Safety of Rwanda (Asylum and Immigration) Bill

Michael Tomlinson Excerpts

Committee of the whole House
Wednesday 17th January 2024 Commons Chamber

[Gavin Robinson]

It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Sir Robert Neill), Chair of the Justice Committee. He said that at times we will see a collision between, or an interface with, politics and the law, and I hope that what arises from my contribution is that there is a third element, which is principle.

Throughout the passage of this Bill, and indeed some of the precursors to it, we have advanced a number of principled positions, one of which challenges the basis of the legal aspiration contained in the Bill, while another rightly makes the challenge that it does not matter how hard some might suggest that this is the most robust piece of legislation if it does not do what it is intended to do and is not going to work, and that it is an unprincipled place to be with the British electorate to suggest that all these steps are in earnest and have some virtue while knowing that they are inconsistent and will not work. I made those points during the passage of the Nationality and Borders Act 2022, and Ministers on the Front Bench at the time told me that I was entirely wrong, that there was no need to strengthen the provisions and that that Bill would do what they said it would. Yet now I hear, throughout discussions on this Bill and in this Committee, the very same people who then occupied the Front Bench adopting the same arguments that we deployed for the Nationality and Borders Bill.

I still find it thoroughly inconsistent in the context of this Bill that our Government have reached the position where they have an agreement with Rwanda that also involves our country accepting refugees from Rwanda, which is therefore a country deemed capable of producing refugees. It is incongruous to me that a country deemed safe by this Parliament should be capable of producing refugees from that very same country. I have not heard a robust argument as to how that is not an inconsistent position.

[The Minister for Countering Illegal Migration (Michael Tomlinson)]

I am grateful to the hon. Gentleman for giving way and giving me a chance to put him right. I offer the example of the transit mechanism that is in place, whereby Rwanda is already hosting refugees from Libya—Rwanda, in its generosity and safety, is hosting hundreds of thousands of refugees. That is how.

[Gavin Robinson]

If the Minister is prepared to say that the only refugees who can come to the United Kingdom from Rwanda are those who have been produced as refugees from other countries, that is an absolutely fair point, but I do not think that is the point he is making. I am very happy to let him intervene again but I genuinely do not think that is the point he is making.

The point I am making is that it is entirely inconsistent to say on the one hand that we will accept refugees from a country and on the other hand to deem that country as safe. I accept our right to do it, however, and I do not quibble with the Government’s aspiration that Rwanda is a safe country. I do not quibble with that; I just say that there is a complete juxtaposition between on the one hand saying it is safe and on the other accepting refugees from that very same country.

I recognise the nature of Committee stage, but I make the point again to the shadow Minister that this is not about his valiant opposition in Committee or on Third Reading, or what passed on Second Reading; it is about the Labour party’s opposition on this Bill, which I have no doubt will fold in the other place. The political choice will be the Labour party’s to make; there is no second Session or additional Session of this Parliament. There will be no Parliament Act available to pass the Bill and it is going to be tortured in the other place. The Bill will be tortured in the other place and the only way it will emerge or emanate from this Parliament is if a political calculation is made by the Labour party that there is too much political cost in opposition to the Bill and they draw stumps and allow it to pass. I reiterate that point; I am saying it very clearly now and I suspect that in a number of months’ time the point that is being ignored today will become quite acute in our political discourse.

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[Michael Tomlinson]

With your permission Sir Roger, may I on behalf of His Majesty’s Government pass on my sincere condolences to the family and friends of Sir Tony Lloyd, the former Member of Parliament—

[The Second Deputy Chairman of Ways and Means (Sir Roger Gale)]

Order. I am sorry to have to interrupt on such a sensitive issue, but Mr Speaker intends to make a statement about that later.

[Michael Tomlinson]

I am very grateful for that guidance.

May I start by turning to those who have contributed to this debate? I thank my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) for his powerful points, challenging, forensic and learned points. He once again questioned what solutions are being offered by the Labour party, and he was right to do so. Answer came there none.

May I thank my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes)? As so often, he debated in poetry, and I will come back to some of his remarks in due course. I also thank the Chair of the Home Affairs Committee, the right hon. Member for Kingston upon Hull North (Dame Diana Johnson). She was right to ensure that she did not make a Second Reading speech, but she did mention one or two amendments and other matters, and I shall turn to those in due course.

