Safety of Rwanda (Asylum and Immigration) Bill

Lord Tugendhat Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

I emphasise the practical point that this clause puts Parliament on a quite unnecessary collision course with the courts, both domestic and international. Amendment 3 would not solve all the Bill’s problems; it would not even stop Clause 1 from being pointless, but it would at least render it harmless and that is why I support it.

[Lord Tugendhat (Con)]

My Lords, like other noble Lords, I was unable to be present for Second Reading two weeks ago, but I cannot allow the Bill to pass through the House without making my deep concern about it evident in public. I am speaking on this group of amendments because they go to the heart of my concern.

I have been a Member of Parliament for a very long time, on and off, and a member of the Conservative Party for some 66 years, when I counted it up. I find it quite extraordinary that the party of Margaret Thatcher should introduce a Bill of this kind. Like some other noble Lords, I have a clear memory of the great battle that Margaret Thatcher fought with the European Union—the European Community in those days—over the British budget contribution. From time to time, it was suggested that she should cut the cackle, put the continentals in their place and cut off the British contribution. That would have been very dramatic, and very popular in some circles, but she did not countenance the idea because she believed that it would be contrary to the law. There were those who warned that it might even run into trouble in the British courts. How different that is from this Bill and the way in which we are now asked to behave towards the Supreme Court and the European Convention on Human Rights.

This is no esoteric matter that concerns only the subject under discussion and is of interest only to lawyers. We in this country frequently boast that Britain is such a marvellous place to do business because of our great respect for the rule of law and because the Government, unlike some Governments of the world, can be relied on not to make arbitrary and unreasonable acts. It is very difficult to sustain that argument in the light of the Bill now before us. I do not know whether those who envisage doing business in this country will draw that conclusion or not, but we are going against a fundamental interest, not just on this issue but for our wider reputation.

What we are asked to do represents the sort of behaviour that the world associates with despots and autocracies, not with an established democracy nor with the mother of Parliaments. It is a Bill we should not even be asked to confront, let alone pass.

[Lord Falconer of Thoroton (Lab)]

It is a privilege to follow what the noble Lord, Lord Tugendhat, said, and I strongly agree with it. I will focus on two things in relation to what the Government are asking us to do. Before that, I apologise for not having been here at Second Reading—I, too, was abroad. I declare an interest as a member of the Constitution Committee of this House, which published a report unanimously expressing very considerable concerns about the Bill.

I have two concerns about the Bill. As a nation, we have accepted for the last 70 years that we will not deport asylum seekers to a place where they may face death, torture or inhuman treatment, and that, if asylum seekers feel that that is a risk, they can seek protection from the courts. The courts may well give an applicant short shrift if they do not think there is anything in it, but we have stood by that protection for 70 years and incorporated it into our domestic law in the Human Rights Act 1998. The Bill envisages the possibility—or indeed it being the more-likely-than-not result, according to those who have looked at it independently—that people will be sent to Rwanda, where they will be at substantial risk of being refouled, which means sent back to a place where they could be tortured or killed.

The claim made by the Government is that we have entered into an agreement with Rwanda that says it will not send anybody who comes from here to anywhere except the UK, to which the answer is that given by the international treaties committee: that the reason there was a risk of refoulement was that Rwanda did not even have the most basic system of properly assessing asylum claims. The idea that the Bill envisages—that the moment the new treaty comes into force, it will provide that protection—is absolute nonsense. Everybody appreciates that except, as far as I can see, the right honourable Mr James Cleverly, the Secretary of State for Home Affairs. If we look at the conclusions that the Supreme Court introduced, we see that, factually, it is just a non-starter.

The Government say, and I am sure that the noble Lord, Lord Sharpe, will confirm it on their behalf, that they stand by the commitment we have made for the last 70 years that asylum seekers will not be exported to a place where they might be refouled. If that is their true position, how on earth can they allow this? The international treaties committee also said that, quite separately from the fact that we would need to reform completely Rwanda’s asylum system, we would have to enter into a number of other detailed provisions before it could be seen whether the provision in the new agreement prevented refoulement. Those agreements have not yet been entered into with Rwanda, and there is no requirement for them to be so before the Bill becomes law.

