Clause 3 - Disapplication of the Human Rights Act 1998

Safety of Rwanda (Asylum and Immigration) Bill – in the House of Commons at 12:55 pm on 17 January 2024.

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Photo of Robert Jenrick Robert Jenrick Conservative, Newark 12:55, 17 January 2024

I beg to move amendment 11, page 3, line 21, after “Act” insert

“, and of the Illegal Migration Act 2023 insofar as they relate to the removal of persons to Rwanda”.

This amendment is intended to ensure that the relevant provisions of the Human Rights Act 1998 are fully disapplied for both this Bill and for the Illegal Migration Act 2023 in relation to removals to Rwanda – including by ruling out the use of sections 4 and 10 of the HRA.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (First Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

Amendment 12, page 3, line 22, after “disapplied” insert

“, in relation to both of those Acts in relation to the removal of a person to Rwanda”.

This amendment is intended to ensure that the relevant provisions of the Human Rights Act 1998 are fully disapplied for both this Bill and for the Illegal Migration Act 2023 in relation to removals to Rwanda – including by ruling out the use of sections 4 and 10 of the HRA.

Amendment 13, page 3, line 25, after “legislation),” insert—

“(ba) sections 4 (declaration of incompatibility) and 10 (power to take remedial action),”

This amendment is intended to ensure that the relevant provisions of the Human Rights Act 1998 are fully disapplied for both this Bill and for the Illegal Migration Act 2023 in relation to removals to Rwanda – including by ruling out the use of sections 4 and 10 of the HRA.

Amendment 14, page 3, line 27, leave out from “apply” to end of line 29 and insert

“in relation into provision made by or by virtue of this Act, the Illegal Migration Act 2023 and the Immigration Acts in relation to the removal of a person to Rwanda”.

This amendment is intended to ensure that the relevant provisions of the Human Rights Act 1998 are fully disapplied for both this Bill and for the Illegal Migration Act 2023 in relation to removals to Rwanda – including by ruling out the use of sections 4 and 10 of the HRA.

Amendment 15, page 3, line 30, at end insert

“, the Illegal Migration Act 2023 or the Immigration Acts”.

This amendment is intended to ensure that the relevant provisions of the Human Rights Act 1998 are fully disapplied for both this Bill and for the Illegal Migration Act 2023 in relation to removals to Rwanda – including by ruling out the use of sections 4 and 10 of the HRA.

Amendment 16, page 3, line 30, at end insert—

“(4A) Sections 4 and 10 do not apply in relation to provision made by or by virtue of this Act, the Illegal Migration Act 2023, or the Immigration Acts.”.

This amendment is intended to ensure that the relevant provisions of the Human Rights Act 1998 are fully disapplied for both this Bill and for the Illegal Migration Act 2023 in relation to removals to Rwanda – including by ruling out the use of sections 4 and 10 of the HRA.

Amendment 17, page 3, line 32, leave out paragraphs (a) to (c) and insert

“provision made in relation to the removal or proposed removal to Rwanda by or by virtue of this Act or the Illegal Migration Act 2023.”.

This amendment is intended to ensure that the relevant provisions of the Human Rights Act 1998 are fully disapplied for both this Bill and for the Illegal Migration Act 2023 in relation to removals to Rwanda – including by ruling out the use of sections 4 and 10 of the HRA.

Amendment 18, page 4, line 6, at end insert—

“(5A) This section applies only in relation to the removal or proposed removal of a person to Rwanda under this Act or the Illegal Migration Act 2023.”.

This and other amendments to Clause 3 are intended to ensure that the relevant provisions of the Human Rights Act 1998 are fully disapplied for both this Bill and for the Illegal Migration Act 2023 in relation to removals to Rwanda – including by ruling out the use of sections 4 and 10 of the HRA. The Immigration Acts are listed in section 61(4) of the UK Borders Act 2007, as amended.

Clause 3 stand part.

Amendment 7, in clause 5, page 5, line 12, leave out subsection (2).

This amendment would omit the provision that only a Minister of the Crown can decide whether the United Kingdom will comply with interim measures of the European Court of Human Rights.

Amendment 23, page 5, line 13, leave out subsection (2) and insert—

“(2A) The interim measure is not binding on the United Kingdom, and will have no effect on any provision made by or by virtue of this Act or the Illegal Migration Act 2023, and shall not prevent or delay the removal of a person to Rwanda under this Act or the Illegal Migration Act 2023.”.

This ensures that the default position is that Rule 39 indications are not treated as binding on the United Kingdom and will not prevent removals to Rwanda, but to provide an optional discretion to Ministers.

Amendment 8, page 5, line 15, leave out subsection (3).

This amendment would remove the requirement that a court or tribunal must not have regard to the interim measure when considering any application or appeal which relates to a decision to remove the person to the Republic of Rwanda.

Amendment 51, page 5, line 15, leave out “not”.

This amendment would require court or tribunal to have regard to an interim measure of the European Court of Human Rights.

Amendment 24, page 5, line 19, leave out subsection (4) and insert—

“(4A) A Minister of the Crown, acting in person, may (but need not) determine that the duty to remove in section 2(1) of the Illegal Migration Act 2023 is not to apply in relation to a person to whom this section applies.”.

This amendment is linked to Amendment 23.

Amendment 52, page 5, line 22, leave out paragraph (b).

This amendment removes the definition in relation to Clause 5 of “Minister of the Crown” as a Minister of the Crown acting in person.

Amendment 38, page 5, line 23, after “person” insert

“in consultation with the Attorney General.”.

Explanatory note: This amendment ensures a Minister of the Crown making a decision on compliance with an interim injunction consults with the Attorney General.

Amendment 9, page 5, line 23, at end insert—

“(5) The Government must, within three months of this Act receiving Royal Assent, lay before Parliament a copy of a report setting out how this clause is compatible with Section 7A of the European Withdrawal Act and the UK’s obligations to citizens under the Good Friday Agreement.

(6) Within three sitting days of a report being laid under subsection (5) the Government must move in each House an amendable motion that that House has considered and approved the report which has been laid.

(7) Subsections (2) and (3) do not come into force until such as time as both Houses have passed motions under subsection (6) approving reports laid under subsection (5).”.

Amendment 25, page 5, line 23, at the end insert—

“(5) Section 55 of the Illegal Migration Act 2023 is amended as follows.

(6) In subsection (6) —

(a) omit “Where a Minister of the Crown does not make a determination under subsection (2)”, and

(b) after “applies” insert “in relation to the removal or proposed removal of a person to Rwanda”.

(7) For subsection (9) substitute —

“(9A) Where a Minister of the Crown has not made a determination under subsection (2) in relation to the removal or proposed removal of a person to Rwanda, section 4(2) of the Safety of Rwanda (Asylum and Immigration) Act 2024 applies.”

(8) After subsection (10) insert—

“(11) Section 8(18) applies to any decisions made in connection with this section or section 5 of the Safety of Rwanda (Asylum and Immigration) Act 2024.””.

This amendment ensures that the default position is that Rule 39 indications are not treated as binding on the United Kingdom and will not prevent removals to Rwanda, but to provide an optional discretion to Ministers.

Clauses 5 and 6 stand part.

Amendment 58, in clause 7, page 6, leave out line 18 and insert—

““safe country”—

(a) means a country to which persons may be removed from the United Kingdom in compliance with all of the United Kingdom’s obligations under international law, and

(b) includes, in particular, a country—

(i) from which a person removed to that country will not be removed or sent to another country in contravention of any international law, and

(ii) in which any person who is seeking asylum or who has had an asylum determination will both have their claim determined and be treated in accordance with that country’s obligation under international law.”.

This amendment is consequential on the removal of Clause 1 and restores to the Bill a different clarification of the meaning of “safe country” for the purposes of the Bill.

Clause 7 stand part.

Amendment 4, in clause 8, page 6, line 23, leave out “Scotland”.

The intention of this amendment is to prevent the Bill affecting the law in Scotland.

Amendment 5, page 6, line 25, after “within” insert “the rest of”.

The intention of this amendment is to ensure that any amendment made by any Act resulting from this Bill would affect only the rest of the UK, and not Scotland (see Amendment 4).

Amendment 32, page 6, line 25, leave out “the United Kingdom” and insert

England and Wales and Northern Ireland.”.

This amendment is linked to Amendment 4 and is intended to remove the application of this Bill to Scotland.

Clause 8 stand part.

Amendment 53, in clause 9, page 6, line 38, leave out from “Act” to end of line 39 and insert

“shall only come into force only when each House of Parliament has come to Resolution on the following motion tabled by a Minister of the Crown: That the Agreement, done at Kigali on 5 December 2023, between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda for the Provision of an Asylum Partnership Agreement to Strengthen Shared International Commitments on the Protection of Refugees and Migrants (CP 994), a copy of which was laid before Parliament on 6 December 2023, should not be ratified.”.

This amendment aims to remove the treaty section from the bill and ensure there’s a separate debate on the matter.

Amendment 59, page 6, line 38, leave out from “force” to end of line 39 and insert

“on the day after the Secretary of State has laid before Parliament a statement that the Monitoring Committee under Article 15 of the Rwanda Treaty has been fully established (and see section (suspension of Act if Monitoring Committee not in operation))”.

This amendment makes commencement of the Act contingent on the establishment of the Monitoring Committee under Article 15 of the Rwanda Treaty.

Amendment 33, page 6, line 39, after “force” insert

“in England and Wales and in Northern Ireland”.

This is a paving amendment for Amendment 34.

Amendment 36, page 6, line 39, after “force” insert

“, or the day on which a full economic impact assessment for the bill is published including any financial memorandum signed between Rwanda and the UK relating to the Rwanda Treaty, whichever is later”.

This amendment requires the publication of a full impact assessment on the costs involved in removals to Rwanda under the bill, including per-person removal costs and the confidential financial memorandum signed between the two countries, in advance of the Bill entering into force.

Amendment 34, page 6, line 39, at end insert—

“(1A) This Act comes into force in Scotland on the day after the Scottish parliament grants its legislative consent to this Act.”.

This amendment would prevent the Bill coming into effect in Scotland until after it had been agreed to by the Scottish Parliament.

Clauses 9 and 10 stand part.

New clause 2—Monitoring and enforcement of conditions (No. 2)—

“(1) If the conditions of subsection (2) are met, then no provision of this Act shall have effect until such as time as each House of Parliament has passed a motion agreeing that the Act remain in effect.

(2) The conditions of this subsection are that the Monitoring Committee has—

(a) published a report noting that any provision of the UK-Rwanda treaty is not being adhered to by either party,

(b) published a report noting that the conditions under which asylum seekers are being held in Rwanda are materially different to those in place at the point where the UK-Rwanda treaty was signed, or

(c) published a report in the last six months confirming that neither (2)(a) or (2)(b) have in their view been necessary.

(3) For the purposes of this section, the Monitoring Committee refers to the Committee established by Article 15 of the UK-Rwanda treaty: provision of an asylum partnership.”.

New clause 3—Effect in Northern Ireland—

“The provisions of this Act shall have effect in Northern Ireland, notwithstanding Section 7A of the European Union (Withdrawal) Act 2018.”

New clause 4—Court of Session

“Notwithstanding anything in this Act the supervisory jurisdiction and the nobile officium of the Court of Session are preserved.”

New clause 5—Monitoring Committee—

“(1) A Monitoring Committee overseeing removals to Rwanda must be established and maintained in accordance with Article 15 of the Rwanda Treaty.

(2) The Monitoring Committee must report to Parliament every 90 days from when it is first established to confirm that the obligations set out in the Rwanda Treaty are being complied with.

(3) If a report made under subsection (2) either (a) is not received within a 90-day period or (b) does not confirm that the relevant obligations are being complied with, the provisions of this Act relating to the removal of persons to Rwanda do not apply.

(4) Reports made under subsection (2) may be taken into consideration in proceedings of any court or tribunal.”

This new clause places the Monitoring Committee for the Rwanda Treaty on a statutory basis, requires regular reporting to Parliament, and ensures that their findings can be reviewed and can affect the operation of measures in the Act resulting from this Bill.

New clause 7—Reporting requirements—

“(1) Within 60 days of this Act receiving Royal Assent, and at every 90 days subsequently, the Secretary of State must provide a written report to Parliament setting out—

(a) the number of individuals relocated under the Rwanda Treaty,

(b) the current location and immigration status of any individuals relocated under the Rwanda Treaty, and

(c) the quarterly and total costs incurred to transfer individuals to Rwanda under the Rwanda Treaty, including processing costs.

(2) The Secretary of State must also notify Parliament within 10 days of any direct payments being made to the Republic of Rwanda under the terms of the Rwanda Treaty.”

This new clause requires the Secretary to report regularly to Parliament on the operation of the Rwanda Treaty, and to promptly notify Parliament of any payments made by the UK Government to the Republic of Rwanda under the terms of the Rwanda Treaty.

New clause 8—Return of individuals due to serious criminal offences—

“(1) A Minister of the Crown must lay a statement before Parliament within 40 days if both of the following conditions are met—

(a) the Secretary of State has approved a request from the Republic of Rwanda to return to the UK a person previously relocated under the terms of the Rwanda Treaty,

(b) the person specified in (a) had their permission to remain in the Republic of Rwanda revoked owing to the person’s participation in serious crime.

(2) If Parliament is notified of the conditions being met as set out in section (1),—

(a) a motion must be moved by a Minister of the Crown to be debated on the floor of the House of Commons, and

(b) the motion must require the House to—

(i) consider the statement laid before Parliament under section (1), and

(ii) consider whether or not as a result of the contents of the statement, there should be a suspension of the Rwanda Treaty.

(3) For the purposes of this section—

“the Rwanda Treaty” means the agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda for the provision of an asylum partnership to strengthen shared international commitments on the protection of refugees and migrants, signed at Kigali on 5 December 2023;

“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975.”.

New clause 9—Removals to Rwanda under the Illegal Migration Act 2023—

“Within 60 days of this Act receiving Royal Assent, the Secretary of State must lay before Parliament a statement referring to all individuals whose asylum claims have been deemed inadmissible since the granting of Royal Assent to the Illegal Migration Act 2023, confirming—

(a) the number of such individuals due to be removed to Rwanda under the Rwanda Treaty,

(b) the timetable for these removals, and

(c) the arrangements in place for any such individuals not due to be removed to Rwanda during the time period set out in the Rwanda Treaty.”.

This new clause requires the publication of a timetable for the Government’s plans to remove the 33,000 asylum cases accrued under the provisions of the Illegal Migration Act 2023 to Rwanda.

New clause 13—Suspension of Act if Monitoring Committee not in operation—

“(1) This Act ceases to have effect on the day after the Secretary of State has laid before Parliament a statement that the Monitoring Committee under Article 15 of the Rwanda Treaty has (for whatever reason) ceased to function.

(2) The suspension of this Act under subsection (1) is terminated (and this Act accordingly resumes effect) on the day after the Secretary of State has laid before Parliament a statement that the Monitoring Committee under Article 15 of the Rwanda Treaty has started to function normally after a period when it had ceased to function.”.

This new clause makes the operation of the Act resulting from this Bill dependent on the continued operation of the Monitoring Committee to be established under Article 15 of the Rwanda Treaty.

Amendment 39, in clause 1, page 1, line 2, leave out from “to” to “the” in line 3 and insert

“uphold the intention of Parliament to respect and abide by the Human Rights Act 1988 and International law (see subsection (6)) in respect of”.

This amendment rewords part of the declaratory Clause 1.

Amendment 40, page 1, leave out line 6.

Amendment 41, page 1, line 7, leave out paragraph (a).

This amendment aims to remove the treaty section from the bill and ensure there’s a separate debate on the matter.

Amendment 42, page 1, line 11, leave out paragraph (b).

Amendment 31, page 2, line 4, leave out subsection (4).

The effect of this amendment is to remove the reference to the sovereignty of parliament and the assertion that an Act is unaffected by international law.

Amendment 43, page 2, line 6, leave out “the validity of an Act is unaffected by” and insert

Parliament of the United Kingdom will normally legislate with the intention of abiding by, complying with, and implementing, international law”.

Amendment 44, page 2, line 7, leave out subsection (5).

This amendment leaves out the definition for the purposes of this Bill of a “safe country”.

Amendment 54, page 2, line 9, leave out from first “Kingdom” to “and” in line 11.

This amendment would remove from the Bill text which suggests that Parliament can determine whether the UK is in compliance with international law.

Amendment 55, page 2, line 14, leave out from “country” to end of line 19.

This amendment would remove from the Bill text which suggests that Parliament can determine whether the UK is in compliance with international law.

Clause 1 stand part.

Photo of Robert Jenrick Robert Jenrick Conservative, Newark

I know that the Minister for Countering Illegal Migration, my hon. and learned Friend Michael Tomlinson, said that he did not watch box sets, but here we are once again for the next episode of this drama. It is also the most important one of all, because this is likely to be the final opportunity for this House to consider the Bill. Does it work? Will we be able to stop the boats? Can we secure our borders? As Members in all parts of the House know, I feel passionately that illegal migration is doing untold damage to our country, and we have to make sure that the Bill actually does the job.

I want to speak to two amendments, but one in particular, and that is the one with respect to rule 39. Let me say at the outset of this debate that I do not believe that our membership of the European convention on human rights is sustainable. I think that that will become clearer and clearer to the British public in the months and years ahead, but that is not the purpose of my amendment today and it is not the subject of this debate. That is a discussion for another day. What we are discussing here is whether we believe it is appropriate for a foreign judge in an international court to impose a late-night judgment, often without the United Kingdom being able to give its own arguments or to hear the reasons for that judgment; whether we think that that really accords with the rule of law, particularly in relation to this policy; and whether we are willing to see the same thing happen again that happened in the summer of 2022, when a judge did just that, grounding the flight and preventing the policy, leading to months, indeed years, of legal action and tens of thousands of illegal migrants breaking into our country, costing our taxpayers billions of pounds, imperilling lives in the channel and perpetuating this challenge for years to come.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I am happy to support my right hon. Friend tonight on this amendment, as I did last night. I am on the Council of Europe, so I take quite a lot of interest in this. There is an established legal principle that, in fact, the judge was acting ultra vires in 2022 and that it was not in his powers to do that. There is also an established legal opinion that our Government could actually have ignored it. How does this relate to my right hon. Friend’s amendment?