I thank my hon. Friend the Member for Ruislip, Northwood and Pinner (David Simmonds). He is always thoughtful, measured and so often right, and I am grateful to him for his contributions and also for his interventions during the latter stages of this debate. The hon. Member for Glasgow Central (Alison Thewliss) cited Robert Burns and asked what he would have to say to those on the Conservative Benches. My hon. Friend and neighbour, the hon. Member for North Dorset (Simon Hoare), rather cheekily from a sedentary position suggested that Robert Burns might say to Conservative Members, “How can I join you?” That was not the gist or the thrust of her speech, but it was a cheeky intervention that I enjoyed none the less. I shall turn to her amendments in due course.

I listened to my hon. Friend the Member for Don Valley (Nick Fletcher), as I always do, and I hope to be able to turn to some of the points that he made and hopefully allay some of his fears. He said sometimes the Chamber empties, or is not as full, when he speaks. That sometimes happens to Ministers as well—that not everyone is back when they are responding to Members’ contributions. But my hon. Friend is here, and I am grateful to him for sitting through so much of this debate and for his characteristic courtesy.

My hon. Friend the Member for Ipswich (Tom Hunt) spoke with passion, as he always does, and I am grateful to him for his contribution. My hon. Friend the Member for Isle of Wight (Bob Seely) spoke at some length, and I am grateful to him for that. He delved into the principles of the ECHR, and he was enticed by my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) to make some pronouncements on some of its judgements, which I thought was a little mean. None the less, my right hon. and learned Friend did proffer one suggestion, namely the case of Hirst, and I am grateful to him for that.

I am grateful to my hon. Friend the Member for Broadland (Jerome Mayhew) for his intervention and for being on duty not only in Westminster Hall, but also here in this Chamber.

The course of the debate has been constructive, on the whole. I agree that it has been broadly thoughtful and instructive. We have had exchanges on scripture, and as a lawyer, it was a joy indeed to hear the word “otiose” not once or twice, but several times. We once even heard “otiose with bells on” from my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), and I am grateful to him for that. I have not heard that expression before; it must be a legal reference that I brushed past in my youth.

We also heard about box sets from my right hon. Friend the Member for Newark (Robert Jenrick) and the hon. Member for Glasgow North (Patrick Grady), and I will need to do a bit more research on that. We touched on ECHR membership, although my right hon. Friend the Member for Newark rightly said that this was not the place to have that full debate, but he set out some of the parameters for future debates that I am sure we will have.

Clause 1 sets out the rationale for the Bill. It sets out the legal obligations and how the treaty to which the Government of Rwanda have agreed addresses the concerns that were set out by the Supreme Court. Amendments 39, 40, 41 and 42, tabled and addressed today by the hon. Member for Glasgow Central (Alison Thewliss), and amendments 43 and 44, tabled by the hon. Member for Aberdeen South (Stephen Flynn), seek to exclude the core of those provisions. The hon. Member for Glasgow Central was clear about her intention in that regard. The treaty is binding in international law and, in accordance with Rwandan law, will become domestic law in Rwanda on ratification. That is set out in detail and confirmed in article 3(6) of the treaty. It rules out anyone relocated to Rwanda being removed from there, except to the United Kingdom. That is an important part of the treaty, set out in article 10(3), and that is regardless of whether the individual is found to be a refugee or to have another humanitarian protection need. That removes the risk of refoulement.

Everyone relocated to Rwanda will receive the same treatment. Those with refugee status, those with a humanitarian protection need and even those without that status will be able to stay in Rwanda and will receive the same rights and treatment. That addresses head on the concern that the Supreme Court set out. The asylum decision-making process is being significantly reformed. Annex B of the treaty—if I have time, I might turn to the details of that—contains strengthened monitoring arrangements, and there are also strengthened monitoring arrangements to ensure adherence to the obligations.

I am grateful to my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) for his engagement. I do not believe that his concerns are right. He said “offensive or otiose”. I would suggest that neither is right, and I hope to be able to reassure him, because clause 1 makes clear that Parliament is sovereign and that its Acts are valid notwithstanding any interpretation of international law. I will come back to that “notwithstanding” terminology, which has been so contentious, perhaps, in recent history. What it does not mean is that we are legislating away our international obligations. The purpose of the Bill is to say that, on the basis of the treaty and the evidence before it, Parliament believes that those obligations have been met. It does not mean that we do not care whether they have been met. He mentioned dualism and was right to do so.