My first big objection to the Bill is that it goes against commitments we have made as a nation and stood by for the past 70 years. If we are looking for solutions to the problems of immigration in the world, turning our backs on all the international agreements that we have made seems a very bad start indeed.

My second big objection to the Bill is that it fundamentally crosses over the separation of powers. The noble Lord, Lord Howard of Lympne, whom I greatly admire—he was a member of our Constitution Committee—said, “Oh, don’t worry. We’re just taking the opinion of the former Lord Chief Justice, who is the dissenting voice in the Court of Appeal”. No, that is not what the Government say they are doing. They are saying, “We’ve taken account of the Supreme Court judgment. We respect that judgment. We’re not going with the former Lord Chief Justice’s judgment; we’re dealing with the points that have been made—and, by the way, dealing with them while not letting anybody question us about that”. That is absolutely not the role of this House or the courts.

What this Bill leads to is Parliament delivering what the noble and learned Lord, Lord Garnier, described as silly, but is so much more profound than silly. I quite agree with him that the beginning of the Bill is very silly in the way that it reads—it is a cack-handed attempt to deliver a judgment, like a court would read—but it is not silly; it is dangerous.

Think of three examples. First, Parliament can say, “Even though we see Rwanda refouling people we are sending, and it is sending Afghans, Syrians and Iraqis back to death or torture, we will do nothing”. We will say that that is okay because we made our judgment that it was a safe country.

That is one example. Let us take another. Suppose the Prime Minister has a friend or a crony in the House of Commons who is convicted in a court of corruption of some sort. The Prime Minister then presents a Bill to Parliament, saying, “It is the judgment of Parliament that Snooks MP actually wasn’t able to present this new evidence to the criminal court that convicted him, so it is the judgment of Parliament that Snooks MP is innocent”. That is the route this Bill takes Parliament down.

Take a third example: the Electoral Commission decides that it will not investigate some problem of, say, not complying with expenses and the courts then say, in relation to that decision, “The Electoral Commission was overinfluenced by party-political considerations”—for example, the governing party was very unkeen for there to be a proper investigation of some expenses fraud in an election, and on judicial review the Electoral Commission’s refusal to investigate was set aside on the basis there was no basis not to investigate. Once again, relying on this precedent, the Government of the day, assuming they have a big majority, can produce a Bill that says, “It is the judgment of Parliament that the courts have got that opinion wrong”—as the noble Lord, Lord Howard of Lympne, introducing a whole new concept in the law, said is the position.

That is the danger of this Bill. I am not sure that I support all my noble friend Baroness Chakrabarti’s solutions—in particular, I am not sure the reference to the United Nations commissioner on refugees is the right source—but, my goodness, if we start letting Parliament make such judgments, we open a door that will be incredibly difficult to close. We in this House surely should not give effect to it.

I have one final point. The noble Lord, Lord Murray of Blidworth, said, “Don’t worry, it’s all Clause 4”. It is not. Clause 4 allows appeals to be made only by people who say something different from “the country is not safe generally”; it is only if there is something specific about them. If, for example, I am a voluble member of the Rwandan opposition and I am then sent to Rwanda, where I may get tortured or killed, then I have a ground, but if I am from Syria or Afghanistan and Rwanda is refouling regularly, I have no basis for appealing.

My first point is that we should stand by our commitments to asylum seekers. My second is: do not listen to this siren song that this is not a fundamental change in our constitution. It is, and it will be the foundation of very bad things to come.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Tugendhat Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Tugendhat (Con)]

My Lords, I will briefly address the point raised by my noble friend Lady Lawlor. The Conservative Party is a great historic party, and there is a lot to be said for drawing on the wisdom of ages. What my noble friend Lord Deben said a few minutes ago about Mrs Thatcher’s attitude, Douglas Hurd’s attitude and so forth is something we ought to consider. They were important figures in our history; they contributed a great deal to the country as well as the party.

If one goes back further, one of the progenitors of the European Convention on Human Rights was of course David Maxwell Fyfe, Lord Kilmuir, one of our Lord Chancellors. He was working under the supervision of Winston Churchill, who regarded the European Convention on Human Rights as a great achievement. Now, my noble friend Lady Lawlor may feel that our present Front Bench understands the world better than Winston Churchill or Mrs Thatcher. Perhaps it does; I am not sure.