Photo of Robert Jenrick Robert Jenrick Conservative, Newark

I will come on to the exact points that my right hon. Friend is making; they are fair and important ones.

As night follows day, if we do not make changes in this respect, we will find ourselves in a few months’ time in exactly the same position that my right hon. Friend Priti Patel was in as Home Secretary in the summer of 2022, wherein the Strasbourg Court could issue one, or potentially many, rule 39 interim measures. The decision about what to do will fall to a Minister—perhaps my hon. and learned Friend the Minister for Countering Illegal Migration—and other colleagues within Government. The courts will be involved and we will find ourselves in a very difficult, indeed intractable, situation. As I have said before, setting this scheme in train without knowing what we would do when that happens is a bit like pulling the pin out of a grenade but not being prepared to throw it. This is entirely foreseeable. Let us find a way through this challenge.

To answer the question from my right hon. Friend Sir Edward Leigh and to address the legitimate challenge that is made to those like me who make this argument, we have to go back to the foundation of the Court. Many of my colleagues say, “Well, it was great Conservative and British jurists who were the authors of the European convention on human rights. Why would you want to alter what they created?” With respect, that is a misunderstanding of what was done when the convention was founded and the treaty signed. No one signed up to the Court being able to make binding injunctions. In fact, quite the opposite: it was considered at the time and rejected. The UK, like all other signatories to the European convention, expressly declined to give the Court the power to make binding interim measures. This was created by activist judges in 2005, in response to the Mamatkulov and Askarov v. Turkey case, whereby the Court conferred upon itself a power that was not given in the treaty. It is a mistake that the United Kingdom has for many years, by convention, gone along with the approach the Court has taken to itself.

Do not take my word for it; take the word of many eminent jurists and lawyers. When this very point was considered in the other place during the passage of the Illegal Migration Act 2023, a not dissimilar point—I will not put words into their lordships’ mouths—was made by the noble Lord Sandhurst, the noble Lord Faulks and the noble Lord Woolf. In a foreword to an important piece related to this debate, the noble and learned Lord Sumption made a similar and very important point.

In fact, the professor of international law at the University of Oxford, Professor Richard Ekins, whom many of us respect highly, has said that to change the current approach is not to breach the rule of law but to defend the rule of law, because we, as signatories to the European convention, expressly objected to the approach, which has been conferred by activist judges outside the rule of law. We should not be following through with this.

Photo of Imran Hussain Imran Hussain Labour, Bradford East 1:00, 17 January 2024

At least the right hon. Gentleman has the strength to be vocal about what he actually believes, which is more than can be said for many other Conservative Members. He has made it clear that he could not care less about what the European convention on human rights says. Will he go further and openly say that this vile, dangerous and inhumane Bill has one purpose, which is to flout international law, and that his party could not care less about the human rights of the most vulnerable individuals?

Photo of Robert Jenrick Robert Jenrick Conservative, Newark

It is a pity, but I cannot say I am surprised, that the hon. Gentleman sinks to those depths and does not present a proper legal argument. Had he been listening to me, he would have heard that I did not say anything of the sort. The case that I am advancing is far from an undermining of the European convention on human rights, although there are many who might wish to leave it. We are defending the original intent of the European convention on human rights, and the rule of law, because it is not sustainable for activist judges in Strasbourg to bend and change the original intent of the signatories to that convention, in ways that they would never have accepted, by inventing new powers. I want us to defend the rule of law, and in this case it is best defended by saying that the Court’s interim measures are not binding on the UK, either on the domestic plane or on Ministers. It is better that we simply return to the position before 2005. In fact, I think most of this happened under a Labour Government.

Photo of Patrick Grady Patrick Grady Scottish National Party, Glasgow North

Is this British exceptionalism? Is the right hon. Gentleman making the case that the ECHR should no longer apply only to the UK? Or is he saying that it is not fit for purpose across the board and should be scrapped entirely?

Photo of Robert Jenrick Robert Jenrick Conservative, Newark

It seems as if we are having a dialogue of the deaf, because that is not what I said at all. I said that the debate about the European convention is for another day, but the hon. Gentleman is saying that the decision of the Strasbourg Court in 2005 to confer upon itself, without seeking the consent of any of the signatories to the convention, the ability to impose binding interim injunctions on other countries is the right way forward and, indeed, that those injunctions should be able to be made at the eleventh hour, in the middle of the night, without giving reasons, without asking for our arguments and without even naming the judge behind the ruling. That poses very serious rule-of-law questions and is a reason why conventions such as the ECHR are increasingly out of step.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

My right hon. Friend is, of course, right that it contradicts the long-established custom and practice that was the accepted basis for the rule of law in this country. He cites Lord Sumption and Lord Woolf, but he might also have cited the constitutionalist A. V. Dicey who, long ago, supported by Lord Denning and many others after, established that the relationship between the rule of law and this place is that a polity can make and change laws because it has the legitimacy to do so, conferred on it by the people. Frankly, that means this House is supreme. That in no way underestimates the significance of international agreements and treaties, but it affirms the significance and sovereignty of this House.

Photo of Robert Jenrick Robert Jenrick Conservative, Newark

I entirely agree with my right hon. Friend.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

As somebody who has served on the Council of Europe and was proud to do so because of the United Kingdom’s history of setting it up to protect citizens from overbearing Governments, I think it is worth looking at the data on interim measures. In 2019, 82 requests were made to the Strasbourg Court for interim measures against this Government and zero were granted; in 2020, 47 requests were made and two were granted; and in 2021, 51 requests were made against this Government and five were granted. That is just seven out of 180. Is the right hon. Gentleman really suggesting that this Government get things right all the time, so there should be no capacity to challenge them legally, even when irrevocable harm is on the agenda?

Photo of Robert Jenrick Robert Jenrick Conservative, Newark

That is not the point I am making. Once again, the hon. Lady is not listening. The point I am making is not about the virtues or otherwise of our membership of the European convention on human rights, which I have said is a matter for another day. The discussion on the amendment is simply about whether we believe it is right that the Strasbourg Court should confer upon itself, without our consent, the ability to impose binding injunctions. There is a separate question, not unrelated, as to how those injunctions are made. I would like to believe that most of us agree that doing them late at night with an unnamed judge, without giving reasons, raises serious rule-of-law questions. Perhaps the hon. Lady disagrees with that, but the purpose of the amendment is to enable us to return to a previous position. [Interruption.] She now has her clip for social media, so the rest of the debate is largely irrelevant.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Chair, Human Rights (Joint Committee), Chair, Human Rights (Joint Committee)

I want to address the point of law in respect of the Strasbourg Court. The difficulty with the right hon. Gentleman’s argument is that, under the scheme of the convention, the Court is the body that determines the meaning of the convention. Not just in the 2005 case but consistently thereafter, the Court has held that failing to comply with interim measures amounts to a breach of article 34 of the convention. That is the legal difficulty with his argument, is it not?

Photo of Robert Jenrick Robert Jenrick Conservative, Newark

No. There may be a good-faith disagreement between the hon. and learned Lady and me, but I do not believe that international bodies and courts should be able to grow organically as a result of the decisions of activist judges. This is a matter of the rule of law and of parliamentary sovereignty. We in the United Kingdom chose to be a signatory to the European convention on human rights, and I do not think it is correct that the Court gave itself this power in 2005.

I return to how this matter relates to the policy. First, let us cast our minds back to the summer of 2022. A rule 39 interim measure was imposed by the Court to ground a flight and to prevent us from proceeding with the policy. Do we think that anything has changed in the months and years that have passed? My conjecture is no. We will be in exactly the same position in a few months’ time unless we take action.

We included a provision in the Illegal Migration Act that merely restated the orthodox constitutional and legal position that, in theory, it is at a Minister’s discretion whether to comply with a rule 39 interim measure. Underlying that was the Government’s legal advice—which I believe to be erroneous, for the reasons I have just described—that they would be in breach of international law not to do so. As far as I am aware, the Attorney General and the Government Legal Service therefore continue to advise Ministers and civil servants that a decision not to support a rule 39 interim measure would be illegal and in breach of the ministerial code.

My best recollection was that no Minister should give any indication that they would ignore a rule 39 interim measure. The Attorney General’s position, as I understand it, is that there is a very small number of cases in which it is conceivable that one could do so, but that is a vanishingly slim number of cases and situations. As night follows day, if that position were to continue, we would find ourselves in exactly the same situation as we were in during the summer of 2022. I do not want to be in that position. It would be a huge breach of trust with the British public if we knew that something was likely—if we watched this train not speeding down the tracks but moving slowly towards us—and had ample opportunity to resolve the issue, but chose to do absolutely nothing. We have kicked the can down the road and now there is no more road—at the end of the road there is a precipice. We are moving forward with a scheme, but we do not know how to implement it. We are pulling the pin out of the grenade, but we have not got the guts to throw it.

We need to resolve this and the way to do that is simple: the Government could accept the amendment that stands in my name and those of many others. To do so is not to say that we are leaving the European convention on human rights. There are respectable international law arguments behind the amendment, and I would wager that the Government would have no difficulty in finding senior King’s counsel and former judges in the other place who would support my position—and the Government’s position, should they choose to adopt it.

The Government could change some of the accompanying minor documentation, such as the civil service code and the ministerial code. I would not place too much emphasis on those. At the end of the day, this is not about civil servants; it is about Ministers and the law. A good captain does not blame his sailors. It is on us: we have the power to fix this and we have the responsibility. So let us use the opportunity we have today with the amendment to resolve this situation. If we do not, we will be here in two months’ time, the Strasbourg Court will impose a rule 39 measure and the Government will be scrambling around trying to resolve the situation, and they will have no one else to blame.

I am here to help the Government, to ensure that this policy works, because I, like everyone, at least on this side of the Committee, believe passionately that we have to make this policy work and to stop the boats. So I strongly encourage my hon. and learned Friend the Minister, and indeed the Prime Minister, to support the amendment, and I encourage everyone else on both sides of the Committee who shares my determination to fix this problem to do exactly the same.

Photo of Stephen Kinnock Stephen Kinnock Shadow Minister (Home Office) (Immigration)

It is a pleasure to serve under your chairship again, Dame Rosie.

Here we go again: it is day two in Committee for the third asylum Bill in less than two years, and day 643 of the Rwanda psychodrama that the Conservative party continues to inflict on our weary and baffled nation. Let us not forget that the Rwanda saga started off as Operation Save Big Dog, that desperate and, thankfully, doomed attempt to save the skin of Boris Johnson. But then, for some bizarre reason known only to Conservative Members, it did not fade away once Mr Johnson exited stage right—quite the opposite. It took on a life of its own, evolving into an article of faith for the Conservative party, a purity test that has come to define whether or not someone is a true believer, so vast quantities of political capital and untold amounts of Government time, resources and energy have been squandered on a policy that, at most, might one day enable the transfer of a few hundred asylum seekers to Rwanda. It truly is an absolutely extraordinary state of affairs.

Meanwhile, out there in the real world, food bills are spiralling and mortgages are going through the roof; 7.8 million people are on NHS waiting lists; raw sewage is being pumped into our rivers; and at least 30,000 people risked life and limb to cross the channel on small boats. Nothing in this Bill will address any of those challenges, not even the last one. As I said yesterday, the Rwanda plan is extortionately expensive, with £400 million on its way or committed to the Government of Rwanda, without a single asylum seeker ever having been sent there. In addition to that vast sum, it will cost at least £169,000 to send each individual asylum seeker to Rwanda; the figure will probably be far higher, but the Government are refusing to come clean on that point.

The plan is also unworkable, because there is no evidence that sending just a few hundred asylum seekers will deter the tens of thousands who are crossing the channel each year. Desperate people who have risked life and limb crossing continents to escape violence and persecution are not going to be deterred by a less than 1% chance of being sent to Rwanda. Of course, we know that in addition to being unaffordable and unworkable, the scheme is unlawful, as has been found by the Supreme Court, owing to Rwanda’s not being, as it stands, a safe country. Yet here we are again, being forced to indulge the fantasies, fixations and psychodramas of Conservative Members.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough 1:15, 17 January 2024

We have heard that before, but let us address the narrow legal point. Does the hon. Gentleman think that it was right for a Strasbourg judge to impose an injunction in the night, on his own, without giving the British Government the chance to make their case?

Photo of Stephen Kinnock Stephen Kinnock Shadow Minister (Home Office) (Immigration)

What we are seeing is complete shambolic incompetence in the asylum system, and if cases are not made clearly and are open to legal appeal, legal appeals will come and, in some cases, will succeed. On the broader point, the UK is party to a number of international agreements and conventions. That reality is extremely important to our national interest. In many cases, it strengthens our sovereignty, not weakens it. So Labour Members are clear that politics is about choices, and when we look at the bigger picture of our country’s place in the world, it is absolutely clear that our sovereignty and national interest are strengthened, not weakened, by being party to these international agreements and conventions.

It is deeply troubling that every day seems to bring a new example of the tail wagging the dog. We now hear that the Prime Minister is assembling 150 judges and 1,000 staff to fast-track Rwanda cases through our courts. Sorry—what? Does he not know that under his leadership and on his watch, the Crown court backlog in this country is at a record high of 65,000? Victims of serious crimes regularly wait more than two years for their day in court, so that they can seek justice against the perpetrator. The system is completely broken because of 14 years of Tory incompetence and indifference, yet the Prime Minster clicks his fingers and, glibly, is apparently able to magic up 150 judges and 1,000 staff. Where on earth have those 150 judges been hiding all this time? Are they going to be new recruits or are they currently working? If it is the latter, are they going to be told to drop everything and transfer to dealing with asylum cases? I trust the Minister will be able to answer those questions today, but I am not holding my breath.

Regardless of the operational issues, imagine the impact the Prime Minister’s glib announcement yesterday would have on you if you were a rape victim who has been languishing for years in our broken judicial system. Imagine the anger and disgust you would feel at the spectacle of a Conservative Prime Minister sacrificing your fight for justice on the altar of his desperate attempt to cling to power by appeasing his Back Benchers. What an utterly shameful and shabby way for the Prime Minister of our country to behave.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence)

On the point the shadow Minister made about political choices, he is valiantly opposing the Bill and he voted against it on Second Reading, just as I did, but does he recognise that given that this is the last Session of this Parliament, the Parliament Act cannot be engaged and plenty will take place in the other place, so the only way the Bill will become law is if Labour makes the political choice to say that fighting and frustrating it any longer is not in its interest?

Photo of Stephen Kinnock Stephen Kinnock Shadow Minister (Home Office) (Immigration)

I thank the hon. Gentleman for his comments, but we have made it absolutely clear that the Bill is unaffordable, unworkable and unlawful. The Opposition will never support any piece of legislation that is guilty of those three sins—that is as clear as crystal to us. With pride we voted against the Bill on Second Reading, with pride we voted against the amendments that would only make it even worse, and with pride we will vote against it on Third Reading.

Photo of Imran Hussain Imran Hussain Labour, Bradford East

My hon. Friend is right about the purpose of the Bill, which is one of the most flagrant attempts to directly flout international human rights law that we have seen. Does he agree that that is the only purpose of the Bill before us today?

Photo of Stephen Kinnock Stephen Kinnock Shadow Minister (Home Office) (Immigration)

I thank my hon. Friend for his powerful intervention. It is difficult to determine the true purpose of the Bill these days, because it has become embroiled in various Tory internal wars, fights between factions and certain people’s leadership ambitions, but we know it will not stop the Tory small boats chaos. It is that chaos that has to be stopped. The people smuggler gangs are trading in human misery and must be stopped, but we need practical, sensible, pragmatic measures, rather than the headline-chasing gimmicks we have seen from this Government over the last years and months.

The irony of the announcement yesterday about the judges was that, by definition, it is an admission of failure, because it recognises that the Bill will fail to prevent the legal challenges and appeals that the judges will be working on. The Prime Minister’s announcement yesterday was further evidence of the profoundly troubling way in which the Government are prepared to disregard and disrespect our judiciary. I urge Members on all Benches to take careful note of what Sue Carr, the Lady Chief Justice, told the Justice Committee yesterday:

“I’m afraid that this headline draws matters of judicial responsibility into the political arena…matters of deployment of judges, the allocation of work for judges and the use of courtrooms is exclusively a matter for the judiciary and, more specifically, a matter for myself and the senior president of the tribunals. It’s really important that people understand that clear division.”

There speaks a true democrat.

Photo of Tom Hunt Tom Hunt Conservative, Ipswich

The shadow Minister knows that our view on the Government Benches is that the problem cannot be comprehensively tackled without a deterrent; I cannot think of any examples around the world where it has been tackled without a deterrent. The shadow Minister has spoken before about safe and legal routes, and I have asked him questions about whether the numbers using those routes should be capped or uncapped, so has he thought about what the cap level would be? What would be the number?

Photo of Stephen Kinnock Stephen Kinnock Shadow Minister (Home Office) (Immigration)

It is clear that in order to stop the Tory small boats chaos, we have to smash the criminal smuggler gangs. That will be done through enhanced co-operation with European partners and allies. The shadow Home Secretary and the Leader of the Opposition visited Europol recently. It is hugely important that we get better data sharing and co-operation with European authorities, such as Europol and Frontex, in order to be able to smash the criminal gangs upstream. As I will go on to say in my remarks, the more we jeopardise co-operation with our European partners and allies by threatening to leave the European conventions, the more difficult we make it to have that European co-operation and the more we undermine our own ability to deter the criminal smuggler gangs. If someone were looking for a definition of counterproductive legislation and policies, this would be the one they would go for.

Several hon. Members:

rose—

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

The shadow Minister makes a good point about co-operation. He is right that the only way to tackle the problem is through a suite of measures under an umbrella policy but, as my hon. Friend Tom Hunt just described, an important part of that is deterrence. The brand and the marketing message of the criminal gangs is that people will get to Britain and never leave. Sadly, that has too often been the case, has it not?

Photo of Stephen Kinnock Stephen Kinnock Shadow Minister (Home Office) (Immigration)

As I said yesterday, there are pragmatic, sensible things the Government have been doing that we support. For example, the Opposition fully support the Albania deal. The fact that removals to Albania are facilitated by that deal has acted as a deterrent and led to a clear decrease in the number of Albanians trying to come over. Why do the Government not do more of that? They should do the pragmatic, sensible stuff rather than being sucked into endless bun fights about the Rwanda deal, which is unaffordable, unworkable and unlawful. I say to the right hon. Gentleman that it is a question of priorities: the Government have limited time, resources and energy, so they should focus it on the stuff that works rather than on the headline-chasing gimmicks.