The parts of the clause to which my right hon. and learned Friend’s amendments are directed do no more than make clear what we mean by a safe country, which is a key definition applied to Rwanda, namely that the United Kingdom can remove people to that country in compliance with its international obligations and that Rwanda will not remove anyone in breach of any international law. As a former Attorney General, he also mentioned the Law Officers convention. I was grateful to him for that, for so often in this Chamber it goes unnoticed. It is an important convention, and as a former Law Officer myself I abide by it very strictly, as I know he does, so I am grateful to him for reminding the House of it.

Turning to the amendments tabled by and the speech of my right hon. and learned Friend the Member for South Swindon, I am grateful for his contributions not just today but yesterday. It is important that the will of Parliament is made clear and that, following the mammoth efforts between our Government and the Government of Rwanda, the obligations that we have agreed are fully set out. Clause 1 ensures that it is crystal clear that it is Parliament that has considered and concluded that Rwanda is a safe country. I know his concern about this sort of clause, but he will know that it is not unique and that it is not dissimilar to clause 1 of the Illegal Migration Act—[Interruption.] I suspect he is encouraging me not to pray that in aid, but it is a fact all the same that it is not unprecedented to have a clause such as clause 1 in a Bill.

I turn to clause 3. The United Kingdom has a long-standing tradition of ensuring that rights and liberties are protected domestically and of fulfilling our international human rights obligations. We remain committed to that position and will ensure that our laws continue to be fit for purpose and work for the people of the United Kingdom. Though some of the provisions in the Bill are novel, the Government are satisfied that the Bill can be implemented in line with the convention rights.

However, it has become clear that people will seek to frustrate their removal by any means. Therefore, this Bill goes further than the Illegal Migration Act, which was taken through by my right hon. Friend the Member for Newark and my right hon. and learned Friend the Member for Fareham (Suella Braverman). As we have heard, that Act only disapplies section 3 of the Human Rights Act, whereas this Bill, and particularly clause 3, disapplies further elements of the Act. The effect is that the duty under section 6(1) of the Human Rights Act is disapplied for any public authority, including any court or tribunal, that is taking a decision based on the duty under clause 2 of the Bill to treat the Republic of Rwanda as safe.

I turn now directly to the amendments tabled by my right hon. Friend the Member for Newark, starting with his amendments 11 and 18. He is right that the Bill does not seek to disapply section 4 of the Human Rights Act; it does not, in fact, disapply the declaration of incompatibility provisions in section 4. That is the only substantive remedy against the conclusive presumption that Rwanda is safe. Retaining declarations of incompatibility is important, but of course the final say on this matter will rightly remain with Parliament and with the Government because of section 4(6) of the Human Rights Act, which makes it clear that a declaration cannot affect the operation or the validity of domestic legislation.

[Sir Robert Buckland]

My hon. and learned Friend makes an important point about the extent to which the courts should and can intervene on issues relating to the compatibility of primary legislation with the ECHR. The section 4 procedure allows the courts to express a view, but does not trespass directly upon the functions of this place in dealing with the problem. It simply gives Parliament an opportunity to rectify any situation—or not, frankly. Does he agree that section 4 is a much better mechanism for the courts to use than the clunky, inelegant and sometimes very problematic section 3 procedure?

[Michael Tomlinson]

I hear what my right hon. and learned Friend says about section 3 and I agree with him wholeheartedly. He is right to describe it as clunky, and it has been disapplied in this Bill as well as in the Illegal Migration Act.

If I may say so directly to my right hon. Friend the Member for Newark, I accept entirely his comments that he is here to help the Government and that he believes passionately in this policy. He has had several very frank, open and honest conversations with me about that, both in this Chamber and outside it, and I am grateful to him for putting his points so ably and so clearly, but the disapplication of those sections within the Bill significantly reduces the extent to which public authorities are bound to act as a consequence of the convention rights.

