to reject them.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak quite briefly. The amendments in this group again demonstrate the threat to the domestic rule of law posed by this Bill. This is not the first Bill that threatens the Human Rights Act in this way, but the fact that it now seems almost commonplace for the Government to strip back human rights legislation does not mean it should go without objection each and every time.

There is much to object to in this Bill and Clause 4 is no exception. Each cut to the Human Rights Act matters and each piece of domestic law cut away in search of a quick political gain matters as well. I hope the Government listen to the arguments put forward by my noble friends and see sense.

I have to say I found this relatively brief debate quite refreshing. The noble Lord, Lord Frost, was perfectly candid with the House, and for a layman it was much easier to understand the political differences between the view articulated by the noble Lord and the view on the other side of the House. It was much easier to understand that difference than when I try to decipher the words of the Ministers when they respond to these amendments. Nevertheless, I look forward to what the Minister has to say.

[Lord Stewart of Dirleton (Con)]

My Lords, the noble Lord, Lord Ponsonby, has flung down the gauntlet and, on behalf of His Majesty’s Government, I am happy to pick it up.

I am grateful to all who participated in this debate and sincerely echo the words of the noble Lord when he said that there was a refreshing quality to this short debate. I think that the House articulated some important points and contrasting positions were properly and clearly laid out for the consideration of the House.

My noble friend Lady Lawlor opened with the support of my noble friend Lord Frost and I begin by saying, as I said at an earlier stage in the handling of this Bill, that it is important to recognise, as my noble friend did, that the levels of illegal migration to this country, perhaps to the whole of western Europe and other comparatively prosperous parts of the world, are not only placing enormous strain on us economically but straining the fabric of society and straining perhaps also public confidence in the ability of our courts and democratic legislatures to address problems.

I am grateful to both my noble friends for their broad support for the aims and objectives of the Bill. The noble Lord, Lord Frost, put it clearly and accurately in constitutional terms when he repeated that this Parliament may legislate in contravention of international law and that it is a long-standing element of our constitution.

The noble Lord also correctly identified that the high price to be paid for any such step is a matter of reputation. Reputations of countries, as of people, may be easily lost. I echo what he said about how it is difficult to adapt international treaties drawn up at different times and in different circumstances. The noble Baroness, Lady Chakrabarti, intervened on him; it seemed to me that he was not saying that he had had enough of international law but that he wished it to operate in its proper context.

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[Baroness Chakrabarti (Lab)]

I think a closer reading of Amendment 18 will demonstrate that it is not ensuring that the Government respond in a certain way. They can respond favourably or negatively to the declaration; they just need to come to Parliament and have the debate.

[Lord Stewart of Dirleton (Con)]

In her address today and I think at an earlier stage, the noble Baroness described the functioning of declarations of incompatibility in Section 4 of the Human Rights Act 1998 as an elegant compromise. I freely agree that it is an elegant constitutional compromise, which ultimately reflects parliamentary sovereignty, which lies at the very heart of our processes and constitution.

As detailed in Committee, Section 4 of the Human Rights Act in relation to the system of declarations of incompatibility is designed to strike an appropriate compromise between scrutiny of human rights and parliamentary sovereignty. Section 4 does not oblige the Government to take any specific action as a result of a declaration of incompatibility, and Section 4(6) expressly does not allow a judicial ruling to prevent the operation and enforcement of legislation passed by Parliament.

The operation of the section is to afford the Government the opportunity to reflect on matters, to listen to concerns brought by the courts and to act upon them as they see fit. I do not consider it necessary to adopt the amendment which the noble Baroness has tabled and argued for. I do so purely on the basis that the history of the application of this section, in my view, respectfully, shows it to be working.

The noble Baroness, Lady D’Souza, tabled Amendment 47, seeking to undermine Section 4(6) of the Act by providing that a declaration of incompatibility results automatically in the legislation ceasing to have effect. It seeks to give such declarations a binding character, and, as I said a moment ago in relation to the noble Baroness’s point, that is contrary to what those provisions were designed to be and removes discretion or oversight as is currently afforded to the Government and Parliament as to what action would be most appropriate to take in the circumstances.

It has been the accepted practice since the introduction of the Human Rights Act for the Government to address such declarations either through primary legislation or by way of a remedial order. Again, given how well the declaration of incompatibility procedure is working and has worked in the past, I respectfully submit that there is no reason for us to innovate on that basis. These amendments are therefore not only unnecessary but inappropriate in their attempt to legislate for parliamentary procedure in this manner. The declaration of incompatibility procedure works well to strike the right balance, and there is no reason to upset it.

I was addressed on the subject of the remarks made by the Lord Chancellor to the Joint Committee on Human Rights. As your Lordships have said—it was predicted that I would refer to this again, and I will—the Lord Chancellor recently set out in his letter to the Joint Committee that while

“it is a fundamental tenet of modern human rights that they are universal and indivisible … it is legitimate to treat people differently in different circumstances”.

For example,

“a citizen may legitimately be treated differently, and have different legal rights from, a non-national”,

recognising that there is a difference between a citizen and a non-national. The convention,

“as interpreted by the case law of the ECtHR … recognises this principle”

in full.

“There is nothing in the … Bill that deprives any person of any of their human rights: in accordance with Article 1 of the ECHR, we shall continue to secure to everyone within our jurisdiction the rights and freedoms defined in the Convention. What we can legitimately do, and what we are doing, is to draw legal distinctions between those with a legitimate right to be in this country, and those who have come to this country illegally”.