Safety of Rwanda (Asylum and Immigration) Bill

Viscount Hailsham Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

For example, if we end up with an amendment, yet to be agreed, whereby the Secretary of State is to lay some kind of advice before Parliament that Rwanda is now safe because the treaty is now fully implemented, it would not be appropriate for that Act or legislative initiative—whatever you want to call it—to be second-guessed in the courts. The proper place for the courts is after government has initiated and Parliament has decided. That is the moment when the courts should review the factual situation as well as legality. That is what my Amendment 36 is there to demonstrate. It is probably unnecessary. It is there really to demonstrate that the courts in this country are very restrained and respectful of parliamentary sovereignty; it is the Government who do not respect parliamentary sovereignty, as opposed to executive diktat. The Government do not respect the courts.

[Viscount Hailsham (Con)]

My Lords, I rise to speak briefly to the generality of Clause 3. I signed the notice opposing Clause 3 standing part—not on this occasion, although that may be something to do at a later stage. We need to be cautious about advancing the proposition contained in Clause 3, because it disapplies the provisions of the Human Rights Act in the various respects specified in Clause 3(2). As the noble Lord, Lord Scriven, has rightly reminded your Lordships, this is domestic legislation. It is not legislation imposed on us but legislation that Parliament chose to enact. It is also the cornerstone of the proposition that human rights in this country should be universal in their application.

I regard what we are doing in disapplying serious sections of the human rights legislation in respect of specified groups in the community as deeply dangerous. It is a precedent which we should not formulate. At Second Reading, I took the liberty of reminding your Lordships of what Pastor Niemöller said about not crying out in opposition when bad things were being done. We are being asked to stand on a very slippery slope, and very slippery slopes lead very often to very dirty waters. We should not embark on this exercise.

That is not just my view but the view of, for example, the Constitution Committee. I commend to your Lordships paragraphs 27 to 31 of the report that was published on 9 February. I also commend to your Lordships the views of the Joint Committee on Human Rights, which were published on 12 February. Paragraph 95 and conclusion 7 are extremely critical of the Bill.

I turn directly to my noble friends on the Front Bench. I do not blame them personally for what is happening. My noble friend Lord Deben and I were Ministers for many years at all levels. I know perfectly well that my noble friends will communicate our views to their departments, but I also know that they do not determine policy and it is not their fault. However, the overriding conclusion that I have come to from this whole debate is that this Government intend to railroad this Bill through without challenge.

It is on that point that I would like my noble friends to communicate another message to the Government. People such as me are Conservatives. We will always be Conservatives. Yet we are deeply troubled, deeply distressed, by how this Government are operating. It is manifest in many ways in this Bill. We are disregarding the rule of law. We are ignoring the principles of the separation of power. We are disapplying protection given to minorities. We are becoming immoderate in our tone. We have abandoned pragmatism in the conduct of policy. I know why they are doing that. They suppose that they can win the election by dog-whistle policy, but they cannot. The outcome of the election is probably already determined by circumstance and by Mr Johnson and by Liz Truss and various other things that have already happened and which the public are probably not going to forgive the Government for. You cannot solve that problem by dog-whistle policies, but you can deepen the rift between the electorate and us.

I am a great admirer of Matthew Parris, one of my oldest friends. His articles, which he writes regularly, tell one what moderate conservatism should be about. At this stage in government, we need to show that we can reinstate the traditional values of conservatism. That will not save us at the general election, but it will make recovery a lot easier.

[Baroness Lister of Burtersett (Lab)]

My Lords, it is a privilege to follow the noble Viscount—probably inadequately. I added my name to the clause stand-part notice because, as I made clear at Second Reading, I am dismayed by Clause 3’s disapplication of parts of the Human Rights Act. I support everything that has already been said by various noble Lords.

The main concern raised by bodies such as the Equality and Human Rights Commission, the Northern Ireland Human Rights Commission, the Law Society and the JCHR, on a majority, together with more than 250 civil society organisations, is that, in the words of the EHRC, this

“undermines the fundamental principle of the universality of human rights”

and

“damages the UK’s human rights legal framework”.

One of the main voices, a group of asylum seekers and refugees, some of whom are from Rwanda, have said how painful they have found the idea of a two-tier human rights system and the loss of what they rightly see as a legal right to seek protection.

