Safety of Rwanda (Asylum and Immigration) Bill

William Cash Excerpts

Consideration of Lords message
Monday 15th April 2024 Commons Chamber

[Stephen Kinnock]

There is a clear choice between the common sense, hard graft and positive international co-operation set out in Labour’s plan to deal with this issue, and the headline-chasing gimmicks and empty gestures that are symbolised by the Rwanda policy. Politics is about choices; the Government have taken their choice and we have taken ours.

In that spirit, Lords amendment 1B is a Labour Front-Bench amendment that places a responsibility on the Government to have due regard for its current obligations under domestic and international law. Lords amendments 3B and 3C, in the name of the noble Lord Hope, together state that Rwanda may be considered a safe country only if and when the measures set out in the Rwanda treaty have been fully implemented and the monitoring committee has established that that is the case. The Government claim that the measures in the treaty address concerns in the Supreme Court’s recent unanimous ruling, so there is absolutely no reason for Ministers to refuse to accept Lord Hope’s amendments.

Finally, Lords amendment 6B, in the name of the noble Baroness Chakrabarti, allows Ministers, officials and courts to consider whether Rwanda is safe on a case-by-case basis. Given that the Government have accepted that some appeals will be allowed, we see no reason for them to reject this amendment.

I hope that colleagues from across the House will join Labour in voting for all the amendments. Of course, the amendment are no more than an exercise in damage limitation; the fundamental problem is that this hare-brained Rwanda policy is breaking all records for being the most unworkable and worst value for money policy in the history of the Home Office. But there is an alternative. In addition to our policy to go after the criminal smuggler gangs, we will deliver our backlog clearance plan to get asylum seekers out of expensive asylum hotels by surging decision makers and caseworkers to the Home Office, and by creating a new returns and enforcement unit with 1,000 dedicated staff focused on the faster removal of those with no right to be here, including failed asylum seekers and foreign criminals.

The Government are failing on all fronts. Despite their misleading boasts about progress, the Minister for Legal Migration and the Border, the hon. Member for Corby (Tom Pursglove), admitted today that there are still almost 300 asylum hotels in operation. They are returning 44% fewer failed asylum seekers compared with 2010, when the last Labour Government left office, and 27% fewer foreign criminals. The number of small boat crossings has gone up again year on year—January to March figures—and the Government have no plan for the 99% who cannot be sent to Rwanda. We need Labour’s plans to smash the criminal smuggler gangs, save lives in the channel and strengthen our border security. We need Labour’s plans for faster processing, the end of hotel use and the removal of people who have no right to stay in the UK, and we need a Labour Government to deliver a firm, fair and well-managed asylum system that works for Britain.

[Sir William Cash (Stone) (Con)]

I do not really feel that there is anything terribly useful I can say at this stage—I have heard all this before. The hon. Member for Aberavon (Stephen Kinnock), who speaks for the Opposition, is simply repeating what he has said before. Not only that; it is perfectly apparent that these amendments are just wrecking amendments, and the hon. Gentleman has not even addressed the arguments about international law. He knows perfectly well—because he cannot answer my questions on this issue—that we have a dualist system, and if we decide to legislate in our own Parliament, the courts themselves will implement that legislation.

The real point is this: let us get this Bill done, and let us get the House of Lords to calm down a bit. At the same time, let us wait for what is inevitably going to be another claim and then see the judgment of the Supreme Court on the wording of this Bill, provided that it is clear and unambiguous. That is all I need to say. I may come back again, however, if the Lords insist again on these ridiculous amendments.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I call the SNP spokesman.

--- Later in debate ---

[Alison Thewliss]

My hon. Friend is absolutely right. The hypocrisy goes even further than that: this Government expect Rwanda to uphold all of its agreements and laws internationally and domestically, while specifically setting out to breach their own laws and obligations through this legislation. It is absolutely ludicrous.

