Safety of Rwanda (Asylum and Immigration) Bill

William Cash Excerpts

2nd reading
Tuesday 12th December 2023 Commons Chamber

[James Cleverly]

I will make further progress. As I say, the principle of relocating people to a safe country to have their asylum claims processed is entirely consistent with the terms of the refugee convention. The High Court and the Court of Appeal unanimously confirmed that, and the Supreme Court did not dispute those findings in own findings three weeks ago.

[Sir William Cash (Stone) (Con)]

Does my right hon. Friend agree that it is clear in international law and in relation to the question of the rule of law that in this country, with our unwritten constitution, a clear and unambiguous use of words, clearly establishing the intention of Parliament in the enactment of a law, takes precedence over international law, in accordance with the judgments of Lord Hoffmann, as well as judgments and statements by Lord Judge, Lord Denning and other very distinguished jurists, including in paragraph 144 of the judgment made last month?

[James Cleverly]

My hon. Friend makes an important point. He is right that when the wording of a Bill is clear and unambiguous—where there is a deeming clause—that is the express will of Parliament, that Parliament is sovereign, and that that thinking must be adhered to through the legal process.

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[Sir William Cash (Stone) (Con)]

The recent Rwanda case is the most recent case on matters relating to parliamentary intentions, the supremacy of law and the rule of law, and the proper application of the rule of law. One claimant—and it requires only one claimant—had his claim dismissed by the Supreme Court on the grounds that parliamentary sovereignty had already undermined his case. The case was about retained EU law, but it actually undermined the case of that claimant. That was a clear indication that the Court was going to take the sovereignty of Parliament first, and that is the key issue in this debate.

It has been said by the courts that sovereignty trumps international law. It is absolutely clear that that is the case. Only this year, the House of Lords Constitution Committee, in paragraph 58 of its report on the rule of law, stated:

“Parliamentary sovereignty means that Parliament can legislate contrary to the UK’s obligations under international law.”

That was a reinforcement of the judgments I mentioned in an intervention, including those of Lord Hoffmann, Lord Bingham and Lord Denning. Our greatest jurists have all come to exactly the same conclusion. The President of the current Supreme Court, which dealt with the Rwanda case, said the same thing in paragraph 144 of its judgment in that case:

“the principle of legality does not permit a court to disregard an unambiguous expression of Parliament’s intention such as that with which we are concerned”.

So, the position is completely clear and those cases—

[Joanna Cherry]

rose—

[Sir William Cash]

Before the hon. and learned Lady seeks to intervene, I want to get this quite clear. The Miller case was on a different set of circumstances. Not only that, but it has been overtaken by subsequent constitutional judgments by the Supreme Court itself. I want to quote now from Lord—

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

I will give way. The hon. and learned Lady can say what she likes.

[Joanna Cherry]

It is refreshing to know that my article 10 rights have not been withdrawn yet. The point is this. The hon. Gentleman may be right, as a matter of domestic law of England that the sovereignty of the English Parliament allows England to change its domestic law internally. [Interruption.] He may be right; it is in dispute as we know. What he is definitely not right about is that this Parliament cannot domestically legislate to take us out of our international legal obligations without doing so clearly. The Supreme Court has been crystal clear about that. There are two separate matters here: domestic law and international law. If the Government want to breach their international legal obligations, am I not right, based on Supreme Court authority, that they will actually have to withdraw from the treaties to which they are committed?

[Sir William Cash]

Absolutely. I am glad that the hon. and learned Lady mentioned the fact that an unambiguous statement—an explicit statement, as Lord Sumption puts it—on the position in interpreting the intentions of Parliament carries enormous weight and, in fact, overrides international law obligations.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

No. I am going to read out—

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

No, I will not give way.

I am going to quote directly from Lord Hoffman himself in relation to an ECHR case. [Interruption.] This is the case of R. v. Lyons 2003. He states:

“the Convention is an international treaty and the ECtHR is an international court with jurisdiction under international law to interpret and apply it. But the question…is a matter of English law. And it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them…Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law…in a way which does not place the United Kingdom in breach of an international obligation”—

but, and this is absolutely crucial—

“The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not.”

That is what the law is. That is a straightforward interpretation and statement.

There is an issue that I want to come to. I praise my right hon. Friend the Member for Newark (Robert Jenrick) for his courage and for a brilliant speech, and endorse every word he said, but I would also like to say this: we want the Government to succeed in their legislation, but it has to be legislation that works. As I have explained, in relation to the Supreme Court, the whole question turns on the intention of Parliament and the sovereignty of Parliament. It is a question of justiciability as well. I put to my hon. and learned Friend the Minister for Illegal Migration that, when it comes to it, we can make changes to the Bill. It is possible to extend the scope of the Bill, and I hope he will have discussions with the Clerk of Public Bills, with whom I have had discussions already.

