Safety of Rwanda (Asylum and Immigration) Bill

Robert Buckland Excerpts

2nd reading
Tuesday 12th December 2023 Commons Chamber

[James Cleverly]

I am going to make progress. I have been generous, but I want others to have the chance to speak.

Anyone removed to Rwanda under the provisions of this treaty will not be removed from Rwanda except to the United Kingdom, in a very small number of limited and exceptional circumstances. Should the UK request the return of any relocated person, Rwanda will return them. Decision makers, including myself or the holder of the post of Home Secretary, an immigration officer and the courts must all treat Rwanda as a safe country. They must do so notwithstanding the relevant UK law or any interpretation of international law by courts or tribunals. That includes the European convention on human rights; the refugee convention; the international covenant on civil and political rights; the United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment; the Council of Europe convention on action against trafficking in human beings which opened at Warsaw on 16 May 2005; customary international law; and

“any other international law, or convention or rule of international law, whatsoever, including any order, judgment, decision or measure of the European Court of Human Rights.”

The Prime Minister has been crystal clear that he, and the Government he leads, will not let foreign courts destroy this Rwanda plan and curtail our efforts to break the business model of the evil people-smuggling gangs.

[Sir Robert Buckland (South Swindon) (Con)]

My right hon. Friend makes the point about foreign courts, but what about domestic courts? Is there not a danger that, in pursuing quite stringent measures in this Bill, we are really testing the principle of comity to breaking point? This House and this Parliament are sovereign, but we also have the independence of the courts and the rule of law to bear in mind, and restraint on both sides—by the judiciary and by this place—is essential if we are to maintain the balance of our constitution.

[James Cleverly]

My right hon. and learned Friend knows I have a huge amount of respect for him, not just as a friend and an individual, but for his experience at the Bar at a very high level. He raises an important point, and I want to give him complete reassurance that we have looked very carefully at that balance he speaks about and we respect the importance of that. We genuinely believe this Bill gets the balance right, although, because of the growing nature of this extreme and perverse trade in human misery, we have to take firm action. We are therefore acting in a way that maintains that balance. It is novel. He says it is contentious, and that is true, but we are doing it because we have to break this business model. We have to do this.

When the European Court of Human Rights—this speaks to the point made by my right hon. Friend the Member for North East Somerset (Sir Jacob Rees-Mogg) just a moment ago—indicates an interim measure relating to the intended removal of someone to Rwanda under, or purportedly under, a provision of the Immigration Act, a Minister of the Crown alone, not a court or tribunal, will decide whether the UK will comply with that interim measure.

In order to further prevent individual claims to prevent removal, the Bill disapplies certain relevant provisions from the Human Rights Act 1998 in particular circumstances, including sections 2, 3, 6, 7, 8 and 9. This is lawful, this is fair, this is necessary, because we have now addressed every reason that has been used to prevent removal to Rwanda. We have blocked asylum claims from being admitted with legislation that has already passed through this House: when the Illegal Migration Act 2023 is enforced, modern slavery disqualification provisions will assist with speedy removal.

The only possible blocking of removal is if an individual can demonstrate, with compelling evidence, that there is an immediate risk of serious and irreversible harm to them in particular under their individual circumstances. That sets the bar rightly very high, so that the chances of that happening are rightly extremely small. The only way to deter people from coming here illegally is to convince them that if they do, they will be unable to stay. Instead, they will be detained and swiftly removed to a safe third country, or their home country, if it is safe to do so.

--- Later in debate ---

[Sir Robert Buckland (South Swindon) (Con)]

It is a pleasure to follow the hon. Member for Rhondda (Sir Chris Bryant), and I was pleased to hear his strong invocation of the fallacy that we live in a separation of powers constitution. We do not; we live in a constitution of checks and balances. We are proud to have an independent judiciary and an independent legal profession underpinning the rule of law, which we are all equal under and subject to. We also have a Parliament that is supreme—the “Crown in Parliament” is the phrase. That is why, like my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), I take issue with some of the wording in clause 1, but that is by the bye.