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West

The mantra has been clear for many months from the Opposition Benches, including from the shadow Minister himself, about the need for safe and legal routes. Can we have some indication of what level of immigration through safe and legal routes would be needed to address the problem? I put it to him that as soon as that cap is reached, the rest will come by boat unless there is a deterrent.

Photo of Stephen Kinnock Stephen Kinnock Shadow Minister (Home Office) (Immigration)

On safe and legal routes, as a priority I would look at things like the Afghan schemes, which are completely and utterly broken. The Afghan relocations and assistance policy has collapsed and the Afghan citizens resettlement scheme never really worked. Which nationality is always in the top three or four nationalities crossing the channel? The Afghans. We need to get the schemes that are currently in place working properly, and then we need to look at international co-operation, working with our European partners and allies, to create a dynamic whereby the United Kingdom does its bit, as part of ensuring that those trying to cross the channel in small boats do not do so.

Photo of Robert Jenrick Robert Jenrick Conservative, Newark

To draw the shadow Minister back to the amendments and the interim measures of the Strasbourg court, and to build on the question asked by my right hon. Friend Sir Edward Leigh, am I right in understanding that the Labour party’s position is that it does not want to see reform of rule 39 interim measures? I find that surprising, given that the UK is working in concert with many, perhaps all, signatories of the European convention on human rights to do just that. Most of our friends and allies in Europe consider there to be serious rule of law issues arising from the so-called pyjama injunctions and, like them, we want to see them reformed. Would the Labour party abandon that piece of work?

Photo of Stephen Kinnock Stephen Kinnock Shadow Minister (Home Office) (Immigration)

When we enter Government, as I hope we will, everything we do will be based on a test: is it affordable, is it workable and is it legal? The legal piece has to be based on compliance with our international legal obligations. However, if one cherishes something, one also has to be open to changing and improving it. It is clear that a global conversation and a European conversation are required about the immigration position in which we find ourselves. If we, in concert with our international partners and allies, can find ways to improve the system, of course Labour would look to do that. Unfortunately, we cannot negotiate that deal from Opposition, but we will certainly prioritise that as and when we come into Government.

Photo of Stephen Kinnock Stephen Kinnock Shadow Minister (Home Office) (Immigration)

If the hon. Gentleman does not mind, I will make a little more progress and then come back to him.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (First Deputy Chairman of Ways and Means)

Order. It is the convention that any Member wishing to intervene should have been in the Chamber from the start of the speech. I know that the hon. Gentleman came into the Chamber a little after the start of Stephen Kinnock’s speech.

Photo of Stephen Kinnock Stephen Kinnock Shadow Minister (Home Office) (Immigration) 1:30, 17 January 2024

Thank you, Dame Rosie. It is against the backdrop of chaos, confusion and “party before country” that we consider the amendments before us today. I wish to start by commenting on the amendments in the name of the former Immigration Minister, Robert Jenrick.

This Bill is riddled with shamefully anti-democratic clauses that undermine the rule of law and seek to undermine the conventions and values that we on the Labour Benches hold dear. Perhaps the most egregious example of this is the admission in the Bill that its provisions may not comply with the United Kingdom’s obligations under international law. Indeed, clause 3 explicitly disapplies international agreements, including the 1951 refugee convention and the 1984 convention against torture. The leader of the more moderate Conservative caucus, the one nation group, described this approach as “authoritarian” and “a betrayal” of who we are as a nation. He was absolutely right on both points. Our liberal democratic nation is founded on the rule of law and our respect for the judicial function; our international standing is founded on our commitment to human rights and international law; and our proud history is founded on the delivery of those principles, including, indeed, Winston Churchill himself helping to establish Britain as a founder of the 1951 convention.

I made the point yesterday—I will make it again now—that it is not for politicians to interfere with court judgments, and it is not for the Government to respond in a knee-jerk manner to court rulings that they dislike. That is the behaviour of an autocracy, not a democracy. How on earth can our country be the international standard bearer for the rule of law in the face of, for example, Putin’s barbarism or an increasingly belligerent China if we are breaking our own international obligations? Indeed, how can we even hold Rwanda to account on its commitment within this new treaty if we are not practising what we preach? Then there is the real and present danger that this Bill represents to the international agreements that Britain is party to, all of which are central to our national interest.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Those who are worried about social media may also find it useful to use their phones in the Chamber to double-check those international obligations, and indeed the original text of the European convention on human rights, which states explicitly:

“The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.”

From the start, it was intended that there was a check—[Interruption.] I listened to Robert Jenrick; I hope that he will accord the same respect and courtesy to me. Does my hon. Friend agree that, from the start, it was envisaged that it was an important check and balance to involve the courts in decision making?

Photo of Stephen Kinnock Stephen Kinnock Shadow Minister (Home Office) (Immigration)

My hon. Friend makes a very good point. As we have also seen in the letter that Nathalie Loiseau sent to her about the potential risks that there are to the trade and co-operation agreement, and to a range of other commitments, it is absolutely clear that it is in our national interest to pool our sovereignty with other nations through these conventions in order to strengthen our own national sovereignty. I agree absolutely with her on that point.

Let us look at some of these agreements. First, the European convention on human rights is woven integrally into many different parts of the Good Friday agreement. The political settlement in Northern Ireland should not be taken for granted, so disapplying the ECHR in British legislation would be playing with fire in that regard. The Prime Minister’s very own Windsor framework, which sought to resolve the issues around trade and Northern Ireland post-Brexit, was agreed on the basis of the UK’s full commitment to the Good Friday agreement. I am sure that the Prime Minister would not want to accidentally set fire to his own carefully crafted negotiations.

The EU-UK trade and co-operation agreement includes clauses on important mutual security co-operation, which are reliant on Britain’s commitment to the European convention on human rights. Under articles 1 and 692 of the TCA, UK withdrawal from the ECHR entitles the EU to immediately suspend or terminate the entirety of section 3 of the TCA. Therefore, introducing notwith-standing clauses into the Bill means that the Government would also be dicing with the risk of jeopardising security co-operation with our European partners and allies.

The irony here is that this very security co-operation and data sharing is of pivotal importance when it comes to smashing the criminal gangs that are behind the small boat crossings. This Bill, which is designed to deal with the issue of the small boat crossings and the criminal gangs, could undermine the very co-operation that is supposed to be smashing those gangs—you literally could not make it up. I do not believe that such legislative belligerence is in the interests or the traditions of the Conservative party, and I certainly do not believe that it is in the interests or traditions of our own proud nation. The amendments that have been tabled by the former Immigration Minister would, I am afraid, simply increase all the risks that I have described, so we on the Labour Benches will be opposing them.

Let me turn now to Labour’s amendments. Again, I stress that we reject the Bill in its entirety and that our amendments are designed to limit the damage of this unaffordable, unworkable and unlawful piece of legislation. A major concern of ours is the way the Government are handling the entire Rwanda saga from the point of view of transparency—everything from costs and the processing capacity of the Rwandan Government, to Ministers trying to hide the fact that criminals will be sent from Rwanda back to the UK, and the fact that the UK may have to take some refugees from Rwanda.

Our amendment 36 and new clauses 7 and 8 are all part of an attempt to force the Government to shed more light on the less clear aspects of the scheme, and to introduce more accountability. Amendment 36 would require the Government to publish a full impact assessment, setting out the costs per person for the removal scheme, and the confidential financial memorandum already agreed between the two countries. We believe that the cost per person is far higher than the £169,000 already acknowledged by the Government, and we want Ministers to come clean on that point.

New clause 7 would require the Secretary of State to report to Parliament on a regular basis—every 90 days, as with the monitoring committee—on the operation of the scheme, including data on the number of people relocated to Rwanda and the costs incurred by the UK Government. Similarly, new clause 9 would require regular reporting on the number of asylum seekers declared inadmissible under the Illegal Migration Act 2023 from the point of its entry into force—whenever that may be—and the number of such asylum seekers who were subsequently removed to Rwanda.

New clause 8 would impose further reporting requirements on the Government, including on the number of individuals involved in criminal activity who have been transferred from Rwanda to the UK. In the event of any such transfers, the Government would be required to table a debateable motion in Parliament, so that MPs could consider whether, in the light of the transfers, the operation of the treaty should be suspended. It is important that the British public understand just how many foreign criminals the Conservative Government will be importing back into our country as part of this Rwanda deal.

Further amendments relate to the monitoring committee—a central part of the new treaty, which both sides are required to set up in order to oversee the operation of the removal scheme, and to provide a mechanism for individual asylum seekers to lodge confidential complaints directly with the committee. The Supreme Court raised initial concerns about the capacity of the committee to review complaints in its judgment. Our amendment 59 would make the establishment of this committee a necessary precondition for the commencement of this Act. New clause 5 would place the committee on a statutory footing. The monitoring committee would be required to report to Parliament every 90 days, confirming that all the relevant obligations set out in the treaty are being fully complied with.

In the event that the monitoring committee either fails to meet the 90-day requirement or reports to Parliament that Rwanda is not in full compliance with any provision of the treaty, this Act would effectively be suspended from being in force until any issues with timing or compliance have been resolved. Linked to this, new clause 13 stipulates that the operation of this Act should be suspended at any time when the monitoring committee “is not in operation”.

Finally, new clause 5 states that it is for a Minister of the Crown, and that Minister only, to decide whether to comply with any “interim measures” issued by the ECHR for the purposes of blocking a person’s removal to Rwanda. Amendment 38 stipulates that, in making such a decision, the Minister in question must consult the Attorney General.

The Conservative psychodrama of the past 24 hours only goes to serve the old political adage: if a Prime Minister is incapable of managing his own party, he must be utterly incapable of running the country. The resignation of not one but two deputy chairs last night, followed by a 60-strong rebellion, illustrated the level of utter incompetence at the heart of his Administration. We know what they say: to lose one deputy Chair could be down to misfortune; to lose two in one night looks like sheer carelessness. At least we might see a bit more of them on their GB News show, discussing days of yore while spoon-feeding each other cold baked beans, which was my personal television highlight of 2023. It also explains quite a lot about the amount of hot air emanating from the Government Benches. I certainly hope to see and hear more from them in this election year.

In all seriousness, what on earth is going on? The country is looking on, baffled that the Prime Minister could pay the Rwandan Government £400 million for nothing, yet place such little focus on strengthening our security co-operation with Europe to stop the boats in the first place, and he has spent little time improving our broken public services or helping our struggling households during the cost of living crisis. They are perplexed that the Conservatives are spending so many hours on a piece of legislation that is not really meant to stop the boats; it is about the Prime Minister getting a single plane in the air, with a handful of asylum seekers on it, so that he can say, “Look, I did it! I delivered the Rwanda plan and removed a few refugees.” He thinks the British people will deliver something to him on that basis.

We are perplexed because this is not the behaviour and politics we can afford to expect from a British Prime Minister. These are not the serious policies that will fix our asylum system and make our country a better place—all the headline-chasing gimmicks over hard graft and getting a grip. That is not what the British public voted for. Indeed, nobody—not even his own party—voted for him at all.

This plan is a con. This Bill is a sham. I urge all hon. Members to get behind Labour’s amendments to limit the damage and to vote against the Bill on Third Reading. It is unworkable, unaffordable and unlawful. If we are to stop the Tories’ small boats chaos and end expensive asylum hotel use, which costs £8 million a day, this Conservative psychodrama needs to end. We need Labour’s five-point plan to end this chaos, starting with going after the criminal gangs upstream in a new security partnership with Europol. We need a Government that put country before party, and we need a general election this spring.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (First Deputy Chairman of Ways and Means)

It may be helpful if I clarify a few things. First, if colleagues wish to intervene, it is important that they are present from the start of the relevant speech. It is also important that they remain to the end of the speech.

Secondly, I intend to give priority to those who have amendments down on the selection list—I will then come to others. In addition to the fact that we are discussing amendments, I should explain that, because we are also discussing clause stand part, the debate can range slightly more widely than would be normal, but it is not a Third Reading debate. There will be a Third Reading debate—an hour has been put aside for that—just in case colleagues prefer to speak at that stage. I know that Sir Jeremy Wright has an amendment, so I call him to speak.

Photo of Jeremy Wright Jeremy Wright Conservative, Kenilworth and Southam

Thank you, Dame Rosie. In fact I have two amendments—amendments 54 and 55—on which I wish to focus my remarks. We all understand that the purpose of the Bill is to allow this Parliament to designate Rwanda as a safe country so that people can be removed to it lawfully. In order to achieve that, of course, we require a definition of what a safe country is. The Bill does that in clause 1(5)(a), which describes a safe country as

“a country to which persons may be removed from the United Kingdom”.

So far, so good. It seems to me that that is an essential part of the Bill’s inherent purpose.

The part of that subsection (a) that concerns me, and on which my amendment is focused, is where it says that that is

“in compliance with all of the United Kingdom’s obligations under international law that are relevant to the treatment in that country of persons who are removed there”.

In other words, the Bill seems to say that the United Kingdom, by saying that Rwanda is a safe country, can also deem itself to be in compliance with a set of its international law responsibilities. I do not think that can be correct.

Few in this House are as familiar as I am with the vagaries and complexities of international law. If international law means anything, surely it must mean that it does not lie in the hands of any individual nation state—even this one—to determine its own compliance with it. Were it otherwise, international law would not really be international, and it would certainly serve no purpose in containing bad behaviour, as we sometimes ask it to do.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings 1:45, 17 January 2024

I work closely with my right hon. and learned Friend in a number of ways, as he knows, and I am well aware that he is a former Attorney General. If he were right that it is not for the Government or this House to determine whether measures are compliant, why on earth would they seek and get the Attorney General’s advice on just that?

Photo of Jeremy Wright Jeremy Wright Conservative, Kenilworth and Southam

My right hon. Friend knows that the Attorney General is consulted on a variety of different legal questions, both domestic and international. He would not expect me to disclose any of the advice I have previously given, but I can tell him that the Attorney General does give advice on whether the Government’s actions may or may not be in compliance with international law, but neither the Attorney General, nor, I think the Government, expects to be the ultimate arbiter of that question. The advice is given as to whether it is likely that that action would be in compliance with the law. I will come in a moment to what I think the Bill and the Government can properly do in relation to international law responsibilities, but it seems to me that what they cannot properly do is set themselves up as judge in their own cause on questions of international law. This House would be wrong to pass a Bill that suggested that they could. That is really where my amendments are focused.

As I say, there is a good practical reason why we should be nervous about this: because we do sometimes rely on international law to discharge our own policy intents and purposes. Not more than 48 hours ago in this place, we were doing exactly that. We were saying that it is important to criticise the actions of the Houthis in the Red sea because they contravene principles of international law. We were saying too that we justify our own response to that because it is in accordance with the principles of international law, and quite right, too. We would not have accepted the Houthis’ unilateral declaration that they were in compliance with international law when they did what they did, nor should we have, and we would not of course accept a Russian legislative Act to say that the invasion of Ukraine by Russia was in compliance with Russia’s international law responsibilities.

Let me make it clear that I am not, of course, suggesting that what the Government have in mind here is in any way comparable to those two examples, but it seems that the point here is that to arrogate to oneself the right to declare one’s own compliance with international law runs the risk of, first, other states finding comfort in our example and, secondly, undermining our own messages in other situations. That makes this not just bad law, but bad foreign policy.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

I am pleased to hear what the right hon. and learned Gentleman has to say on the question of international law. Does he share my concern—and I fully accept that I am not as legally qualified as him—that the Government’s own legal advice says that by stating that the Bill is incompatible, it makes it compatible? Is that not worthy of the mad March Hare when it comes to consistency in standing up for the rule of law?

Photo of Jeremy Wright Jeremy Wright Conservative, Kenilworth and Southam

I suspect that what the hon. Lady is referring to is the statement of incompatibility with the convention on human rights and the Human Rights Act 1998 at the beginning of the Bill. Of course, that provision is there for a reason: to allow the Government, if they so choose, to act in defiance of those responsibilities. That is perfectly proper, and I will come on to explain why I think that is something the Government can properly do.

I am concerned about something a little different. Instead of saying, “We don’t think this is in compliance with international law, but we’re going to do it anyway.”, the Bill is saying, “We think this is in compliance with international law; it is down to us to decide that, and we have so decided.” That feels to me like something that we could not and should not do. It would be concerning enough, in my judgment, if this Bill only tried to deem the UK’s compliance with international law, but it also seems to say that we can deem Rwanda’s compliance with international law.

That is set out in clause 1(5)(b), which goes on to say that, for the purposes of this Act, a safe country includes, in particular, a country

“from which a person removed to that country will not be removed or sent to another country”.

So far so good; that is essential, to me, to doing what the Bill seeks to achieve. However, it goes on to say,

“in contravention of any international law”.

Again, it cannot lie in the hands of this Parliament to decide whether or not a person may be removed to another country in contravention of any international law. It goes on in sub-paragraph (b)(ii) to say that a country would be a safe country

“in which any person who is seeking asylum or who has had an asylum determination will both have their claim determined and be treated in accordance with that country’s obligations under international law.”

It seems to me that the Bill is seeking to say that, if we deem it so, not only is the UK in compliance with its international law responsibilities, but Rwanda is going to be as well. That feels to me not valid and somewhat over-ambitious.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

Does my right hon. and learned Friend, who has great experience as a former Attorney General, agree that the deeming provisions under the European Union (Withdrawal) Act 2018 create a rather similar situation, because we deemed EU law to be UK law? Therefore, on the analogy he has just given, I imagine he would argue—though I think he might even have been Attorney General at that time—that that did exactly the same sort of thing, although I am listening with great interest to the more precise point he is making about the relationship with international obligations, on which I will speak later.

Photo of Jeremy Wright Jeremy Wright Conservative, Kenilworth and Southam

I am grateful to my hon. Friend for his intervention. I know, Dame Rosie, you would not want me to abuse the privilege you have given us to range slightly more widely in this debate to range quite that widely, so I will not. He is right that I am making a fairly precise point about what this language appears to me to say. I stress that I do not think it is necessary to include this language in order to achieve the objective that the Government have set in this legislation—with which I have some sympathy, although their methods make me nervous, and I make no bones about that. Worse than unnecessary, it presents some dangers that I do not think we need to present in order to achieve the Government’s objectives.