It is absolutely clear that the scope of the Bill will determine the amendments, whether from the Government or Back Benchers. It matters that we are entitled to have a proper debate on this fundamental question about international law and its relationship to sovereignty. The Bill, if enacted after Royal Assent, could be scuppered by one claimant and by the courts if the words of the Act are not clearly expressed and explicit in ruling out any such claim, for example under clause 4 or any other heading, such as rule 39 and all the other things we will no doubt trot out in Committee if we get there. We therefore have to address the question of the scope of the Bill, because that is the way that Parliament functions. That is the way Mr Speaker must decide on the selection of amendments, so it is crucial.

There is much more that I could say, but I let me end by drawing attention to the global issue. The fact is that throughout the European Union there is a real problem. They are tearing their hair out, because on the one hand they have the charter of fundamental rights, and on the other they are bound by qualified majority voting to comply with the situation, which is actually not the same for us. We have a unique opportunity, in our parliamentary system and with the sovereignty of Parliament, to be able to make amendments and provide domestic law that will satisfy the voters of this country.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call the Chair of the Home Affairs Committee.

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[Sir Geoffrey Cox]

I cannot give way; I do not have time.

Let me move to the third and most important question, which relates to the exclusion of access to courts. This Bill carefully preserves the right of individuals to come to court in extreme cases of individual justice. I listened, impressed, to my right hon. Friend the Member for Newark (Robert Jenrick), and I submit to those who think the Bill goes far enough that we cannot sacrifice the principle of access to a court. If we eliminated it entirely, not only would the Bill collapse because it would be interminably impeded in the House of Lords, but it would probably lead to the Rwandan Government withdrawing; and it is conceivable that the courts could entertain, for the first time, a complex challenge about the right of this Parliament to do away with fundamental constitutional principles such as access to a court. The supremacy of this House does not necessarily mean that it does not operate within a complex system of constitutional institutions, each of which has its own place as a component part in that system.

[Sir William Cash]

Will my right hon. and learned Friend give way?

[Sir Geoffrey Cox]

No, I cannot give way; I simply do not have time.

Constitutional principles compete in creative tension. Parliamentary sovereignty is the most important of them, but there are others that are fundamental and one of them is access to a court in extreme cases. That is what this Bill preserves. I say to my right hon. Friends that I understand their frustration and their deep, intense dissatisfaction with the current situation; I share it. I think that there is tightening that we could do, particularly on rule 39. But on the preservation of the right to go to court in an extreme case, I say that is part of the British constitution that our fathers and our party have supported, and for which they have fought, for generations, and it would be wrong of us to compromise on that—

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[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.

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[Michael Tomlinson]

It will start off in the hundreds and scale up into the thousands. I enjoyed the hon. Gentleman’s speech. Whenever he speaks, I always think he has a smile behind the grimace and the stare. I always enjoy his speeches, and I always enjoy hearing him being heckled from this side of the House.

Conservative Members are anxious about spurious claims; about people asserting that they are unwell and unfit to fly, when the contrary is the case. Those who are making the crossing in small boats are not unwell; they are fit, young men. Some 84% of those making the crossings are male, and 77% of those are aged between 18 and 39. I agree with my right hon. and hon. Friends when they say they want to make this work and make it legally tight. That is absolutely right, and I want to join them in that endeavour.

[Sir William Cash]

Will the Minister give way?

[Michael Tomlinson]

How could I refuse?

[Sir William Cash]

I wish to be a little formal about this. Will my hon. and learned Friend seek a ruling from Mr Speaker that the Bill’s long title and scope may be amended, to ensure that amendments may be tabled and selected, at least by the Government and even by Back Benchers, as on previous occasions?

[Michael Tomlinson]

I say directly to my hon. Friend that I will continue to work with him on this. I will come back to his specific points, and I hope I will address his very concern, perhaps in response to the right hon. Member for Clwyd West (Mr Jones).

My right hon. Friend the Member for Witham, my hon. Friends the Members for North Norfolk (Duncan Baker) and for Torbay (Kevin Foster) and others spoke powerfully and directly. My right hon. Friend the Member for Witham rightly talked about the UNHCR and the EU. How galling it was to see that, the very day after the UNHCR advocated in the Supreme Court that Rwanda is not safe, the UNHCR itself sent 168 refugees to Rwanda as part of hundreds and thousands under a scheme that is already up and running, and supported and backed by the EU to the tune of millions of euros. We need to hear more of that, so I am very grateful to my right hon. Friend.

The hon. Member for Strangford (Jim Shannon) and the right hon. Member for East Antrim (Sammy Wilson) raised a specific point that I want to address head-on. This Bill will apply in full in Northern Ireland, in the same way that it applies in the rest of the United Kingdom. It is explicit, it is on the face of the Bill and will always be the case, reflecting that immigration policy is a UK-wide matter. I want to be particularly clear that nothing in the Windsor framework or the trade and co-operation agreement affects that. Where people have raised concern is on the rights chapter of the Belfast/Good Friday agreement, which I want to be clear does not affect any clause in this Bill in any way.

I think I have time to address the specific concern that the hon. Member for Strangford raised. It is important to be clear that the 2005 procedural directive is not within the annexes of the Windsor framework.