The principle of comity is one that we can ill afford to overlook. What do I mean by that? I am talking about the mutual respect that has to exist between the different arms of the constitution. This place is sovereign—we derive our sovereignty from the people—but we also have a responsibility to use that in the responsible way. This is not a new challenge; previous generations have faced similar dilemmas.

I am not going to stand here and minimise the emergency that we face from illegal migration or the challenge that the entire west faces from the mass migration of people who might seek a better life and who are either fleeing war-torn countries or coming for economic reasons. This is an unprecedented challenge for all western democracies. However, such challenges have been faced in the past. When we were at war, we had to make very difficult decisions in this Parliament to make sure that we struck the right constitutional balance in defending these islands against dictatorship, but not in a way that defended us and protected us out of our very freedoms. Our very liberty itself is at stake, and the way in which we legislate has to be responsible and in line with that respect for our fundamental freedoms.

As my right hon. and learned Friend the Member for Torridge and West Devon (Sir Geoffrey Cox) said, there is a fundamental truth here that we cannot avoid: if this Bill is amended to create an utter and complete ouster from any individual-based challenge, that goes beyond the parameters of reasonableness and into the sort of legislation that inevitably sets up a fistfight, not with international courts, but with our very own courts.

[Sir William Cash]

My right hon. and learned Friend is more than aware of the Privacy International case. He knows, as well as I do, that there was a dissenting judgment in that case by both Jonathan Sumption and Lord Reed, which sums up the situation. It is very finely balanced on the facts of that particular case.

[Sir Robert Buckland]

Contrary to mythology within the Conservative party, my hon. Friend and I agree on many of these key issues. He and I would have legislated over the Evans decision about the Prince of Wales’s letters, because we felt that their lordships went too far. That is an example of this House and this Parliament potentially legislating to correct a legal decision by the courts. Of course we are entitled to do that and we should do it where the will of Parliament dictates.

However, there is a difference between a scenario like that and the one that we face at the moment. Without more evidence and work by the Government, to blithely create a deeming provision in the face of a very strong Supreme Court decision against the Government would have been to invite disaster. That is why not only the treaty that has been signed between Rwanda and Britain is crucial, but also the policy statement that has been published by the Home Secretary today and laid in the House, which I urge all right hon. and hon. Members to read. There is no doubt that the facts are evolving and changing. We should remind ourselves that when the Supreme Court made its decision it looked at the law and the facts as of the summer of last year—some 18 months ago—and we have moved on considerably.

The new provisions are not constitutionally unprecedented. They are unusual, which is why the Government must be restrained. Without clause 4 in the Bill, I am afraid that the Government will set up a massive glass jaw to be smashed by a court in the future, and to invite the sort of constitutional conflict that any good Conservative would not want to see. We do not want our courts being drawn into politics. I have spent my career in this place and my political life arguing against the politicisation of the judiciary, and I have been the first to bring forward legislation to oust the court’s jurisdiction. We did so in the Judicial Review and Courts Act 2022, on the Cart judicial review—my hon. and learned Friend the Member for Mid Dorset and North Poole (Michael Tomlinson) finished the job on that.

I am more than happy to be robust about the position of this place and the importance of not having undue and capricious interference with the will of Parliament. I am the first person to assert the authority of this place, but I will not be party to legislation that, in effect, invites the courts to “Come on up, if you’re hard enough”. That is not the approach that we, as responsible Conservatives, should take. To echo the point made by my hon. Friend the Member for Bromley and Chislehurst, if this Bill is to be amended in any way that crosses that line, I cannot and will not support that.

If anything, the Government should be thinking carefully about ensuring that the Bill is engineered to provide as perfect a balance as possible between their obvious right, as a Government, to get their policy object through, to reflect the huge concerns of our constituents, but, at the same time, to work within the parameters of our unwritten constitution. Today we have a Conservative Government, but what if a Government of another colour was doing something that we, as Conservatives, found mortally offensive? What would we have to rely upon in the defence of the balance of this constitution? What would be left for us to defend against an over-mighty socialist Government? Not a lot. Yes, it is about principle, but at the end we must not lose sight of the fact that as Conservatives it is our constitutional duty to maintain that balance. Remember comity, Mr Deputy Speaker, and we will not go wrong.