I suspect my hon. and learned Friend the Minister will tell me in a few moments’ or hours’ time that I do not need to worry about any of this. He may give two reasons for that. First, he may say that the Bill does not mean what I think it means. You will forgive me for saying this, Dame Rosie, but I am increasingly troubled that in this place we answer points such as mine by saying, “Yes, well, it doesn’t really mean that, and we don’t really mean that by it.” We should be concerned as legislators with what the language we are passing into law actually says, not what we meant to say. I am concerned that what this language says is not in accordance with what I am sure the Minister wants to do or what the Government want to do, but it might none the less have that effect, or be taken by others to mean the things that I am concerned about.

When the Bill says what a safe country is, it is potentially confusing two different things. One is deeming our own compliance with international law, which I do not think any country should be able to do, and the other is saying that Parliament resolves to do something even if it contravenes the UK’s international law obligations, which, going back to the previous intervention by Stella Creasy, I do think the British Parliament can do. We as a legislature can resolve to do that if we so choose.

We have to decide whether that is a wise and sensible thing to do, with all the ramifications it might bring, but as a matter of law it seems to me that the UK Parliament can, if it wishes, pass a law to say, “Despite or irrespective of our international responsibilities, this is none the less what we want to do.” That is not the same as deeming our own compliance with international law, which I worry this language almost certainly seems to do.

The point I make about the UK Parliament being able to do things even when they contravene its international responsibilities is already in the Bill and reflected in the language of clause 1(4)(b), which points out that

“the validity of an Act is unaffected by international law.”

Quite right. We can, if we so choose, deem a country a safe country for the purposes of domestic decision making if we want to. What I do not think we can or should do is legislate to say that we comply with our international law responsibilities when we do not—and when, crucially, to achieve the objective of this Bill we do not need to.

The second reason the Minister may give for why I do not need to worry myself about all this is that he may say that domestic and international law exist on different planes, and that this legislation is only targeted in any event at domestic authorities, so the Bill could not, even if it chose to try, deem our compliance with international law in actual fact. I would agree with that. It is perfectly true that domestic law and international law operate on different planes, and it is not likely that this Bill could determine any question of international law before any international tribunal.

If that is so, though, why include the language? If it does not have any meaning or legal effect, it does not serve any purpose, but I fear it may send a damaging political signal to other states. The language I am concerned about, which amendments 54 and 55 would remove, is either offensive or otiose, and in either respect the Bill would be better without it.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Chair, Human Rights (Joint Committee), Chair, Human Rights (Joint Committee)

It is a pleasure to follow Sir Jeremy Wright. I find myself in agreement with much of what he said, and he made his points very forcefully.

I rise to speak to amendments 32, 33 and 34 and new clause 4 in my name and amendments 4 and 5 in the name of my hon. Friend Patrick Grady, and to support the amendments in the name of my hon. Friend Alison Thewliss. I also want to comment on clause 3 and clause 5 stand part and the amendments that have been put forward, particularly by Robert Jenrick, in my capacity as Chair of the Joint Committee on Human Rights.

I turn first to my amendments, which relate to the impact of this Bill in Scotland, and in which respect I am speaking in a personal capacity. My amendments and those of my hon. Friend the Member for Glasgow North deal with the extent of the Bill, its extension to Scotland and the date of its commencement in Scotland. We both seek to prevent this Bill’s extending to Scotland and, in the event that we are not successful in doing that, my amendments seek to ensure that the Bill will not extend to Scotland without the legislative consent of the Scottish Parliament and that nothing in it will interfere with the supervisory jurisdiction of the Court of Session or its nobile officium. I will explain what that means later.

We must not forget that the regime this Bill seeks to impose, together with the Illegal Migration Act 2023, is imposed on asylum seekers across the United Kingdom, not just those who arrive in small boats on the Kent coast. The UK Government have not forgotten that, and that is why they want this Bill, with its far-reaching and unprecedented ouster clauses, to extend to Scotland. Accordingly, asylum seekers in Scotland looking to our courts for protection will find that the courts in Scotland have been emasculated in the same way as this Bill emasculates the courts of England and Wales.

As well as having their jurisdiction ousted on certain matters of fact, as was debated yesterday, the Scottish courts will find themselves unable to apply the Human Rights Act or to respect the United Kingdom’s obligations under the European convention on human rights and other international treaties. I believe that that constitutes a serious and unprecedented intrusion on the jurisdiction of the Scottish courts, and a serious interference with the separation of powers between legislature, Executive and judiciary. I do not think that this Parliament should be rubber-stamping the Bill at all, but particularly not in relation to Scotland.

What the Bill seeks to do in emasculating the jurisdiction of the Scottish courts in relation to asylum seekers is anathema to the Scottish constitutional tradition. People in Scotland do not want it; they did not vote for it—in fact, nobody in the UK voted for this, because the policy was not in the Government’s manifesto. In contrast to England and Wales, no opinion polls carried out in Scotland support the Bill. As the great Scottish judge Lord President Cooper noted in the famous case of MacCormick v. Lord Advocate in 1953:

“The principle of the unlimited sovereignty of Parliament is a distinctively English principle, which has no counterpart in Scottish constitutional law”.

In Scotland, it is the people who are sovereign. That makes a difference to our view of how constitutionalism works and on the separation of powers.

It is the essence of the Scottish constitutional tradition that Executive power should not be unchecked. That goes back in our history as far as the declaration of Arbroath in 1320, when Scottish nobles asserting the sovereignty of the people of Scotland in a letter to the Pope told his Holiness that if the King of Scotland should ever seek to make Scots subject to the King of England again, they would kick him out and seek another King to defend him. In Scotland, the sovereignty of the people is our guiding principle, not the sovereignty of the monarch. Neither our Parliament nor this Parliament is sovereign. It is the people who are sovereign.

Let me turn to the jurisdiction of the Scottish courts. This Parliament—this Union Parliament—exists because of the Treaty of Union. Scotland has always had a separate legal system. Article XIX of the Treaty of Union between Scotland and England protects that separate legal system, including its inherent supervisory jurisdiction and the nobile officium of the Court of Session, which is a power that the Court of Session has to give remedies where otherwise there would be none. Since the modern advent of devolution by virtue of the Scotland Act 1998, the civil jurisdiction of the Scottish courts, including judicial review, has been a devolved matter and therefore properly one for Scotland’s Parliament, so I believe that the Bill is a grave intrusion of the civil jurisdiction of the Scottish courts, and that is the reason for my amendments.

The Scottish Government are considering a legislative consent motion. My amendment 34 would ensure that the Bill cannot come into force in Scotland without a legislative consent motion. My new clause 4 would ensure that, notwithstanding anything in the Bill—I like a nice notwithstanding clause, and I hope that Conservative Members who have been so excited about notwithstanding clauses will support my Scottish one—the supervisory jurisdiction and the nobile officium of the Court of Session would be preserved. In that way, I hope to ensure that asylum seekers in Scotland will still have the protection of the courts, in accordance with our constitutional tradition. Just to explain, the nobile officium of the Court of Session is a noble office or duty of Scotland’s highest court—a sort of extraordinary equitable jurisdiction by virtue of which the Court may, within limits, mitigate the strictness of the law and provide a legal remedy to people where otherwise none would exist.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee, Chair, European Scrutiny Committee 2:00, 17 January 2024

Without prejudice to the content of what the hon. and learned Lady is saying otherwise, may I simply say in relation to her notwithstanding clause that I am extremely glad that the Scottish eagle has landed?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Chair, Human Rights (Joint Committee), Chair, Human Rights (Joint Committee)

I certainly will not be supporting the other notwithstanding clauses in the Bill, but I felt that it was perhaps time that we had one that benefited Scotland for a change.

My amendments are designed to protect Scotland’s courts and constitutional tradition. They are there to ensure that asylum seekers in Scotland might still enjoy the protection of the courts from the infringement of their fundamental rights. That is what people in Scotland want, and it has been expressed repeatedly through the Scottish Parliament. I am, of course, a Scottish MP and a member of the Scottish Bar, and I am here to do what I can to protect Scotland and its legal system from the extraordinary attack on human rights and the rule of law that this Bill constitutes.

However, I am not a Scottish exceptionalist. I recognise that—as reflected in the House of Commons Library’s excellent legal briefing on the Bill, and indeed in the speech that preceded mine, by the right hon. and learned Member for Kenilworth and Southam—concerns about the impact of the Bill on the rule of law and the constitution are shared by many in England, including many lawyers. For every lawyer cited by Conservative Members in favour of the Bill and the draconian amendments to it, they will find two lawyers who disagree.

The Library briefing, which is an excellent summary of the different legal views on the Bill, concludes:

“Tension between the sovereignty of Parliament to legislate, and the role of the courts in enforcing the rule of law principle that executive bodies must exercise their powers within their statutory limits, may be tempered by restraint on both sides. If either the courts or Parliament ceased to exercise such restraint, significant constitutional uncertainty could result.”

I believe that if we pass the Bill, this Parliament will have ceased to exercise the restraint referred to there—it would be a major departure from such restraint. I predict that, if the Bill passes, we will see what might be an unprecedented constitutional challenge to an Act of the British Parliament.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

The hon. and learned Lady is making a good point about the checks and balances that prevent arbitrary power, and she is right that that is central to our constitutional settlement, but this is not the exercise of arbitrary power, because the Bill, and the amendments to it, are quite specific about their provisions. For example, in the amendments tabled by my right hon. Friend Robert Jenrick, our separation from the international obligations that I know she holds so dear is very specific to this particular legislation. That is not arbitrary—it is anything but.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Chair, Human Rights (Joint Committee), Chair, Human Rights (Joint Committee)

The Bill seeks to carve out a group of people coming to our country, or who are in our country, from the protections that the rest of us enjoy. History shows us that that sort of legislation can put a state on a pretty slippery slope. That brings me to my arguments in relation to clauses 3 and 5 stand part.

The Joint Committee on Human Rights has not yet had the chance to complete legislative scrutiny of the Bill given the speed with which it has passed through the House, so we have not as a Committee reached a concluded view on the Bill. However, before Christmas and before Second Reading, a Chair’s briefing paper referring to the legal advice that the Committee had received was published, and it is extensively referred to in the excellent legal commentary published by the House of Commons Library.

The briefing says, inter alia, that the disapplication of the Human Rights Act 1998 in clause 3 is very significant. As I indicated a moment ago in my answer to Sir John Hayes, human rights are meant to offer a fundamental level of protection for every person on the basis of their humanity alone. As our Committee has noted in a previous report, if those protections are disapplied when they cause problems for a policy goal, they lose their fundamental and universal character. Arguably, that is especially the case when they are disapplied in respect of a particular group. In this case, fundamental human rights are being disapplied in respect of migrants who come to the United Kingdom without prior permission.

Bills that disapply parts of the Human Rights Act are not unprecedented under this Government, I am sad to say. Both the Illegal Migration Act and the Victims and Prisoners Bill have sought to disapply section 3 of the Human Rights Act in respect of certain legislation. However, this Bill seeks to disapply section 6 of that Act—the obligation on public authorities to act compatibly with human rights—which has never before been attempted, even by this Government, and represents a significant inroad into human rights protections. If we pass the Bill with clause 3 in it, it will effectively mean that this Parliament is authorising public authorities to breach human rights. That is an awful long way from what this Parliament intended when it passed the Human Rights Act, and what the United Kingdom intended when it signed up to the convention.

As we heard at some length yesterday, as a result of parliamentary sovereignty, if we pass the Bill, breaching human rights would be in accordance with our domestic law. However, it would still violate the UK’s obligations under the convention, because we cannot unilaterally change what the convention says. Also, as the Bingham Centre for the Rule of Law has noted in its briefing on the Bill, if we disapply the Human Rights Act in the manner proposed, we are also breaching article 13 of the convention, which entitles people to an effective remedy.

I am afraid to say that the amendments to clause 3 tabled by the right hon. Member for Newark, who is no longer in his place, would make the situation even worse. His amendments 11 and 12 appear to extend the disapplication of the Human Rights Act to anything done under the Illegal Migration Act that relates to the removal of a person to Rwanda. That could potentially mean that the detention of people awaiting removal to Rwanda and their treatment prior to their removal would not be protected under the Human Rights Act. Is that what this Parliament really wants to legislate for?

Additionally, the right hon. Member for Newark wants to extend clause 3 to disapply section 4 of the Human Rights Act. As it stands, that clause does not disapply section 4; if the clause remains as it is when the Bill becomes law, it would be open to a court in future to declare that it is not compatible with the convention. That would be through a declaration only: it would not affect the ongoing function of the Bill, or allow removals to Rwanda to be prevented or delayed, but this Parliament and the Government would have to decide whether any changes to the law should be made. If we amend the Bill to disapply section 4 of the Human Rights Act, again, that would be something that has never been done before, and would further restrict the jurisdiction of our courts in saying to the Government and the public what their view is on the law’s compatibility with human rights.

Finally, I also believe that clause 5 should not stand part of the Bill. We have heard a lot today about Conservative Members’ concern about interim measures issued by the European Court of Human Rights. The reality is that, no matter what this legislation ends up saying, it can only affect domestic law. In respect of the ECHR in particular, the UK will remain bound by the convention as a matter of international law. Indeed, even if this Government—God forbid—were to exercise the nuclear option of withdrawing us from the convention, thereby putting us in bed with Russia and Belarus, we would remain bound for a further six months after withdrawal takes place. I hope they will bear that in mind.

At the moment, clause 5 says that only a Minister can decide whether to comply with interim measures, and that the domestic courts should ignore them. It remains to be seen what a Minister would do, but we all know that the Prime Minister has said repeatedly that he would not let a foreign court—to use his words—prevent flights taking off, which indicates that interim measures may be ignored. As I said earlier, in my intervention on the right hon. Member for Newark, interim measures are made under rule 39 of the Court’s rules of procedure. They do not form part of the text of the convention ratified by the UK, but when we ratified that convention, we signed up to the idea that the European Court of Human Rights is the body that determines its meaning, and since the 2005 case that the right hon. Member mentioned, it has held consistently that failing to comply with interim measures amounts to a breach of article 34.

Interim measures are fundamental to any court—they are issued to protect the position of an individual while their legal rights are determined. All this fuss about people in their pyjamas in the middle of the night is very silly. Judges in the United Kingdom, both in the English jurisdiction and in the Scottish jurisdiction, are regularly got out of their bed in the middle of the night to issue interim injunctions in England and interim interdicts in Scotland. It is a standard part of any legal system, and many of the concerns that Conservative Members have expressed about those interim measures have now been addressed by the Court in the reforms it is proposing.

Any decision of a Minister not to comply with an interim measure would be inconsistent with our obligations under the ECHR. That means that if we let clause 5 stand part of the Bill, we will expressly authorise British Government Ministers to act in breach of international law. That is the reality, and I note that according to The Times, that is the advice that has reportedly been given to the Government by the Attorney General and by the Minister, Michael Tomlinson, when he was Solicitor General. That does not surprise me at all; it should not surprise anyone, because any legal undergraduate would be able to tell them that. As such, in so far as amendments 23 to 25 state that interim measures are not binding, that is inaccurate as a matter of law, and we must understand that they would put the UK directly in conflict with our international legal obligations.

Madam Chair, I realise that I have taken up a little bit more time than I had intended, but I hope the amendments and new clause that I have spoken to would go some way towards ameliorating the Bill. However, even if they were to be passed, I would certainly vote against it.

Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee

It is a pleasure to follow Joanna Cherry and my right hon. and learned Friend Sir Jeremy Wright. Although I will not be supporting the hon. and learned Lady’s amendments, I have great respect for the intellectual rigour that she brought on Scots law and its application in this case. I say the same about the points made by my right hon. and learned Friend in relation to his amendments 54 and 55. I hope the Minister will think seriously about how we deal with that issue—I am sure he will, because serious points have been raised. In a nutshell, I agree with the proposition that while Parliament can, of course, legislate to do whatever it likes in domestic law, the simple fact is that one cannot legislate away international law obligations or treaty obligations, and it would be misleading to pretend otherwise.

I now turn to the amendments tabled by my right hon. Friend Robert Jenrick. I am sorry that he is not in his place, because I have to say that, with every respect, I profoundly differ from his characterisation of pyjama injunctions by a foreign court. Respectfully, I would argue that that characterisation is both inaccurate and rather unworthy. As was observed by the hon. and learned Member for Edinburgh South West, it is perfectly normal for interim injunctions to be issued at difficult hours when the test for them is met, so we should not say that that is unusual. Arguments can be legitimately made about the way in which the rule 39 procedure in the Strasbourg Court works, but let us make them on the basis of an accurate construction of what the Court is about, rather than otherwise.

Photo of Danny Kruger Danny Kruger Conservative, Devizes

I have great respect for the argument that my hon. Friend is making, and I defer to his experience and knowledge on this issue. I am genuinely interested in his view: he has described a judge in the UK issuing an injunction late at night in the event of what, in normal circumstances, would be an individual situation. Does he really think it is comparable to describe in the same terms the act of a Court that is genuinely in another country and a judge who is anonymous and does not publish the rationale for their opinion, which calls a halt—with the support of the Government, it must be said—to the policy of the British Government, enacting a law passed in Parliament? Surely there is a difference, both of degree and of nature, between the two cases.

Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee

I think my hon. Friend needs to bear in mind that the application that was made to Strasbourg was also about the circumstances of an individual case, so that is no different.

There is a legitimate criticism—one that I have voiced in the past—about the procedure adopted in Strasbourg for these applications in two areas: first, the anonymity of the judge, and secondly, the failure to state reasons. From our point of view, that would not be acceptable, but the answer is not to throw out the whole of the judicial and treaty baby with the bathwater. Thanks to the Brighton declaration that was signed by my noble and learned Friend Lord Clarke of Nottingham, it is possible to make reforms following dialogue between member states, the Council of Ministers and the judiciary of the Court. I am pleased to say that after pressure from the United Kingdom—perfectly properly—the Court itself has indicated that it will to consult on reforms to its procedure, which can only be a good thing. That is what I think the balanced position is on that issue.

Photo of Robert Buckland Robert Buckland Chair, Northern Ireland Affairs Committee, Chair, Northern Ireland Affairs Committee

In fact, further than that, there are already proposed reforms to the interim procedure, which will come into place this year and crucially will remove the anonymity provisions and allow contracting parties such as the UK to make the argument, as I believe applies in this case, that there is not an imminent risk of irreparable damage. We can fly people back from Rwanda, and that is the argument we need to keep making.

Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee

My right hon. and learned Friend is entirely correct, and he and I would probably have very happily argued the UK’s case in Strasbourg on those grounds, so let us be realistic about what we are fighting against. With respect, a bit of an Aunt Sally has been set up because steps are already being taken to deal with the objectionable matters relating to rule 39s, but the principle of them is not itself objectionable.

Secondly, with respect, the characterisation of a “foreign court” is not helpful in these circumstances, because it implies something alien, which it is not the case for international law as a concept or for the Court itself. The fact that it happens to meet in a different place from the UK is inevitable because it has to meet somewhere. We should bear in mind that not only was the UK one of the driving powers behind the creation of the convention in the first place, behind the Court itself and behind much of the jurisprudence of the Court, but the UK does actually have shared ownership of the Court, along with all the other member states.

That is demonstrated not just in the treaty, but in practical ways. For example, the British members of the Parliamentary Assembly of the Council of Europe—Members of this House and the other place—have a role in the appointment of the judges of the Court. My right hon. Friend Sir Edward Leigh and I served at one time on the sub-committee of the Assembly that dealt with that process, and I like to think that we did so diligently, so there is involvement in that process. A British judge always sits on the Court and is a member of the Court. Judge Tim Eicke, the current judge, is a very distinguished international lawyer, and we are very lucky to have him. Two of the recent registrars of the Court, who run its administration, have been British lawyers, and British lawyers appear regularly in cases before the Court.

This is not an alien body; it is a Court of which we have joint ownership. It is our Court, along with that of all the other member states of the convention, and it is wrong to mischaracterise it as something alien. Certainly, in all international matters, as my right hon. and learned Friend the Member for Kenilworth and Southam said, it operates on a different plane, but the tone of comments about its alienness is, with respect, both inaccurate and somewhat offensive. It is also unnecessary for the purposes of this Bill anyway, and that is the point I want to come on to in relation to rule 39.

The amendments tabled by my right hon. Friend the Member for Newark are otiose. They are unnecessary and, frankly, would make a difficult situation worse. As a matter of law, an interim measure under rule 39 is an indication made to the Government of the member state. It is not made to the courts of the member state; it is conveyed to the Government of the member state concerned. Therefore, it is for the members of the Government of the member state—the Ministers—to decide what to do about it.

I personally take the view that we should be very loth indeed to ignore the findings of the Court on an interim matter. As the hon. and learned Member for Edinburgh South West rightly said, it runs the risk of putting us in breach of our international law obligation in that regard. However, the truth is that it is a political decision that the Ministers can take. So what the Bill in its current formulation states is actually no more than a statement of the law as it stands, and we probably do not need clause 5 in the Bill. I am not going to die in a ditch over that, because it is simply stating what the law is already, but, equally, there is absolutely no need for the amendments from my right hon. Friend the Member for Newark to put bells and whistles on otioseness, if I can put it that way.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I am loth to interrupt my hon. Friend as he is describing not so much the separation of powers as the desiccation of power. However, on the specific point he made about his reticence or reluctance not to abide by the advice of the Court—he said Ministers could do that, but he would not—would he on that basis not have done what the noble Lord Cameron did as Prime Minister when he resisted the overtures from the Court to give prisoners votes?

Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee

I would make two points about that. In fact, I supported the noble Lord Cameron in that regard because it was a political decision. It is also worth looking at the practical politics. Although we were for a period of time at variance with the Court, no harm was done to the polity of the United Kingdom in that regard. No harm was done to the interests of the United Kingdom and no terrible international consequence for us flowed from it. I think the Court got it wrong on that occasion, and one of the problems is that there is no appeal system in the Strasbourg Court, so we have to wait until some future decision goes a different way. I think many of us take the view that, in reality, the Court as currently constituted in Strasbourg—it is perhaps less activist, if I may say so, than its predecessors—might well have found differently in the prisoner voting case. However, the fact was that UK Ministers took the decision, and they did what was right in the UK, which was supported by those in all parts of the House, and no harm was done. So the idea that some terrible consequence will flow for the UK because of the ability to seek rule 39 interim measures is just misplaced.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

Would my hon. Friend reflect on this fact about prisoner voting? I discussed the matter with the noble Lord Cameron when he was Prime Minister at the time, but it was regarded by the noble Lord Clarke of Nottingham as a “particular political policy”—I think those were the words he used. How would my hon. Friend describe the issue of illegal migration? Would he not regard that as a particular but very important political policy?

Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee

That is why, as it happens, I will not vote against this Bill, because although I have some misgivings, there is a legitimate concern that needs to be dealt with in relation to illegal boats. However, the simple fact is that that is not a reason for the blanket derogation, or the blanket removal of ECHR protections, that is proposed in a series of amendments. That is the difference. My hon. Friend and I are at one, but sometimes a mixture of politics and law arises in these matters. The point I am making is that, frankly, if any Government want to take the political risk of ignoring an interim measure, they can do so under our law as it stands. It happens that they effectively did so on prisoner voting, so they could do that now if they wanted to. I am not going to advise on that, because one has to be very wary not to come to views that may very often not be fact-specific when individual decisions are made.

Photo of Jeremy Wright Jeremy Wright Conservative, Kenilworth and Southam

I do not want to prolong the discussion about prisoner voting, but like my hon. Friend Sir William Cash, I remember having conversations about it inside Government. I think it would be fairer to describe the situation as one in which the UK did not at any point refuse to comply with the judgment, would it not? We have perhaps adopted a more Augustinian approach to compliance: we just have not quite got around to it yet.

Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee

I think that is right. As I recall, the UK Government put a motion before this House, which the House rejected. So we had a perfectly legitimate legal argument that we had taken steps to comply, and Parliament, as it was entitled to, decided otherwise. That is why the whole of my argument with the amendments from my right hon. Friend the Member for Newark is that they are an Aunt Sally—a complete red herring compared with the real issues we are concerned with—and I urge hon. Members on both sides of the Committee to reject them.

Finally, I had misgivings about this Bill, and I spoke about that on Second Reading. I said that it stayed acceptable—just—and I maintain that position. My right hon. Friend quoted the noble Lord Sandhurst, a very distinguished lawyer in the other place. I should say that he is a personal friend of mine. The noble Lord Sandhurst is chair of the research committee of the Society of Conservative Lawyers, and I happen to chair the executive committee of the society. Lord Sandhurst and Harry Gillow, a fellow member of the society, published a very useful pamphlet about the impact of this Bill, and they have updated it in the light of these amendments. Their conclusion, with respect, is that

“the Bill goes as far as reasonably possible without risking collapse of the Rwanda scheme as a whole”.

They go on to say in their pamphlet that the Bill as drafted represents the best chance of success for the migration and economic development partnership with Rwanda. So they are on the same side of the argument as me and say that the amendments proposed by my right hon. Friend the Member for Newark take it over the line in terms of being able to deliver the partnership scheme and risk collapsing the whole scheme. It was ironic that my right hon. Friend talked about blowing up the Bill because the truth is that his amendments will blow up the deal with Rwanda, because the Rwandans have made it abundantly clear that anything that breaches international law will be unacceptable to them and they would withdraw from the agreement.

Not only are the proposed amendments legally unsound and otiose, then, but they are ridiculously bad politics as well because they would defeat the objective of those who want to see people being moved to Rwanda in order to deter the boats. So on both legal and political grounds I urge the Committee to reject the amendments and leave things as they stand.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence) 2:30, 17 January 2024

It is a pleasure to follow Sir Robert Neill, Chair of the Justice Committee. He said that at times we will see a collision between, or an interface with, politics and the law, and I hope that what arises from my contribution is that there is a third element, which is principle.

Throughout the passage of this Bill, and indeed some of the precursors to it, we have advanced a number of principled positions, one of which challenges the basis of the legal aspiration contained in the Bill, while another rightly makes the challenge that it does not matter how hard some might suggest that this is the most robust piece of legislation if it does not do what it is intended to do and is not going to work, and that it is an unprincipled place to be with the British electorate to suggest that all these steps are in earnest and have some virtue while knowing that they are inconsistent and will not work. I made those points during the passage of the Nationality and Borders Act 2022, and Ministers on the Front Bench at the time told me that I was entirely wrong, that there was no need to strengthen the provisions and that that Bill would do what they said it would. Yet now I hear, throughout discussions on this Bill and in this Committee, the very same people who then occupied the Front Bench adopting the same arguments that we deployed for the Nationality and Borders Bill.

I still find it thoroughly inconsistent in the context of this Bill that our Government have reached the position where they have an agreement with Rwanda that also involves our country accepting refugees from Rwanda, which is therefore a country deemed capable of producing refugees. It is incongruous to me that a country deemed safe by this Parliament should be capable of producing refugees from that very same country. I have not heard a robust argument as to how that is not an inconsistent position.

Photo of Michael Tomlinson Michael Tomlinson Minister of State (Minister for Illegal Migration)

I am grateful to the hon. Gentleman for giving way and giving me a chance to put him right. I offer the example of the transit mechanism that is in place, whereby Rwanda is already hosting refugees from Libya—Rwanda, in its generosity and safety, is hosting hundreds of thousands of refugees. That is how.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence)

If the Minister is prepared to say that the only refugees who can come to the United Kingdom from Rwanda are those who have been produced as refugees from other countries, that is an absolutely fair point, but I do not think that is the point he is making. I am very happy to let him intervene again but I genuinely do not think that is the point he is making.

The point I am making is that it is entirely inconsistent to say on the one hand that we will accept refugees from a country and on the other hand to deem that country as safe. I accept our right to do it, however, and I do not quibble with the Government’s aspiration that Rwanda is a safe country. I do not quibble with that; I just say that there is a complete juxtaposition between on the one hand saying it is safe and on the other accepting refugees from that very same country.

I recognise the nature of Committee stage, but I make the point again to the shadow Minister that this is not about his valiant opposition in Committee or on Third Reading, or what passed on Second Reading; it is about the Labour party’s opposition on this Bill, which I have no doubt will fold in the other place. The political choice will be the Labour party’s to make; there is no second Session or additional Session of this Parliament. There will be no Parliament Act available to pass the Bill and it is going to be tortured in the other place. The Bill will be tortured in the other place and the only way it will emerge or emanate from this Parliament is if a political calculation is made by the Labour party that there is too much political cost in opposition to the Bill and they draw stumps and allow it to pass. I reiterate that point; I am saying it very clearly now and I suspect that in a number of months’ time the point that is being ignored today will become quite acute in our political discourse.

Photo of Stephen Kinnock Stephen Kinnock Shadow Minister (Home Office) (Immigration)

I apologise if I did not fully understand the hon. Gentleman’s point in his question to me when I was making my remarks. It was specifically about the other place. What I would say to him is that Labour Members of the other place will give this Bill the scrutiny that it deserves and will hold the Government to account. The Illegal Migration Act 2023 ended up going through and getting Royal Assent in spite of very severe and serious reservations, but of course we recognise not only that in the other place we have the duty to scrutinise but that we are responsible for ensuring the proper functioning of Parliament across the board. I say to the hon. Gentleman that I do not think this Bill will be treated in any way differently from any other piece of legislation that would go to the other place, at least from the point of view of my colleagues there.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence)

I am glad to accept that intervention, and the shadow Minister has made his point and I have made my point. I suspect we will find as much safety in the point that has just been made as in that of those who stand bullishly and say that this is the strongest, most robust piece of legislation ever, irrespective of whether it works. I just put that on the record.

As Members will be aware from Second Reading, we have concerns about the operability of the Bill in the light of the UK’s withdrawal from the European Union and the legislative framework that surrounds that relationship. That is why our new clause 3 is a notwithstanding clause. I know that we have had some humour around notwithstanding clauses from Joanna Cherry, but that notwithstanding clause is there because we have concerns, in contradiction to the Government’s position, that the claims that have been made in this House and the position that the Government have deployed are not sustainable legally.

Our amendment states:

“The provisions of this Act shall have effect in Northern Ireland, notwithstanding Section 7A of the European Union (Withdrawal) Act 2018”,

amended in 2020. That is important from a principled perspective as a Unionist and from a practical perspective as a Member of this Parliament who believes that our immigration policy applies equally across the United Kingdom—it always has applied equally across the United Kingdom. The worry is that the Government are blindly ignoring our concerns and allowing a situation to develop that will cause a fracture in the immigration policy, which until this point has applied equally across the United Kingdom.

I have engaged with the Minister on this issue and I am grateful to him for both making the time available and the courtesy with which he always approaches these issues. Colleagues will recall that we raised this issue on Second Reading and the Minister gave a commitment, which fundamentally comes in two parts: that the Government have never accepted that the rights chapter of the Belfast agreement engages immigration policy, and furthermore that the Government have in the past robustly defended the position that the rights chapter of the Belfast agreement does not engage immigration policy and have won. They have advanced that argument in court and have won. The argument that the Government are putting forward is predicated on article 2 of the withdrawal agreement—that there be “no diminution of rights” for the people of Northern Ireland whenever the United Kingdom leaves the European Union. As a consequence, and given that they say the rights chapter does not apply to immigration, they say there is no diminution of rights, so this situation is not captured by article 2. We engaged with the Government—

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence)

I will not take an intervention at this stage, because there are a few elements that I want to get out clearly and cleanly. I will then be happy to give way.

The Minister put forward his point, and we exchanged positions on Second Reading about the potential of an updated legal note. I have to say in all candour that the Minister and the Government have been forthcoming in more formally addressing this point in terms of article 2 of the European Union withdrawal agreement alone, and not article 7.

Let us be clear: we as a national Parliament are considering on a national basis our national immigration policy, and our amendment is intended to elicit a response from the Government. Eyes wide open, they could choose to ignore us at this point, to dismiss the concerns that have been raised and ultimately leave it to the courts to decide and the judiciary to determine whether there is cause for concern. Or they could take the simple step on immigration grounds alone to disapply section 7A of the European Union (Withdrawal) Act 2018. That is the choice.

Yesterday I shared with the Minister—I share it with the Committee today—the details of a High Court case in Belfast. It was an application for judicial review by Aman Angesom, and it was interesting reading. Paragraph 94 of that judgment states clearly:

“The combined effect of section 7A of the European Union (Withdrawal) Act 2018…and Article 4 of the Protocol limits the effects of section 5(4) and (5) of the EUWA 2018 and Schedule 1, para 3 of the same Act which restrict the use to which the Charter of Fundamental Rights and EU General Principles may be relied on after the UK’s exit. Thus, the Charter of Fundamental Rights remains enforceable in Northern Ireland and falls within the ambit of Article 2(1) of the Protocol.”

Contained within the charter of fundamental rights is article 18, the right to asylum. Everything we have seen from the Government has engaged the discussion around the rights chapter of the Belfast agreement. It has not engaged the consideration that was resolved and shared in paragraph 94 of that Belfast High Court judgment, which has a completely separate legal construction for the Government’s ambition for how this Rwanda Bill will not apply to Northern Ireland.

The Minister has said clearly on the Floor of the House that the Bill will apply in full in Northern Ireland in the same way as it does in the rest of the United Kingdom. New clause 3 is our attempt, first, to get the Government to rule out the concerns that have been raised by agreeing it. Then, if they should not do so, they should at least articulate their intention, their position, what they believe to be the case, why they believe that interpretation and why the judgment from Belfast is wrong. I raise those issues on a number of levels: as a parliamentary spokesperson on home affairs and somebody who has engaged on immigration issues for a while, as someone who has voted against previous attempts because I do not believe they are the right approach, and as someone who voted against the Bill on Second Reading because I still do not believe it is the right approach.

I also raise those things as a representative for Belfast. Believe it or not—I say this with no alarm and no theatrics but as a matter of record—House of Commons Library figures from September point out that, across the entire United Kingdom, Belfast has the second-highest number of asylum seekers, housed within our city. We have 78 asylum seekers for every 10,000 of the city’s population. I am not being alarmist about that and I will not over-egg it; I am just making the point that these are important issues, and the unity of our immigration system is important. The protection of our borders is an important issue in immigration terms.

Heaven knows, we have had enough difficulty around the creation of a trade border in the Irish sea that we are having to deal with. We cannot casually, or mistakenly, or through misplaced hope, walk ourselves into the creation of an immigration sea border in the Irish sea because the Government fail to accept the strength of feeling on this issue, the cause for concern surrounding it and the legal and judicial opinion that has been given that leans into it. This is our opportunity to put it right, and we should take it.

I am about to finish, but in fairness I did indicate to Stella Creasy that I would give way, and I mean no discourtesy, so I will.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow 2:45, 17 January 2024

I appreciate the case the hon. Gentleman is making. My concern is that the Angesom judgment—I looked it up after he and I talked about it—states:

“The applicant and respondent both agree that the rights, safeguards and equality of opportunity enshrined in Strand Three of the GFA do not exclude asylum seekers.”

The Home Office, which brought the case, accepts that the Good Friday agreement extends to refugees in Northern Ireland, yet with this piece of legislation the Government are seeking to exempt them from those rights and therefore undermine the Good Friday agreement. I just wanted to clarify my reading of the ruling he mentioned.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence)

The hon. Lady is entirely right in the quote that she shares. It is fair to say that the Government won that case. We therefore did not see the Government—indeed, they did not have any rationale to do so—taking forward an appeal to defend some of the points that they may well have chosen to defend, but she highlights a frailty in the position, if the Home Office is not accepting a position that it has defended in other cases by saying that the rights chapter is not engaged. That is a frailty of the Government’s position, and that is why, in fairness, the hon. Lady has tabled her own amendment. It is not as fatal as our new clause 3, in terms of the notwithstanding provisions, but it is at least asking the Government not to proceed with the Bill until they are in the firm position to publish a position. This House has agreed that that is the basis upon which we should proceed.

I have been in this place for almost nine years. There are many occasions when this House has agreed to proceed in the face of what I believe to be well-grounded, politically supported and principled decisions. It is not an amendment I take comfort from, but I very much look forward to hearing what the Minister has to say, given the day that this is and the potential for Third Reading this evening.