Lords amendments 3B and 3C state that Rwanda

“will be a safe country when the arrangements provided for in the Rwanda Treaty have been fully implemented and for so long as they continue to be so.”

That question of how long those arrangements continue to be implemented is just as critical as whether Rwanda implements the measures we have just discussed, because through this legislation, the Government are stating that Rwanda is safe forever—in perpetuity. Nobody can say that of any country in the world at any point, so it is really quite bizarre to legislate specifically that Rwanda, uniquely, is safe forever and ever.

It is quite reasonable of the Lords to say,

“The Rwanda Treaty will cease to be treated as fully implemented if Parliament decides, on the advice of the Monitoring Committee, that the provisions of the treaty are no longer being adhered to in practice.”

There should be a check on that. The Government should not fear that; if they truly and deeply believe that the agreement will be adhered to, there is surely no harm in scrutinising it. The House of Lords International Agreements Committee has said that the treaty is

“unlikely to result in fundamental change in the short term”,

and the UK Supreme Court pointed out in paragraph 87 of its judgment that Rwanda refouled at least six people while the treaty was under negotiation. If that does not raise alarm bells with the Government about Rwanda’s ability to adhere to the treaty, I do not think anything will.

Lords amendment 6B deals with domestic law. It is not about international courts, foreign courts and foreign judges—as if that were a bad thing, and as if we do not send people to sit on those courts ourselves—but the integrity of our own courts and tribunals, of the UK-based judges and decision makers who the Home Office employs to do their job and who this legislation undermines. The amendment says that

“Section 2 does not prevent…the Secretary of State or an immigration officer from deciding…whether the Republic of Rwanda is a safe country for the person in question or for a group of persons to which that person belongs”.

That is quite reasonable: we should look at the evidence before coming to decisions. The amendment asks that the courts and tribunals be able to do their job, not to ignore the evidence or, as others have described, to engage in a legal fantasy where they cannot look at the evidence—cannot see it, cannot hear it, and cannot speak out about what they know to be true—because that is quite unreasonable.

[Sir William Cash]

Will the hon. Lady give way?

[Alison Thewliss]

If the hon. Gentleman thinks that our own domestic judges should not be allowed to make decisions on these issues, I would be very interested to hear his point.

[Sir William Cash]

I was going to point out that section 57 of the Immigration Act 2023, to which the hon. Lady refers, makes the perfectly reasonable point that the courts must take account of the facts. That is the key question, and I did not hear her say that; it is something that is indisputable and, in my opinion, unassailable. If there were a question of fact regarding age or any other matter that falls within the framework of this amendment, the courts should surely be entitled to deal with those facts, but not to deal with the questions to which the hon. Lady has just referred.

[Alison Thewliss]

This legislation inhibits the ability to look at facts, and I think that is quite a dangerous road to go down. I do not think that that is really what the Government ought to be doing in any circumstance. No matter how much they may wish their will upon the courts, they should not be doing this in legislation. It is completely wrong.

--- Later in debate ---

[Sir Robert Buckland]

I will try to beat the extraordinary record of my hon. Friend the Member for Stone (Sir William Cash), who spoke for a princely two minutes. I am grateful to him for setting that new record—his personal best, I think. I will deal with the amendments in turn, but first return to the theme of clause 1, which I have previously warmed to, and which I think is an abomination. It is exactly the worst sort of legislative drafting, and we should be discouraging it. At best, it is declaratory legislation, which is never helpful, and at worst it sets up all sorts of potential legal arguments. The attempt by the Lords to amend it probably makes the situation even worse, which is why I will not support Lords amendment 1.

[Sir William Cash]

I returned to the Chamber especially to hear my right hon. and learned Friend, and I was delighted to hear what he just said. At last, he has seen the light.