Not only is this becoming a habit on the part of the Government, as my noble friend Lady Chakrabarti has pointed out, but the JCHR report, on a majority, cites as particularly alarming the disapplication, for the first time ever, of Section 6 of the HRA. It warns that this

“would effectively grant public authorities statutory permission to act in a manner that is incompatible with human rights standards”.

As such,

“it is very hard to see how it could be consistent with a commitment to complying with international law”.

As has already been pointed out, the Constitution Committee comments that disapplication—

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

My Lords, I will introduce my Amendments 81 and 82 in this group, which I have the privilege of sharing with the noble Viscount, Lord Hailsham. I remind the Committee that the Government concede that this policy is novel and might even concede that it is controversial. There are grave concerns about whether Rwanda is currently safe and further concerns, raised eloquently earlier today, that even if it becomes safe at some point—for example, as a result of the successful implementation of the treaty—it may not be safe for ever.

Throughout these debates, the Government have relied heavily on the principle of parliamentary sovereignty—not executive sovereignty. That is why Amendment 81, which I share with the noble Viscount, Lord Hailsham, and which is supported by the noble Baroness, Lady Bennett of Manor Castle, makes commencement a matter for the Secretary of State but to be approved by the Joint Committee on Human Rights and both Houses of Parliament by way of resolution. It is hence not executive fiat. Currently, Clause 9(1) says:

“This Act comes into force on the day on which the Rwanda Treaty enters into force”.


Treaty ratification is for the most part a matter for the Executive, but if we are to be the high court of Parliament and oust the jurisdiction of the ordinary courts of the land, parliamentary sovereignty at the very least requires parliamentary commencement. I leave to the noble Viscount, Lord Hailsham, Amendment 82 on his system of rolling sunsets.

[Viscount Hailsham (Con)]

I am most grateful to the noble Baroness and entirely agree with what she has said on Amendment 81. My amendment is an additional concept. The concern has become apparent in Committee that, if Rwanda can become safe, it may also cease to be safe. It is important that we should have in place a mechanism for determining if it becomes unsafe, so that the provisions in the Bill cease to operate. That is what my Amendment 82 seeks to do.

I have called it rolling sunsets, but this is what I have in mind: the amendment from the noble Baroness triggers the implementation of the Bill for a period of two years, in the circumstances that she set out, and at the expiration of that period, if the Government want another two years or any other period, they must get an affirmative resolution of both Houses. Before they can get that, the procedure outlined by the noble Baroness must be complied with, including a report from the Joint Committee as to safety. If they want to roll it on for a third period of two years and so on, each time Parliament would be given the opportunity of receiving a report and triggering the extension of the Bill. In that way, rolling assessments of safety could be provided.

[Lord Falconer of Thoroton (Lab)]

My Lords, I strongly support my noble friend Lady Chakrabarti’s amendment, as amended by that of the noble Viscount, Lord Hailsham. It is incredibly important that the Act comes into force only when there is satisfaction that Rwanda has become a safe country and a rolling assessment can be made. I say that subject to the noble and learned Lord, Lord Stewart of Dirleton, indicating to us earlier—we were very excited by this—that he would tell us whether Parliament could in some way reopen whether its judgment on whether it was a safe country had changed. He told us that the noble Lord, Lord Sharpe of Epsom, would tell us how this would work on a later amendment. I anticipate that he will tell us on this very amendment how Parliament can in some way be activated to get rid of it. I am very excited to hear that, because at the moment I cannot see how it could without the amendments of my noble friend and the noble Viscount, Lord Hailsham.

I will raise two points about where we are at the moment. The first is about when the future Act will come into force. Clause 9 says:

“This Act comes into force on the day on which the Rwanda Treaty enters into force”.


One would envisage that the treaty will not enter into force until the Government are satisfied that Rwanda is safe. That is a minimum requirement for a Minister. I assumed that that was the position, but I then had the misfortune to look at the agreement that the country has entered into with Rwanda. It says:

“This Agreement shall enter into force on the date of receipt of the last notification by the Parties”—


Rwanda and the United Kingdom—

“that their internal procedures for entry into force have been completed”.

I understand that to mean that, when the process has been gone through constitutionally in Rwanda and the UK—to ratify, as it were—each country notifies the other that that is the position, and the agreement immediately comes into force.