Photo of Robert Buckland Robert Buckland Chair, Northern Ireland Affairs Committee, Chair, Northern Ireland Affairs Committee

I spoke yesterday to the amendments that stand in my name and are potentially subject to Division later, so I will not trouble the Committee on that. My amendment 58 would amend clause 7 to preserve a small element of clause 1—namely, the definition of a safe country. I listened carefully to the reasoned arguments of my right hon. and learned Friend Sir Jeremy Wright, whose position is similar to mine, except that he takes exception to parts of clause 1 that I want to retain. I would rather get rid of the rest of clause 1, because it is bad lawmaking, but I will come back to that in a moment.

I might have an answer to my right hon. and learned Friend’s sensible question of why the definition of a safe country in clause 1(5)(b)(ii) contains reference to the other country’s “obligations under international law.” It is simple: that has to flow, because unlike many people’s understanding of this scheme, it is not about the offshoring of UK processing, but the wholesale handing to another country of the determination of applications. That is why the measure is in the Bill. I hope that gives him some satisfaction. It is why, in considering my amendments, I decided to retain the entirety of subparagraph (ii) by moving it to the interpretive clauses towards the back end of the Bill. It was the only part of clause 1 that I could see had any function whatsoever.

Photo of Jeremy Wright Jeremy Wright Conservative, Kenilworth and Southam

I understand the argument that my right hon. and learned Friend is making, and I will not be dogmatic about the approach that I set out earlier. Is there not a danger, if we retain the language that he is referring to, that we open up another channel of legal challenge, which is exactly what the Government are seeking to avoid? If the question becomes, “Is Rwanda in compliance with its international law responsibilities?”, that is something else that someone may choose to argue if they wish to resist their transfer to Rwanda.

Photo of Robert Buckland Robert Buckland Chair, Northern Ireland Affairs Committee, Chair, Northern Ireland Affairs Committee

My right hon. and learned Friend is absolutely right. I think I have said outside the Chamber that, when it comes to the passage of statute, the principle of “less is more” is not only fundamentally Conservative, but fundamental to good lawmaking. Although the Bill does not weigh in at a heavy number of clauses—it has a mere 10—we as parliamentarians have a continuing duty to demonstrate economy. Any clause—in this case, clause 1—that is titled “Introduction” should give us all pause for thought, if not breaking out into a cold sweat.

It seems to me that the language in clauses 1 to 6 would belong better in a White Paper or an accompanying policy document. We know what the purpose of the Bill is. We have read the treaty, and most of us will have read the policy document that accompanied the Bill’s publication—that is where such language belongs, not in a Bill. That is not just because I have a tidy and ordered mind—well, I try—but because of the very point made by my right hon. and learned Friend: the more words we put into legislation, the more opportunity we give for their litigation and justiciability, and the arguments that will then go before the court about fundamental issues at a high level that, in my view, really should not be the province of litigation.

It is for the contracting parties to a treaty to agree its terms and sign the document, and then either directly, as in the case of Rwanda or, in our dualist system, via the Constitutional Reform and Governance Act 2010—the CRaG procedure that is ongoing—the treaty will come into force. So, to use one of my favourite wartime adages, I must ask my hon. and learned Friend the Minister, for whom I have great esteem: why is our journey really necessary?

In my view, clause 1 needs to go, save for the retention of clause 5. Although we will have a stand-part vote anyway, I tabled amendment 27 just to emphasise my extreme distaste for clause 1. It is a distaste based on the fear that this somehow becomes the norm and we start to see legislation of this nature proliferate. Let us start with clause 2, because that is what the Bill is all about: the safety of the Republic of Rwanda. That is where it should begin. What clause 2 says is clear, and I spoke to it yesterday.

I turn now to clause 3, which throws up a series of interesting questions. I am not a particular fan of section 3 of the Human Rights Act, because I never liked the read-down provisions, which draw the justices—the Court of Appeal and the Supreme Court in particular—into a province where they are acting almost as a constitutional court. We have seen it happen: the read-down provisions where judges in effect pass and reinterpret the will of Parliament. It is a sticky and dangerous place for the Court to go, and I do not like it. If I had had the opportunity and we had done what we said we would do in the manifesto, which I helped to write, we would have updated the Human Rights Act by now. We could have got rid of section 3, so we would not have needed to refer to it in this ad hoc way in the Bill. It was a horrible echo of that Bill of Rights, which happily never saw the light of day—it did not even have a Second Reading, thank goodness—and perhaps some of what I am saying in the context of these amendments and the stand part debates is an echo of my deep distaste for aspects of that failed legislation.

Why have we got clause 3 in the Bill? I can see what the Government want to do—they want to avoid arguments relating to the Human Rights Act—but I am afraid that they cannot get out of jail. As people have an individual right to petition to Strasbourg anyway—I entirely agree with my hon. Friend Sir Robert Neill that we helped to set up that Court and have direct ownership of it—we are in effect sending the arguments to that so-called foreign Court. Of course, the danger in allowing petitions to go to Strasbourg without any airing of the arguments in domestic courts is that we do not really get that margin of appreciation evidence that is so crucial for the Strasbourg Court.

I do get frustrated by inelegant, inaccurate comparisons between the Luxembourg Court—the Court of Justice of the European Union—and the Strasbourg Court, which is a very different place. We have a much wider margin of appreciation, much bigger discretion and much more room in which to make arguments of interpretation and context—indeed, political context as well—about the way in which we do things in this country. Perhaps it is no coincidence that the number of times the United Kingdom is found to be in breach of the convention is vanishingly small.

We have heard about prisoner rights—more cases, anybody? We might remember the Abu Qatada case, which is on all fours with what we are dealing with here. We solved the problem by making sure that Jordan had a fair trial system. If I am right, I think Abu Qatada was tried and acquitted in Jordan, but the point was made. That is the point on all fours with this Bill: if we are to rely on the processes of another country, getting them right in order to be compliant seems to be the best way forward. That is why the Government’s treaty approach is to be commended. So, no, I do not see the need for clause 3—get rid of it. We will end up with these arguments whether we like it or not.

I turn to clause 5, which is another clause that, in the words of my hon. Friends, is just unnecessary. I do not see how interim measures equate in any way to the binding nature of final judgments, which article 46 of the convention draws us to, or indeed anything different from the approach that we take to interim injunctions in domestic cases that High Court judges, county court judges—judges of all shapes and sizes—will be enjoined to create or refuse on ex parte or inter partes applications.

In the context of the debate about interim measures, it is important to pray in aid the work done in the plenary sessions of the European Court of Human Rights last year. The rules will be changed, with that coming into effect in 2024. May I ask my hon. and learned Friend the Minister to work with colleagues in the Attorney General’s Office—his former Department—and indeed the Lord Chancellor, to ensure that the Council of Europe and the plenary sessions of the Court get on with implementing these changes? The changes to interim measures are really important.

First, the limiting of the granting of interim measures to “exceptional circumstances”—those words do not currently exist in the definition of rule 39—will change the ball game at a stroke. Secondly, there is the end to anonymity for judges, which is a proposal that will be enacted. Finally, and importantly, there is the opportunity for parties to the proceedings to request the court to reconsider its decision. So the United Kingdom will have an opportunity to say, “No, there is no imminent risk of irreparable damage here. We can fly people back from Rwanda if there is a problem.” In any event, because of the measures that we are taking in the Bill, we will not be sending people who are vulnerable or at risk—those who might be terminally ill, pregnant or have some serious condition, whatever it might be—to Rwanda in the first place. We have got the arguments to deal with rule 39 and we should have the self-confidence and the ability to make our case. I think that the reforms to rule 39 will be significant.

I am delighted to have followed Gavin Robinson, who made a thoughtful contribution. He and I have had some differences of opinion about things in recent days, but he always couches his arguments in a respectful way, and for that I thank him.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

First, does my right hon. and learned Friend understand that there are those who argue that the rule 39 indications are being used by the Strasbourg Court in a way that is not binding? Has he heard that argument, and does he agree with it? Secondly, with regard to how people react to the manner in which the proposed reforms are being done, can he speak with authority—not that he does not have his own authority—by quoting to us any specific document that demonstrates that the whole thing is now more or less sewn up?

Photo of Robert Buckland Robert Buckland Chair, Northern Ireland Affairs Committee, Chair, Northern Ireland Affairs Committee

I have sources that I was looking at to research this speech. I will send my hon. Friend the links that I have to the European Court web pages that deal with several meetings held in the summer and November last year where the proposals were agreed. Now, the question is implementation in 2024. The Court has not been specific about precisely when these reforms will be brought in. Therefore, now is our opportunity not just as a Parliament but as a Government, together with other member states, to say, “Look, these are welcome. Can you please bring them in?” Hopefully, it will bring them in a way that dovetails with the eventual coming into force of these provisions. My hon. Friend makes an important point, and I will send that information to him.

On the binding nature, I made the point that these are not final judgments, so they are not binding in the sense that article 46 bites, and therefore we have a prisoner voting scenario. However, procedurally they have to be abided by, since as a matter of procedure in our own domestic courts, if an injunction is passed, it will be potentially a contempt of that court for any party to those proceedings to do something that would defeat the injunction. My hon. Friend will know that. For example, if there is an injunction to prevent the removal of a particular asset from the jurisdiction, removing it would frustrate the whole purpose of litigation and would be contempt of court. My hon. Friend gets the point.

That is why it is not necessary to add clause 5. We all know the arguments. If we do add it, we get the unfortunate consequence of having to consider the ministerial code and the civil service code. I agree with my hon. Friend—I took the view at the time of the United Kingdom Internal Markets Act 2020 that the drafting of part 3, which never became law, was not a breach of the ministerial code or the civil service code. It was entirely in order, and we were able to do that. That is when I parted company with my good friend Sir Jonathan Jones, the former Treasury solicitor. I did not agree with him about that. I know my hon. Friend would approve of that.

There are other parts of part 3 of the 2020 Act that we need to bring forward in legislation to help our colleagues such as the hon. Member for Belfast East, who nods sagely from a sedentary position. We need to do that. We brought forward that legislation and the Northern Ireland Protocol Bill as a way of leveraging the negotiations, and we were successful. We managed to sort that out through the joint committee between my right hon. Friend Michael Gove and Maroš Šefčovič, which came to a conclusion on the protocol. From the Protocol Bill we have the Windsor framework. We have different views about that, but that Bill was not necessary. That is why I say in all candour to my hon. and learned Friend the Minister that we are using the Bill not as a way to leverage negotiation but as a direct enactment of policy. That is why we have to be very careful about it.

I now come to the points made by the hon. Member for Belfast East and the intervention from Stella Creasy. We cannot ignore the Northern Ireland dimension. We have seen two very good, nuanced arguments, first about the interaction between the EU charter of fundamental rights and Northern Ireland law, and secondly about the position of the European convention itself and its centrality to the Belfast/Good Friday agreement, which I think we all agree is a fact, whatever our views.

To come back to the point about the EU dimension, the Supreme Court was clear in its judgment about the Rwandan applications relating to cases before it, that there was no role for retained EU law. What the Court said was very clear. The European Union (Withdrawal) Act 2018 was clear that retained EU law no longer applied to the procedures directive, which was the particular directive that we were talking about. However, the hon. Member for Belfast East is right to sound the alarm bells to make sure that we do not inadvertently end up in a position where our immigration law is divided or complicated by the EU law factor, which is undeniably an issue in Northern Ireland law.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence) 3:00, 17 January 2024

I am grateful to the right hon. and learned Member for his contribution. He would accept that the arguments around the particularities of Northern Ireland, should an application come from Northern Ireland, were not considered by the Supreme Court in detail. I am not saying that I am right, but for as long as we have an undetermined position of the Government on one hand juxtaposed with some advocates in Northern Ireland on the other, we need to get it settled. We need to be sure about the position. That is my point.

Photo of Robert Buckland Robert Buckland Chair, Northern Ireland Affairs Committee, Chair, Northern Ireland Affairs Committee

The hon. Gentleman makes a powerful point. I hope that is taken up in the other place as well. As Chair of the Northern Ireland Affairs Committee, I want to discuss that further with him and with Ministers in the Home Office or the Northern Ireland Office—directly with the Home Office would probably be the best way forward.

That opens up the point made by Joanna Cherry about the interaction of Scots law with all this. She is not wrong to remind us that Scots law looks at parliamentary sovereignty differently from the law of England and Wales. We cannot get around that. However, I would qualify her remarks by saying that that is overcome by having a United Kingdom Supreme Court, which has at the moment two very distinguished Scots lawyers, in the form of the president and vice-president, who understand these principles deeply. At any time, the composition of that Court will include senior Scots lawyers, and it also has a senior judge from Northern Ireland, Lord Stephens.

The whole function of the Supreme Court is to bring together the slightly differing concepts of constitutional law that undoubtedly exist in our jurisdictions and strike the right balance, based on restraint—we come back to that word again. I will not labour the point I made yesterday, but my hon. and learned Friend the Minister knows that he is walking a tightrope to get this legislation right. Anything that smacks of a lack of restraint, such as the amendments tabled by hon. Friends—I said obliging things yesterday and I will repeat them today—does not follow that sense of restraint and balance.

It is about the risk of an imbalance not just between the courts of England and Wales and this Parliament, but between the differing jurisdictions of the United Kingdom. That should give us all pause for thought, particularly those of us deeply committed to our Union and who believe in this United Kingdom. I am not saying that my hon. Friends are deliberately trying to undermine that, but I am sounding a word of warning about treading too heavily down this path of exceptionalism and going too far in normalising what were the exceptional circumstances of withdrawal from the EU. I should know about that because I sat on that Front Bench making the case for many of the provisions in the European Union (Withdrawal) Act that are cited by my hon. Friend Sir William Cash and others. Those were exceptional times.

I know that this is an exceptional global challenge, but before I conclude my remarks, I will simply say that we need to tread carefully. If we do not do so, in trying to deal with an external problem we will create internal, constitutional and legal problems of our own. I do not think that any self-respecting Conservative Government would want to do that, and no self-respecting Parliament would want to follow that. For those reasons, I urge right hon. and hon. Members to reject many of the amendments that complicate the Bill, and to follow the maxim that less is more.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

It is a pleasure to follow Sir Robert Buckland and many of the colleagues sat next to him who have brought an immense level of legal expertise to their concerns about the Bill. Let me try to offer something different, as somebody who is not legally qualified: a lay person’s view or perspective on what the Bill is doing, in particular why I tabled and will speak to amendment 9, and why I support the amendments in the name of my Front Bench colleagues.

This is not about the R of refugees or even the R of Rwanda; it is about the R of rights—the rights we enjoy that protect those freedoms and liberties that so many of us fight for, are passionate about, and believe are intrinsic to a good life. The Government state that the Bill is:

“a clear statement of Parliament’s view that Rwanda is safe, ‘notwithstanding’ all specified domestic legislation and the common law, and any alternative interpretation of international law including customary international law”.

For those of us who are not qualified, the word “notwithstanding” is doing an awful lot of work to justify the diminution of rights for people in our country and the concept that somehow international law does not protect us.

So much of the anger we have heard about the idea of a foreign court has come from it being about the European Court of Human Rights: that it is an affront to our democracy that that organisation is part of protecting those rights, liberties and freedoms on which we depend. How dare Winston Churchill sign us up to such a thing? How dare he believe that working with other countries was the way to protect those rights? As he said:

“In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law.”

The scoundrel. What sort of rights was he trying to protect? What sort of abuses by the state did he dare to think we might need a court to uphold for us? The right to family life? A travesty, surely. The right to privacy? I mean, goodness me, what a terrible thing to be concerned about. The right to freedom from torture or the right to liberty, or even the right to freedom of thought? Well, no wonder we need to look at all this again. How terrible those things must sound to those of us who are not legally qualified and who cannot see the rub there.

Let me to try think through a real world example of why those rights might be upheld by a third party. One could think of somebody, perhaps a Member of this House who did not have the respect and courtesy for other people speaking in this debate to even stay and listen to them shortly after he had spoken; somebody who thought that the rules did not apply to him, that the treatment of others was not something that mattered and who perhaps was far too busy worrying about his social media account. The Chair would want to hold him to account, and rightly so. Goodness, many of us would think he might need legal representation for what could happen next. He would want his day in court. He might not want to be in the Chamber when we were talking about those very issues. He might be concerned about the idea of a judge and jury existing in the same person. The very principles that led to setting up the European Court of Human Rights are ones that we all feel every single day, because it does not just defend those basic things like a right to family life or the right to privacy, it also defends a process by which those rights are upheld. Even if the Chair wanted to take somebody to task for not following the rules in this place, they might at least be entitled to a fair hearing or a fair trial for what they had done.

Yet what the Bill does is remove that concept of a fair hearing from those people in our country who are often some of the most vulnerable: people fleeing torture and persecution. They want to uphold Government Ministers as judge and jury, and it does not even align with their own data on how many people they were granting asylum to when their cases were heard. Nevertheless the point about the ECHR is the point that was understood by Churchill and, I believe, by many of us in the Chamber: we withdraw at our peril the opportunity for that freedom to be heard, that freedom for a fair trial and for somebody else to hear your case against an overbearing state.

Article 13 of the European Court of Human Rights convention sets out the right to an effective remedy. It dares to impose on state parties, on countries that signed up to the court, that

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding”— that word again—

“that the violation has been committed by persons acting in an official capacity.”

In lay person’s terms, when you think the Government have done you wrong, who do you turn to, to protect you? Rightly, you might want to turn to our courts, but if the Government are setting the laws it makes sense to many of us who value freedom and liberty that there is a third party that you can adhere to. Frankly, it is a sign that I am getting old that I look at the Conservative party now and I wonder where those libertarians are, those people who recognise, rightly, the concern that a Government might be overbearing and repressive. [Interruption.] Freedom-loving indeed, but not enough for their own freedoms it seems from how this Bill starts the inevitable process of removing that right to a remedy. We all know that right-wing Governments might start with refugees, but they never end with their rights when it comes to removing them.

The Bill’s removal of the right to an article 13 remedy would not just have consequences for refugees. Many of us have debated the concept that each person should be able to have their day in court—a concept that lay persons across the world understand, for it is written not just into the European Court of Human Rights and our Human Rights Act but the United States’ convention. It is not some terrible communist, socialist, Marxist idea that people might have a remedy and the idea of due process. It is part of being a state that plays by the rules and treats people fairly. If we start to unpick that in this legislation, it has consequences not just for our immigration system but far beyond the remit that anybody has thought about. For so long it has been a byword for British liberty and freedom that we have been prepared to stand up for the rule of law, play by the rules, and, yes, be part of making them through being part of the Council of Europe. I declare an interest as somebody who took part in one of those elections to vote for one of those “terrible” pyjama-wearing judges who then has to uphold the legislation that we have helped to create.

