Safety of Rwanda (Asylum and Immigration) Bill

Robert Neill Excerpts

2nd reading
Tuesday 12th December 2023 Commons Chamber

[James Cleverly]

My right hon. Friend, who is an expert proceduralist in this House, will know that advice from the AG to Government is privileged, and I am not going to share it at the Dispatch Box, but he will also know that the Government’s position is clear and unambiguous that this is in accordance with international law. He can rest assured of that.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

Will my right hon. Friend confirm that, as a matter of law, an interim measure under rule 35 is directed not to the courts of the UK, but to the Governments of the member states? Therefore, what the Bill says simply restates what is the position anyway: it is the member state that it applies to, not the courts.

[James Cleverly]

My hon. Friend is absolutely right.

--- Later in debate ---

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

After a good deal of hesitation, I shall support the Bill tonight. My hesitation is real because, for me, the Bill goes as close to the wind constitutionally as one can go. I listened with great care to the eloquent speech of my right hon. and learned Friend the Member for Torridge and West Devon (Sir Geoffrey Cox). I agree entirely with his very careful analysis of the Bill.

The Bill takes a novel and unusual approach. We are dealing with an unusual and pressing situation, and therefore straining the sinews of what is acceptable can just be justified. Equally, the idea that legislation is the sole or even the principal solution to this situation is, I think, wrong. Ultimately, an operational solution is required. It is surprising that some previous occupants of the Home Office did not think about that rather more, although others did and it is a pity that their ideas were not acted upon. Ultimately, it will be operational measures that make the real difference. If this Bill can make a difference, and provided that the safeguards that my right hon. and learned Friend mentioned remain, I can, with hesitation, live with it.

I am indebted to the analysis provided by the Society of Conservative Lawyers, and I declare my interest as chair of its executive committee. The paper was written by Lord Sandhurst KC and Harry Gillow, who are both experienced in international law. If we want opinions on such things, it is best to go to people with experience in the field of international law, rather than in other fields. They conclude, as I do, that although there are areas that need to be examined with care, the Bill falls on the right side of the line. Deeming provisions are not unprecedented, as has been set out.

I share the concern set out by my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) about how deeming provisions interact with international law obligations, and I hope the Minister will take that on board and explore it. We can deem in domestic law, but we cannot legislate to oust our international law obligations.

The useful analysis of the Society of Conservative Lawyers pamphlet states that in reality, if the UK were to breach international law conventions, not only would that be constitutionally wrong; it would collapse the scheme, because Rwanda has made it clear that it would not be party to such a scheme. I do not buy for one second the rather patronising attitude that says the Rwandans have been put up to saying that. I think they are utterly genuine in their belief.

It is important to remember that other countries that are subject to the European convention on human rights are reported to be exploring potential arrangements with Rwanda. If Rwanda were to be party to a scheme in which the United Kingdom is breaking international law, Rwanda would inevitably forfeit any opportunity to engage with other ECHR countries, so it would certainly withdraw. People have to be careful what they wish for. If they go too far, they will drive the Rwandans out of the scheme and the whole policy would collapse.

It is critical that individual rights of challenge are preserved, as my right hon. and learned Friend the Member for Torridge and West Devon said. I am a Conservative because I am a constitutionalist, and I am a constitutionalist because I believe in checks and balances. Frankly, the day the Conservative party thinks that the ends justify the means and ignores the principle of comity, and the day it thinks that any single policy objective overrides the importance of our constitutional checks and balances, is the day it ceases to be the Conservative party as most people would recognise it. Maintaining that balance is essential, and Ministers have, with great endeavour, just managed to do that, but that does not mean that I do not dislike much of the Bill’s wording.

I say that looking at parts of clause 1, in particular subsection (4), which states:

“It is recognised that…the Parliament of the United Kingdom is sovereign, and…the validity of an Act is unaffected by international law.”

That is a GCSE law statement of the blindingly obvious, if I might respectfully say so; it might best be described as “otiose and nugatory” as it adds nothing to the Bill. It is performative—[Interruption.] Well, it can be whichever way round one likes. Pointless might be another way of putting it. I wonder what it adds.

Clause 5(2) is another such passage. It relates to the approach to interim measures under the Strasbourg Court’s rule 35 and states that this is for Ministers “to decide”. Again, that states exactly what the position in law is in any case. We have only to look at the textbook to say, as I did in my intervention, that it is for the Government to decide on rule 35 issues, because they are directed to the Government, not to the courts. It is a bit patronising to tell the courts what is well within their competence to know and decide upon.

With those reservations, I will support the Bill tonight, but I just say that if it were to change and any of the safeguards that have been left in were to be removed, my support would go. Some people would then have pushed the Bill over the line into the unacceptable and, in my judgment, the un-Conservative, and I would not support it. I do not believe that that is the Government’s intention and so I will help them to get the Bill through tonight, but they must be wary of some who do not have the best of objectives for the Government’s policy and might take it in the wrong direction—let’s not get there.