[Sir Robert Buckland]

I have always walked in sunlight; it is others who have perhaps walked through a veil of shadows. We will draw a veil over that. In the spirit of my hon. Friend’s helpful intervention, I have mentioned to him that I thought that clause 5 was unnecessary. It is even more unnecessary now, because the reforms that I referred to in a previous speech on the Bill about rule 39 have now been clarified by practice direction. The threshold that the European Court will apply will be, again, a much higher one. I therefore think that the occasions where we could see it invoked in the Rwanda case would be vanishingly small—in fact, non-existent. It seems to me that any harm that might be judged to have been caused is clearly revocable in the form of a return of those individuals from Rwanda. That, frankly, should have been the position the last time round; the reforms of the European Court make that even clearer.

That makes a powerful general point, which supports the excellent arguments made by my hon. Friend the Member for Ruislip, Northwood and Pinner (David Simmonds) about the direction of travel of the Court. I strongly agree with him about the recent climate change decision, which was a wrong turn. We should be very much going back to fundamental human rights, and not talking about socioeconomic rights or trying to make everything into some form of right. Surely it is better to legislate for statutory duties and obligations by public bodies, rather than creating nebulous rights that then become the province of the courts. Herein lies the difficulty that we still encounter in the second batch of amendments—Lords amendments 3B and 3C—which I am still minded to support.

Whether we like it or not, the Supreme Court assessed evidence and substituted its own view for that of the decision makers. The noble Lord Howard of Lympne made a powerful speech in the other place about the wisdom or otherwise of going down that road. I agree with a lot of what the noble Lord said. I do not like it when I see courts of higher record in effect relitigating matters of evidence, which is what the Supreme Court did, but that is the situation that we have. That is why the Bill has come forward, and my abiding concern about deeming provisions, which I accept are not unprecedented, is that they should match reality.

That is why I press my right hon. and learned Friend the Minister to answer some of the points made in the other place about the progress being made by the Government of Rwanda, not only in legislating for its treaty obligations—it has a monist system, so the treaty is already in force—but in carrying out the obligations it agreed to in the treaty, namely the reform of its appeal system and the use of trained advisers. Those are all measures that would go a huge way to reassuring not just me but any court that might be seized of this matter in the near future that all is proceeding well. The Scottish Lord Advocate seemed to concede in the other place that there needed to be full treaty implementation before the treaty was ratified. If that is the case, we are arguing over little. That is why I still commend those amendments.

I will now deal with the next questions, which relate to the arguments again trenchantly put by my hon. Friend the Member for Ruislip, Northwood and Pinner. I agree with him about the danger of proxy judicial reviews based on the Children Act 1989 and care legislation. We need to take great care about that. Like him, I am not persuaded that there is merit in supporting the Lords amendments on that issue.

I am also encouraged—though still concerned—about the modern-day slavery position. I am encouraged that here alone in the Government’s response to the Lords amendments, they have come up with an amendment in lieu: amendment (a) to Lords amendment 9. I am prepared to support that, bearing in mind the sensitive and important nature of this legislation and the need to avoid us riding a coach and horses through the progress we have made, in terms of this country’s leadership on modern-day slavery. I am prepared to give the Minister the benefit of the doubt and support the amendment in lieu.

My abiding concern remains for a class of people who served our country, who endured great danger in Afghanistan, who still find themselves in danger in a third country—namely Pakistan—and who may well fall foul of an entirely unintended consequence as a result of this legislation, however well intentioned it may be. That is why I am still not persuaded on Lords amendment 10B. The Government have moved on that—we are in an iterative process with the Lords messages—and I agree with the right hon. Member for Kingston upon Hull North (Dame Diana Johnson), who reminded us of the invaluable role that the deliberative Chamber has in making sure that legislation is tested and up to the level of events.

We should not ignore what was said in the Lords about the evidential situation in Rwanda. That is the reality, and that is why when we pass legislation here, we should do everything we can to avoid legislative fiction. It is not good law. It creates a glass jaw, which can be broken by litigation and by judicial challenge, and we find the courts once again back in a position where I do not think any of us, least of all Conservative constitutionalists, want to see them. Let us legislate with care on this matter, and let us get it right.