Where does it have an impact? Gavin Robinson talked about the Good Friday agreement and the right hon. and learned Member for South Swindon recognised that too. Let us sound the alarm here. If the Government will not deal with it now, it must be dealt with in the other place. Peace is precious and the peace in Northern Ireland was built on the bedrock of the Good Friday agreement, and the Good Friday agreement is built on the bedrock of the European Court of Human Rights. It is baked into the Northern Ireland peace process. The Good Friday agreement placed a direct duty on the UK Government and all of us in this place to incorporate the European Court of Human Rights and its work into Northern Irish law, so that people in Northern Ireland could challenge an injustice in the courts if their rights were breached. That is not my interpretation. The Good Friday agreement explicitly states

“full incorporation in Northern Ireland law of the ECHR” and states explicitly that the parties—us and the Irish Government

“affirm their commitment to the mutual respect, the civil rights and the religious liberties of everyone in the community”.

When we start removing those rights, which is what the Bill does by denying the right of a refugee to go to court under article 13, we start undermining the Good Friday agreement because it does affect people in Northern Ireland. It is a principle established in UK law through section 7A of the withdrawal agreement. The Government acknowledged that when we debated it on 12 December. The Home Secretary himself acknowledged that the Bill makes

“differential treatment in different parts of the United Kingdom” and that somehow

“the Bill will address the practical implications.”—[Official Report, 12 December 2023;
Vol. 742, c. 749.]

But we have not seen any practical addressing of the implications and the potential consequences for our commitment to upholding the Good Friday agreement, an agreement that I think we would all concur, 25 years on, still matters and therefore is worth fighting for.

It matters because refugees are people too. I do not know why we have to state that in this place, but it seems increasingly that we must. The hon. Member for Belfast East was right to talk about the Angesom ruling, but the ruling shows that the Government recognised that just a few months ago. The Government said, in the Court, that it applied to refugees. Section 108 explains explicitly that the applicant and respondent both agreed that the rights and safeguards in equality underpinned by the Good Friday agreement are not excluded from asylum seekers, and that the concept of who everyone in that community was—written into the Good Friday agreement—includes those outside the background of communal conflict.

We could be in a position where there is a frying pan and a fire. If the Government proceed with this measure we will undermine the Good Friday agreement, but if they exempt Northern Ireland so that those rights are upheld they will create a loophole in the Bill, as I am sure Members on the other side of the Benches opposite—I am not sure which part of the mafia contingent that refers to these days—will recognise. It reflects the further chaos and confusion that the Government’s Rwanda legislation causes.

I tabled amendment 9 to address this issue head-on. It asks the Government to do something very simple: to set out how the Bill upholds the Good Friday agreement. Surely that is not a controversial question to ask, but it seems very controversial for us to be given an answer. Messing around with article 13 unpicks not just the Good Friday agreement but part of our trade and co-operation agreement: when dealing with international treaties, evidence that we play by the rules and are therefore good to do business with is part of the reason other countries want to work with us, and that matters post-Brexit, because our reputation is everything. Time and again, the Government have sought to undermine it by suggesting that somehow the rules should not apply to us, and that therefore people should not expect the United Kingdom to stand up for those values, abide by them and uphold them.

Article 524 of the trade and co-operation agreement states:

“The cooperation provided for in this Part is based on the Parties’ and Member States’ longstanding respect for democracy;
the rule of law and the protection of fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the European Convention on Human Rights, and on the importance of giving effect to the rights and freedoms in that Convention domestically.”

“Giving effect” is the crucial phrase. It makes simple sense to me, as a lay person. There is no point in having rights if you cannot actually use them—if there is no Court, and no possibility of being able to seek a remedy—but that is exactly what the Bill starts to unpick. It is not a surprise to me, therefore, that Nathalie Loiseau, the chair of the committee in the European Parliament that is charged with overseeing the trade and co-operation agreement, recognises this legislation, unamended, for what it is, namely a direct threat to that.

The worry that many of us have is not about Brussels telling the UK what to do; it is about the fact that we are heading into the months and years before the TCA is to be renegotiated. Next time a constituent comes to a Member with all the paperwork that the Tory hard Brexit has created and the TCA underpins and asks, “What are you going to do to deal with it?”, or asks about the border tax that will be introduced at the end of January and all the paperwork they are going to have to pay for at the end of April, that Member should bear in mind that the opportunity to reduce and remove all that, and to bring back the trade that we desperately need, will depend on those negotiations. Walking into them with the message “You cannot trust a word that we say as a country, because we might say that we will follow the ECHR, but if we think it does not suit us we will not, and what are you going to do about it?” is not the way to get a good deal for British business.

There are consequences from the way in which this legislation has been drafted that we have not even begun to unpick in the House, but today is our last day to do anything about it. We must not look like a country that others do not want to do business with or that is hypocritical, but that is exactly what we are. To those of us who have fought for and defended the rights of people with whom we disagree, that hypocrisy stinks strongly from the Home Office. The Home Office that wants to use the European Court of Human Rights to deny the implementation of the buffer zones for which this Parliament voted on the basis that there would be an article 9 contention under the ECHR is the same Home Office that is seeking to rip up the rights of refugees to use the ECHR when it feels like it. What is sauce for the goose is sauce for the gander. In layman’s terms, everyone can see what is going on here: picking and choosing to suit your own ends, and the consequences for people be damned.

The Bill is contrary to the rule of law because it amounts to a legislative usurpation of the judicial function. It is an assault on our constitution. It is not standing up for liberty and freedom; it is denying those by removing those basic rights, and the Government are doing that in their own legal assessment. I raised this point earlier with a Conservative Member. Again, I am not legally qualified, but I think that the assessment reads like something out of “Alice in Wonderland”. It states:

“Article 13 ECHR is engaged but will not be infringed”.

That sounds a bit like “present but not involved” as a way of thinking about legislation. It seems to be saying that because we can say that Rwanda is safe and will always be safe, no concerns can ever be raised about safety. That is a tautology. It does not make any sense, not least given the evidence that there are safety concerns about Rwanda, and the possibility that things might change in future even if we do not accept the evidence of extrajudicial killings, deaths in custody, enforced disappearance, torture, and the persecution of those in the LGBTQ+ community. The assessment then begins to sound a bit more like the mad March hare:

“The Government considers that a Declaration of Incompatibility is sufficient to provide an Article 13 effective remedy for challenges to decisions under the presumption of safety in clause 2 to treat Rwanda as safe”.

To those of us who are not legally qualified, that seems to be saying that something is incompatible to make it compatible. Basically, it is saying that someone can bring a court case—so the Bill is a lawyers’ charter. The Government keep telling us that they do not like lawyers, but they seem to want to encourage them to make a lot of money out of badly drawn pieces of legislation that will encourage court cases. That is exactly what the Government’s own legal ruling does.

This House can and should do better. Amendment 9 is about resolving these challenges, and showing that we have thought about them. If nothing else, it would give succour to the Court that we had—as we did with prisoner voting—considered the matter, which is often what the Court is asking us to do: not to leave people’s rights locked away and inaccessible, but to look at how they are being used. Churchill said at The Hague:

“We welcome any country where the people own the Government, and not the Government the people.”

I think that is a very noble proposition. I am sorry that Conservative Members are increasingly advocating our removal from the European Court of Human Rights because they cannot live up to those terrible ideals of a protection of the right to family life or a protection of privacy or, goodness knows, a protection of freedom of thought.

Photo of Danny Kruger Danny Kruger Conservative, Devizes

The hon. Lady is constantly and sarcastically evoking Winston Churchill. Obviously he did sign up to the ECHR and he sent lawyers to deal with the drafting process, but will the hon. Lady acknowledge that he did not initially think that the United Kingdom would join it; and when he did sign us up to it, there was no right of individual claims to the European Court? It was properly on the plane of international law—between states, which is the appropriate place for this sort of law.

Nor would Churchill accept, surely—and nor should any of us—what the ECHR has become under the jurisdiction of the Strasbourg Court and, I am afraid, our own lawyers. All the articles that the hon. Lady has mentioned, including the right to human life, have been so extended and expanded by the courts ever since that it has become entirely inappropriate for us to belong to the Court in this way. I really do not think that Winston Churchill would have supported what Strasbourg has become, and neither, surely, does the hon. Lady.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

I am sorry that the hon. Gentleman was not here earlier to be part of the conversation. I am sure that he would want his own right of remedy to explain why he could not be bothered to be here at the start. He would have heard the debate that we had about the original intention of the Court. Let me quote back to him the original document, which states:

“The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.”

From the start, Churchill himself advocated for the Court as a backstop against overbearing Governments that could speak for people and prosecute people in ways that were being talked about after the second world war without any challenge. I do not quote Churchill sarcastically. I recognise what he saw at the time: the danger of authoritarianism. The hon. Gentleman would do well to reflect on that and perhaps reread some of those arguments—as well as the rules about taking part in a parliamentary debate.

When Churchill talked about welcoming any country in which the people owned the Government, he was talking about democracy, and our courts are an integral part of our democracy because they keep Governments honest, even if they are straining with this current Administration. Just two countries have left the European Court of Human Rights. I was there when we expelled Russia because of its aggression and when we tried to prevent it from coming back. Greece left in 1967 when it was under a military regime and rejoined once democracy was restored. We should be proud and confident in our capacity to speak up for human rights and to recognise that a right to an effective remedy is an integral part of that. There is no point having a right if we cannot exercise it, and that means having a separate body to oversee the process and ensure that it is fair to all parties.

More pragmatically, we should be worried about messing up our trade deals and undermining peace in Northern Ireland, as this Bill does. I say to Danny Kruger that it is not woke to be libertarian, to not trust Governments or to think that we need to protect ourselves. It is wack to think that because your Government is in charge, it is okay because they will not abuse their power. All Governments try to do that at some point, and it is right that all Governments face a process of challenge.

This legislation will not stop the boats. What the Government really want to do is stop the vote, but they cannot do that. There will be an election, but not before we have done potentially irreparable damage. The Irish Government have yet to say what they think about this Bill, but the UK Government were clear in the ruling in October that they felt that refugees were covered by the Good Friday agreement. So in tabling this legislation, this Government are undermining their own logic about their obligations under the Good Friday agreement. Even if Conservative Members do not care about the trade and co-operation agreement, let us at least care about the peace process. Let us ensure that these issues about compatibility are not something out of “Alice in Wonderland” but speak to the best of this place and to those obligations, because I promise that we will all regret it if we do not speak up for freedom and liberty in this way.

Photo of Suella Braverman Suella Braverman Conservative, Fareham 3:30, 17 January 2024

I rise to speak in support of amendment 11, tabled by my right hon. Friend Robert Jenrick, which commands the support of 60 of my colleagues. I note the comments made by Stella Creasy, and I would like to respond to some of them in the course of my speech.

We are here to fix a problem. It is the problem that we are all seized by, which is stopping the boats. This is our third attempt to fix this problem. We passed the Nationality and Borders Act 2022, we passed the Illegal Migration Act 2023 and we are here again in 2024, the third time round, with the Safety of Rwanda (Asylum and Immigration) Bill. The British people are fed up. They have run out of patience and they have run out of time, and this is our last chance to get it right.

Amendment 11 seeks to remedy a fatal flaw in the Bill, which is that, as currently drafted, it will lead us directly to a rerun of the scenario that we saw on 14 June 2022, when the Home Office and the then Administration had identified a cohort of illegal migrants and filled a plane ready to take off to Rwanda, but at the 11th hour, pursuant to an opaque process, a decision was made by a still unidentified judge in a foreign court that had the effect of blocking the flight—[Interruption.] Does Patrick Grady have something to say?

Photo of Patrick Grady Patrick Grady Scottish National Party, Glasgow North

I am not sure why we have to be frightened of foreign courts. What exactly is wrong with a foreign court?

Photo of Suella Braverman Suella Braverman Conservative, Fareham

I will tell the hon. Gentleman where we have a problem with a foreign court. In that scenario, when English courts had refused injunctions by the migrants to get off the flight, the foreign court overrode English judges, overrode the will of the Government and overrode the will of the British people to control our borders and stop the boats. That is the problem with a foreign court, and that is the problem that we are trying to fix.

When that flight was grounded in June 2022, it was because of rule 39 interim injunctions. Those orders are not contained in the European convention on human rights, and they are not a product or a content of the original convention. They are a creation of the Strasbourg court and the Strasbourg judges, and they have evolved over time pursuant to the living instrument doctrine that is espoused by the Strasbourg court and that has inflated and expanded its remit over decades, beyond anything conceived by the original drafters or any intention set out in the original versions of the European convention.

I believe that no one here disagrees with the aspirations and the content of the European convention on human rights. I do not disagree with anything set out in that document, which contains noble, vital and fundamental human rights that we are all proud to defend fervently and fiercely: against oppressive regimes; against authoritarianism; against genocide; against mass killings; and against some of the worst atrocities history has seen. That is the context of the European convention’s genesis.

To respond to the hon. Member for Walthamstow, the problem we are dealing with is the Court. It is the Court that has become politicised. It is the Court that has become interventionist. It is the Court that does not follow the traditional common-law rules of precedent to which the English courts subscribe. The Strasbourg Court and its judges have distorted the original European convention on human rights into something that bears no reflection to its original intention.

That has been exacerbated by Labour’s Human Rights Act. In recent decades we have seen a rights culture and litigiousness around immigration, asylum and many other areas. Public sector decision making has been stymied, thwarted and undermined by a heavily resourced, activist legal industry that is undermining Government decision making, stymying policy making and undermining law enforcement and public safety.

I have a few examples. Take the case of OO, a Nigerian national who was sentenced in 2016 to four years in prison for offences including possession of crack cocaine and heroin with intent to supply. He pleaded guilty to battery and assault in 2017. Those are serious offences. In 2020, the first-tier tribunal allowed his appeal against deportation on the grounds that he had very significant obstacles to integration in Nigeria that outweighed the public interest in his deportation. Despite the seriousness of his offending, and despite the risk he posed to the public, his article 8 rights, interpreted in a vastly elastic way—a distorted, illogical way—operated to stop him being deported.

Article 3 was invoked in the case of D v. UK. We can all agree with article 3, which prohibits torture and inhumane or degrading treatment but, in this case of a non-UK national who was convicted of dealing drugs, the Strasbourg court held that the effect of discontinuing his medical treatment, available in the UK but not in his destination country, amounted to inhumane or degrading treatment under article 3. Why should a convicted drug dealer be entitled to public services here and not be deported?

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

Surely on that basis almost any deportation could be blocked, for few countries in the world can match the standard of our NHS, and once that precedent has been set every person will claim that they require treatment for the most minor of ailments.

Photo of Suella Braverman Suella Braverman Conservative, Fareham

I am afraid that my right hon. Friend is absolutely right to highlight that point. Article 3, and a stretched interpretation of it originating in the jurisprudence of the Strasbourg Court, by politicised judges pursuing a political agenda, has led to a perception that here in the UK we have an international health service, not a national health service.

Lastly, let us consider the case of AM (Zimbabwe) in 2022, thanks to which it has now become law that states that want to remove someone have to prove that medical facilities available to the deportee in their home country would remove any real risk that their lifespan would be shortened by their removal from NHS facilities. That is exactly the point that my right hon. Friend has made: the UK Government now have a duty to establish that foreign health services are sufficient before we deport people who may well pose a risk to public safety and, in some cases, national security in this country.

Those are the overall problems with the Court—not the convention, but the Court. Rule 39 is another symptom of the problem that we have with the Court and the judges, which is why the amendment is vital. It will make it clear that rule 39 orders are not binding and that it will be for the UK Government to make the decision on deportation, not a foreign court—an unidentified judge somewhere far away who does not have the same ambition or aspiration as this UK Government to stop the boats. That is why I will support the amendment enthusiastically today.

Let me conclude by saying that this is our last chance to fix this problem. We have stretched the patience of the British people. This comes down to a simple but profound question: who governs Britain? Is it us, the democratically elected representatives who have been directly sent here on behalf of the British people, on a clear mandate and with a clear instruction of what to do, and whose laws are passed by a clear and transparent majority, to which we can all be held to account at the ballot box? Or is it an opaque forum many miles away, in a different country, that is distant, outsourced, foreign and does not share our values—

Photo of Suella Braverman Suella Braverman Conservative, Fareham

I will not give way.

Is it a forum that does not share our values, that has made decisions time and time again that are odds with what the British people have indicated they want and that has operated to undermine our public safety, national security and good governance?

It is the operation of the Strasbourg Court—we can call it the Strasbourg Court or a foreign court, and we can argue about semantics—the European Court of Human Rights, that we are concerned with here. That Court is currently controlling this country’s ability to stop the boats. That Court and its jurisprudence are preventing this Government from delivering for the British people. We made a vow to the British people that we would stop the boats. That was a solemn vow that I took incredibly seriously. It was what people voted for in 2016 in the Brexit referendum by a majority. I know that most Opposition Members do not want to believe in the majority, still live in denial and do not want to accept the facts. It is what people voted for by a huge majority in 2019: to control our borders and to stop the boats. We made a promise.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

I know the right hon. and learned Lady feels this passionately, but will she clarify her concern about a “foreign court”? What does she think NATO is?

Photo of Suella Braverman Suella Braverman Conservative, Fareham 3:45, 17 January 2024

NATO is not a court. I am slightly embarrassed that I have to make that clear to the hon. Lady, as that is really elementary politics. We are being governed by a foreign court and judges who do not have our interests at heart. The decisions coming from that court are stopping us controlling our borders. The amendment will prevent that foreign court from stopping us, so we need to support the amendment because it will fix the Bill. The Bill needs to work. It is our last chance. If we get it wrong, the British people will not forgive us, and they will be right not to do so.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (First Deputy Chairman of Ways and Means)

Order. I now have to announce the results of today’s deferred Divisions.

On the draft Immigration Act 2014 (Residential Accommodation) (Maximum Penalty) Order 2023, the Ayes were 331 and the Noes were 51, so the Ayes have it.

On the draft Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2023, the Ayes were 331 and the Noes were 51, so the Ayes have it.

[The Division lists are published at the end of today’s debates.]