[Baroness Lawlor (Con)]

My Lords—

[Lord Tugendhat (Con)]

Let me finish. It is also finally worth remembering that the one Conservative Prime Minister since the war who did not have the same respect for the rule of law and international law as the people I have mentioned was Anthony Eden. He does not stand as high in the historic record as Churchill or Thatcher.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Tugendhat Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

[The Archbishop of Canterbury]

My Lords, at this stage of the debate on this group, we are looking at two distinct things. One is the question of whether Rwanda is safe. If, as the noble Lord just said, it is unquestionably safe, it seems to me that these amendments are not a problem because, at that point, the Secretary of State can easily say, “It’s safe”, and they will have evidence of that, for this and future Governments.

However, the object of this group is the rule of law, which is the main subject we are looking at. Going back to the development of international human rights law, particularly in the period after 1945, there is a difficulty in totally separating domestic and international law. The rise in international human rights law grew out of the horrors of the 1940s. In 1933, the German Government were legally and properly elected, and passed horrific laws that did terrible things, starting from within a few weeks of the election of Adolf Hitler. That continued, and most historians agree that the first two elections gave the Nazi Party a legitimate majority.

Winston Churchill’s advocacy of the European Court of Human Rights after the Second World War grew up in order to give a fallback where domestic law was not doing the right thing, by linking it to international law and ensuring that there was a stop that said, “You can do this perfectly legitimately domestically, but that doesn’t mean it’s always right and always the right thing to do”. Let us be clear: we are not in a situation remotely like that. The Government are not doing something on the scale of what we saw at that stage. But they are challenging the right of international law to constrain our actions.

The point of international law is to stop Governments going ahead with things that are wrong. The noble Lord, Lord Lilley, made two very good points, particularly in his questions. But one thing I was brought up believing and even, believe it or not, something I was told when I was trained as a clergyman—we do get trained, although that may sound surprising from time to time—was that it is a basic rule of ethics and morality that two wrongs do not make a right. So the fact that we have done the wrong thing in the past does not automatically make it right today.

[Lord Tugendhat (Con)]

My Lords, it is a privilege to follow the most reverend Primate. I begin by saying how much I agree with every word that my noble friends Lord Clarke and Lord Hailsham said about my old friend Patrick Cormack. He was a good man and will be very much missed. I cannot add to what they said, but I say this humbly and with great warmth.

At this stage of the proceedings, our task is to try to persuade the House of Commons to improve the Bill. Failing that, it is to draw attention to the implications of leaving the Bill as it is. I support this amendment, and others that will follow, because I believe that the failure to amend the Bill will have profound implications. The Government will, in fact, be behaving like the ruling party in George Orwell’s Nineteen Eighty-Four. Normally, Nineteen Eighty-Four is invoked in relation to government behaviour, laws, events and so forth in tyrannies and dictatorships. This country is no dictatorship—it is a democracy. Nevertheless, in this Bill the Government are seeking to achieve by Act of Parliament what in Nineteen Eighty-Four the ruling party and its apparatchiks sought to achieve by torture.

Many noble Lords will remember the scene towards the end of the book in which Winston is being interrogated by O’Brien and is forced to say that Oceania is and always has been at war with Eastasia, although he knows for a fact that it was until recently at war with Eurasia. When O’Brien holds up four fingers, Winston is obliged to say that he sees five, as an act of obedience to the party. However many fingers O’Brien holds up, the answer is always the same—just as, whatever the evidence to the contrary, Oceania has always been at war with Eastasia. Likewise, with the Bill as it stands, it does not matter what the Supreme Court has said about the present or how conditions in Rwanda might evolve in future—the answer is always the same: Rwanda is a safe country. If the Bill goes on to the statute book in its present form, Rwanda will be a safe country, regardless of reality, until the statute is repealed.

Rather than going down that route, we should take our cue from what Margaret Thatcher told the House of Commons on 17 July 1984—as it happens—when a judge had held that a decision her Government had taken in connection with GCHQ was illegal. She said that

“I, rightly, cannot overturn the decision of a court, and I would not wish to do so … at the end of the judicial process Governments, of course, accept the courts’ final ruling. That is what the rule of law is all about”.—[Official Report, Commons, 17/7/1984; cols. 173-74.]