May I turn to clause 5 and the further amendments tabled by my right hon. Friend the Member for Newark? Clause 5 makes it clear that it is for a Minister of the Crown alone to determine whether to comply with an interim measure of the Strasbourg Court. It also makes it clear that the domestic courts may not have regard to the existence of any interim measure when considering any domestic application flowing from a decision to remove a person to Rwanda in accordance with the treaty.

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[Jonathan Gullis (Stoke-on-Trent North) (Con)]

The Minister just said that there will be circumstances in which we will ignore pyjama injunctions. What are the circumstances in which the Government will not ignore them and will therefore comply with them?

[Michael Tomlinson]

I could not have been clearer. There is the confirmation that we have the power, we would use the power, and the civil service will give effect to it.

Let me respond directly to my right hon. and learned Friend the Member for Fareham? She spoke powerfully, as she always does, and I always listen carefully to what she says. She set out a number of cases in which medical reasons were cited in court. Medical arguments were presented that, as she said, frustrated the will of this place. In fact, section 39 of the Illegal Migration Act—the very Act that she took through this place with my right hon. Friend the Member for Newark—addresses that exact point about medical records and medical evidence.

The following are examples of harm that do not constitute serious and irreversible harm. The first is:

“where the standard of healthcare available to”

the person

“in the relevant country…is lower than”

that available in the United Kingdom. It is there in the statute, in the Bill that we passed last year.

The second example is:

“Any pain or distress resulting from a medical treatment that is available to”

a person

“in the United Kingdom not being available to”

a person

“in the relevant country”.

That is not, does not and will not constitute serious and irreversible harm.

My right hon. and learned Friend the Member for Fareham is right to be concerned about that, but those concerns have been addressed and met in the legislation we have passed, and in the legislation that is mirrored in the Bill.

Let me turn to the important provisions of clause 8. I will directly address the hon. Member for Belfast East (Gavin Robinson) and his submissions in response to new clause 3. Nothing in the Windsor framework, including article 2, or in the withdrawal agreement affects the Bill’s proper operation on a UK-wide basis. Any suggestion to the contrary would be to imply that the scope of the rights, safeguards and equality of opportunity chapter of the Belfast/Good Friday agreement is far more expansive than was ever intended.

[Stella Creasy]

Will the Minister give way?

[Michael Tomlinson]

I will not give way.

We are unequivocal that that is simply not the case, and article 2 of the Windsor framework is not engaged. I would be happy to write further to the hon. Member for Belfast East and the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) on that point to set out further detail. I hope I can reassure the hon. Member that we have already achieved the aim he seeks.

[Sir William Cash]

Will my hon. and learned Friend give way?

[Michael Tomlinson]

I will give way, but my hon. Friend must be conscious that we are up against a very tight deadline.

[Sir William Cash]

On the statements he made with regard to rule 39 and so forth, can my hon. and learned Friend explain to the Committee how the Government would be able to prevent a judicial review of the decision taken by the Minister without legislation?

[Michael Tomlinson]

My hon. Friend has heard what I said on that point. I respect and admire him; he knows the esteem that I have for him. We have a good-faith disagreement on the effect of clause 5, but the clause is clear: it is for a Minister to decide, and a Minister will decide.

[Stella Creasy]

Will the Minister give way?

[Michael Tomlinson]

May I finish my point in response to the hon. Member for Belfast East? I hope I can reassure him that we have already achieved the aim he seeks. The Bill will apply across the whole of the United Kingdom, in line with the application of our sovereign immigration policy across all four nations of the UK as a territorial whole. I am grateful to the hon. Member for his kind and generous comments about me personally, and for his engagement. I will continue to engage with him on this issue.

We have made progress towards stopping the boats, with small boat crossings down by a third in 2023, but we must do more. The only way to do so is if it is abundantly clear that illegal entry will never lead to a new life in the United Kingdom. The power of deterrence is proven beyond reasonable doubt by the success of our agreement with Albania. Parliament and the British people want an end to illegal immigration, and we need a deterrent. We have a plan—a plan to stop the boats—and I invite all right hon. and hon. Members to back it.

[The Second Deputy Chairman of Ways and Means (Sir Roger Gale)]

Amendment 11 has been proposed. Mr Jenrick, do you wish to press it to a vote, or do you wish to withdraw it?