Photo of Patrick Grady Patrick Grady Scottish National Party, Glasgow North

What a privilege it is to follow the former Home Secretary. The debate has really lit up. There were comparisons earlier between the debate and the next episode in a box set, but I think we have just seen the first act of the next Conservative leadership contest—no doubt the sketch writers and everyone else paying attention have suddenly woken up. She made some incredibly interesting comments. She spoke about vows that were made to British people after referendums and elections; I remember a vow being made in 2014 about how the Scottish Parliament was going to become the greatest, most powerful leader of all Parliaments in the entire world, and look how that turned out.

The former Home Secretary is right that the Government will be held to account and that Parliament will exercise its opportunity to have a say on these issues; that is why the amendments proposed by her and her hon. Friends were voted down last night and, I am confident, will be voted down again this evening. Come the election, a majority of Members of Parliament, including a majority of MPs in Scotland who represent the Scottish National party, will be returned to the House and will vote to repeal the Bill, assuming the Bill ever makes it on to the statute book in the first place.

What is playing out is a debate not specifically about this legislation but about the future of the Conservative party, and some of its past as well. In some ways, it has been a real privilege to debate against the Maastricht rebels of old and to have the opportunity to debate people who were on the television when I was studying for my modern studies standard grade 30 years ago. They still cannot get that determination to rebel against the Government out of their systems. It does not really matter what the Government are proposing—Sir William Cash, the right hon. Members for Gainsborough (Sir Edward Leigh) and for Wokingham (John Redwood) and the rest will be against it because they love that sweet taste of rebellion. But the rest of us have better things to do with our time, and we need to get on and demonstrate what our constituents think about the Bill.

We heard at great length yesterday from the hon. Member for Stone about the wonderful concept of parliamentary sovereignty, even though we are debating the clause that explicitly recognises parliamentary sovereignty today. My amendment 31 would remove a subsection in that clause because the assertion of parliamentary sovereignty in such a Bill is an innovation. I would be interested to hear the Minister’s response to that point, because the idea of including in a Bill that language about Parliament being sovereign is an innovation. With the help of the House of Commons Library, the only other instance I have been able to find is in the European Union (Withdrawal Agreement) Act 2020.

There are other examples of legislation that imply parliamentary sovereignty and that imply the ability of this House to override courts and make its own decisions. Some of that is in the founding legislation that took us into the European Union in the first place, and also in the Acts that established the devolution settlement. But the line asserting that Parliament is sovereign is something of a legislative innovation.

Given how lyrical the hon. Member for Stone waxed yesterday about the wonder of an unwritten constitution, it strikes me that this is a form of codifying the concept of parliamentary sovereignty—writing down aspects of the UK constitution. This seems to be a random piece of migration legislation, which may or may not ever actually make it on to the statute book. None the less, it seems a very interesting way to go about codifying the UK constitution.

The other reason for my amendment is the one cited by both Neale Hanvey yesterday, when he introduced his ten-minute rule Bill, and by my hon. and learned Friend Joanna Cherry earlier, when she raised the constitutional tradition expressed by Lord Cooper in the case of MacCormick v. the Lord Advocate in 1953:

“The principle of the unlimited sovereignty of Parliament is a distinctively English principle, which has no counterpart in Scottish constitutional law”.

My hon. and learned Friend spoke with far greater experience than I can about the significance of that ruling and, indeed, about the wider significance of Scotland’s historically independent legal system to this debate and to this legislation.

That perhaps explains my amendments 4 and 5, which would remove Scotland from the Extent clause because, despite what Suella Braverman seems to think about the opinions of the British public, voters in Glasgow North want no part of this. I know that because I speak to them on a very regular basis. A significant number of them are asylum seekers, who regularly come to my surgeries. I hear the horror stories not just of what they have experienced in their countries of origin, but of their experience of trying to deal with the Home Office. Frankly, if more asylum seekers knew that that was what they would be on the receiving end of, perhaps it would have the kind of deterrent effect that the Home Office is so desperately trying to achieve.

In reality, Scotland has always been a country that welcomes refugees, asylum seekers and those who want to make their home there and contribute something to our society—just as so many countries around the world did for the Scots when they were cleared off the land to make way for sheep, or when their crops fell victim to blight or, in the modern world, when people want to study around the world or practise their professions overseas. That is why I also support the amendments from my hon. and learned Friend the Member for Edinburgh South West that say the Scottish Parliament should be asked to give its consent to the Bill before it takes effect north of the border. In reality, the Scottish Parliament will not give its consent, because it is not what the people in Scotland want to see, or how they think a humane system of asylum should work.

The Bill talks about the safety of Rwanda. I asked the Prime Minister about that today. I also put the same question to the Minister who responded to yesterday’s debate. I said that if Rwanda is a safe country and a comfortable place in which people can live out their lives having been granted asylum, why would the potential of being deported there be a deterrent? It does not seem to make an awful lot of sense to me. Both the Prime Minister and the Minister said, “Well, because Rwanda is not the UK,” so not being the UK is itself a deterrent. By the same logic, if the Government came to an agreement with Disneyland and threatened to deport asylum seekers to Disneyland if they arrived here by irregular means, that too would be a deterrent, because it is not the United Kingdom. Sadly, there is not yet a Disneyland in the United Kingdom, although I suspect that, sometimes, people look at this place and wonder exactly where the fantasy in all this is.

By the Government’s own logic, then, the Bill fails under the weight of its contradictions. That is the point of the definition of the safety of Rwanda in clause 1. The Bill fails under the weight of its own contradictions, and we see that in the contradictory amendments proposed by the two, five or however many opposing factions there are in the Conservative party. The former Home Secretary, the right hon. and learned Member for Fareham, was right that the public will have their say on the Bill. After the next election, I am confident that Members from the Scottish National party will be prepared to support any legislation that the Government who are returned introduce to repeal the Bill—assuming, as I say, that it makes it on to the statute book in the first place.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (First Deputy Chairman of Ways and Means)

I will now announce the results of the Ballot held today for the election of the Chair of the Defence Committee. There were 476 votes cast, four of which were invalid. Sir Jeremy Quin was elected Chair with 371 votes. He will take up his post immediately, and I congratulate him on his election. The results of the counts under the alternative vote system will be made available as soon as possible in the Vote Office and published on the internet.

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham

I will be slightly unfashionable and talk to the amendment, rather than regurgitating some of the Second Reading speeches we have had. I do so with some trepidation because sitting to my right is a trio—a former Lord Chancellor, a former Attorney General and the Justice Committee Chair—who speak with much greater legal gravitas, and much more expensively. Perhaps the only upside is that my advice and my talking to the amendment comes for free.

In contributing to the debate, I am largely speaking to the Government side of the Committee. In all the speeches we had yesterday, when the Opposition could not fill the full allotted time for the debate, having complained about the lack of scrutiny—and I guess they may not be able to fill the full time given to them today—we heard speech after speech emulating their Front-Bench team that told us what they do not like, what they are not supporting and what they are not voting for. At absolutely no point did they come up with a practical solution for the very real everyday problems we aim to deal with here. Although we have disagreements on our side as to the methods, what we want to achieve is in common. That goal is something that needs to be tackled, and we are having an honest debate about it. The official Opposition are playing absolutely no part in that debate.

My right hon. Friend Robert Jenrick, who has left his place, started the debate by talking to amendment 23 in particular. He described the problem as like pulling the pin out of a grenade but then not throwing it. I do not think that was helpful language, and he then quit the Chamber having thrown the grenade behind his own lines. We need cool, calm consensus to come up with practical, workable, acceptable and legal solutions.

The Rwanda scheme is not perfect—all of us will agree with that—but frankly it is the only real show in town at the moment to answer this essential question that I raised last week in the Opposition debate, which, again, they struggled to fill with their own speakers. That question is: how do we deal with the people who have come to this country, mostly by small boats, having paid criminal gangs, with no credible prospect of being able to lodge an acceptable asylum claim, but who come from countries to which it is virtually, if not completely, impossible to return them, so they know that once they have made it across the midway of the channel and are in British territorial waters, they are effectively in the United Kingdom for the foreseeable future? That is absolutely the question at the heart of this Bill and the debate today and yesterday.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Home Affairs)

I have heard the hon. Gentleman make that point before about people who come and cannot be sent back to whatever country because of the situation there. That has occurred within my own casework, and at the moment it appears that the Home Office grants people temporary leave for perhaps a year at a time, which gives no certainty to the person affected but does I suppose give the Home Office discretion to reconsider, rather than giving them permanent status. That already happens, so I would say it is not something he should really be so concerned about.

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham 4:00, 17 January 2024

I know it happens already. That is what I have been saying, and the hon. Lady at least credits me with being consistent. We have three problems with the immigration system in this country. The first problem is how we can prevent people from leaving those, mostly French, beaches in the first place to make that most inappropriate and most dangerous journey—we can have a different argument about the safe and legal routes, which she knows I support, and whether that would reduce the numbers trying to do it, or whether we could come to some accord with the French so that they would intercept those boats and return the passengers to French waters.

The second problem is that we need to speed up the whole processing—as the Government have, to give them credit—of those people who are in limbo, those who came before the Illegal Migration Act 2023 who are still able to have their asylum applications in this country. We need to get through that backlog as swiftly as possible. We then have a problem with those in limbo post the Illegal Migration Act, who have effectively committed a crime under the terms of that Act.

The third problem in solving the migration process is then removing those people who have not been able to make a credible claim to stay in the United Kingdom. That is why the alternative, of their facing a lottery on whether they will end up in a hotel in Kent or a plane to Rwanda and have their claim instead assessed there, is an important part of the deterrent factor. It is one part, not an overriding part, as some people have tried to caricature it, but an important part of dealing specifically with that group of people whom it is really difficult to remove.

In time, we need more returns agreements, and we have successfully done that with a number of countries—Albania has been cited many times. However, there are countries, of which Iran will be one, with which a returns agreement is frankly impossible and we should not delude ourselves otherwise. It is wrong to suggest that we can solve this problem just by having a further agreement with the French and paying them more money. We have paid the French gendarmerie and police force £480 million already, yet the proportion of successful intercepts has fallen in the past 12 months. We already have joint operations with them. We already have a unit within the National Crime Agency dealing with this issue. The Opposition claim that this problem can be solved by getting better at cracking down on the people smugglers and co-operating with the French, but all that is happening already.

We need to speed up the applications, as I have just said, but that still does not deal with the problem of what we do with people who we cannot then return. That is why I agree with the spirit of what my right hon. Friend the Member for Newark and other hon. Friends are trying to do with amendment 23, but I do not agree with the method, and that is why I will oppose the amendment. Let us just remind ourselves that the reason this Bill has become necessary is in response to the Supreme Court judgment that found the Rwanda scheme to have various specific shortcomings: the refoulement threat and the fact it was a one-way street, which has now been resolved. That is why a number of measures have been brought in with the Rwanda treaty and within this Bill.

This Bill is about allaying fears about not fulfilling our obligations under international law and the implications that may have for the Northern Ireland agreement, as has already been mentioned, and for negotiating trade treaties and other international agreements in the future. However, the Rwanda agreement as it currently stands, before the reforms to it, fell foul of our own courts. It was not just the ECHR or the refugee convention; it was our own courts that ruled against the Government.

The Rwanda scheme needs to be seen to be lawful, not just by Rwanda, but potentially both by other countries who have signified an interest in operating a Rwanda-type scheme as hosts, and by other European countries who are interested in getting part of the action if we are able to get the Rwanda scheme into operation. Ultimately, my aim is to see a co-operation of European and other nations in a joint Rwanda-type scheme—although not one limited just to Rwanda. That could act as an effective deterrent so that far fewer people come across the channel and we can clamp down on those who still use that route, because they have little credible claim to have asylum in this country. For that, we need safe and legal routes operating properly as well, as I have said many times before.

There is a problem specifically with rule 39 indications, or “pyjama injunctions.” I am not a lawyer, but on the basis of the thresholds for which other things can go to court, that is a very opaque process. We have heard about the anonymous judges. They do not issue a full judgment, and the Government cannot make a case at all. Where else is there a legal system whereby the person who is effectively being prosecuted cannot make their own case in front of a judge? Nor is there any appeal facility in this whole operation.

Those rule 39 indications were never part of the European convention. That was never included in the constitution. There were attempts to include it in the constitution, but they were never supported. Those powers, as my hon. Friends have said, just seem to have been absorbed into the Strasbourg Court by its own fiat. To whom is that Court accountable? Why is the European Council not doing more governance of how those powers have been surreptitiously extended?

Last year, the Strasbourg Court itself admitted that it needs to change its ways and that the operation of rule 39 indications is not satisfactory. It said that, in future, they would be used only in extremis—although we do not know how it defines that—they would be operated by named judges; the Government, in this case, would have an opportunity to present their evidence and be listened to; and judgments would be more transparent. So, the Court itself knows that there is a problem with the rule 39 indications.

We are not the only country that is concerned about the way that the indications have been operated. Too often it seems, we are pilloried as if the United Kingdom Government are serial offenders against ECHR judgments and European convention diktats, but other countries seem routinely to get around rule 39 indications, and we have one of the best records in complying with ECHR judgments. Over the past 10 years or so, no fewer than 400 ECHR rulings have not been enforced or complied with, including 61% of those against Spain, 58% of those against Italy and 37% of those against Germany.

The United Kingdom is one of the best compliers with ECHR judgments. The sort of thing that we have not complied with includes votes for prisoners, about which we have heard. We had a vote about that in this House—largely to indulge the Liberal Democrats as part of the coalition Government, I seem to recall—and forcefully and robustly voted against it, deciding not to go forward with it. I think that that was absolutely the right judgment, and it stays in limbo. We need to reform the ECHR. In the past year, there have been only four judgments against the UK on convention matters.

Yet again, the UK has fallen foul of abiding by rules that too many others ignore, so I support the case for not being bound by rule 39 rulings. As I say, we need urgently to work with our partners, through the Council of Europe and others, to reform those rulings. It is a very opaque governance system. I do not believe, though, that not being bound by these confected rule 39 directions undermines our overall compliance with international law, or with international responsibilities and undertakings.

However, the Bill already says that in a reasonable and balanced way, the Minister has discretion to make the decision not to comply with those rule 39 indications, so we have given the Minister and the Government the power to say, “Actually, we do not think that is right, and therefore for good reason, we are not going to allow that rule 39 indication to apply to this case.” That is a sensible way of proceeding. It is not a mainstream, routine, blanket disregard, which could fall foul of our own courts and have international implications for the integrity of British legislation and governance. As such, I support the spirit of what hon. Members are trying to achieve with amendment 23, but I do not support the method.

We all know that getting this Rwanda legislation through Parliament is a very difficult, complex and sensitive issue. We have to strike a very fine balance between not trampling on international law and enabling our Government to get on with the measures that they were elected to implement, and I think the Government have got the balance right in this Bill, which was not an easy task. That is why I want the Bill to go through unamended—we all have something to gain from that happening.

I will certainly be voting for the full Bill on Third Reading, if that happens this evening, but my hon. Friends need to stop and consider before they pull the pin out of another grenade. If this Bill does not go through, there is no plan B for dealing with those people who we cannot transport back to the country from which they came. There will be no Rwanda Bill, no Rwanda scheme, no deterrent policy, and no obvious end to the small boats. I hope that my right hon. Friend the Member for Newark—who made a very strong case, but, I think, with the wrong ultimate conclusion on the method—will consider the implications of pursuing that conclusion all the way to voting in the wrong Lobby on Third Reading. I hope he will withdraw his amendment and let the Government get on with the job of seeing whether we can get this Rwanda scheme to work, get the planes off the ground, offer a real deterrent, and get this problem sorted out once and for all.

Photo of Tim Farron Tim Farron Liberal Democrat Spokesperson (Environment, Food and Rural Affairs), Liberal Democrat Lords Spokesperson (Communities and Local Government)

It is a pleasure to serve under your guidance this afternoon, Sir Roger, and to take part in a debate that has been broadly thoughtful, despite very clear differences of opinion. It is also a pleasure to have sat through and enjoyed the speech of Suella Braverman, who is the very definition of an activist lawyer, so we are grateful to have her with us. I speak in solidarity with the minority of other Members in the Chamber today who are not legally trained—who are not lawyers. It is right that our voices are heard as well.

I rise in particular to speak in favour of amendments 6 and 7, which stand in the name of my right hon. Friend Mr Carmichael—who is indeed a lawyer. First, I want to say something that ought not to be even remotely controversial: the evil trade of shipping people across the English channel in rickety boats needs to be stopped, and those people who are carried across the channel via those means are taking huge risks. We have seen significant loss of life over the years, including in recent times. However, the two amendments I am speaking to seek to challenge the fundamentals of the Bill. I believe this Bill will not do what it says: it will not stop the boats. It will not tackle the issues of deterrence and so on, and even if it did, the Rwanda provisions would tackle only roughly 1% of the number of people who seek asylum in this country.

As well as leading to poor policy, there are a number of errors at the heart of the Bill, because it is based on a series of false premises. There are three basic false premises. The first is the belief that, while this is a global problem and a European problem, the UK’s position is especially awful. I have heard incendiary language in this place and outside it relating to our being overrun or swamped, with people swarming across the channel, and that kind of thing. The reality is that 85% of those who declare themselves to be refugees remain in the region to which they have fled, normally the next country, so a very small minority end up in this continent. Germany takes four times more asylum seekers than the UK, France two and a half times more and Spain two times more. Perish the thought, but if we were to place Britain back into the European Union just for a second for a league table snapshot, we would see that the UK is 20th in the league table of countries among the other 27 in the number of asylum seekers we take per capita. The idea that the UK is overwhelmed by this particular problem is not true, and it does not take account of the realities across the continent and across the world.

It is also worth bearing in mind that the voter base issue the Government are really dealing with, or think they are dealing with, is excessive immigration in general, yet only 7% of the migrants in this country are asylum seekers. The real issue, and where there is an issue of our being overwhelmed, is that the last time I checked, 165,411 asylum seekers are waiting in the backlog. On past experience, 75% of those people will be counted as refugees and given approval by this Government, so we know that the people coming here are broadly genuine refugees, and a different 75%—or a not entirely coterminous 75%—of them are waiting more than six months. When Members get letters in their postbag and emails from people outraged about this issue, it is usually less about the boats crossing the channel than the fact that a local hotel is full of asylum seekers, not being used for its primary purpose, and there is a reason for that.

Those asylum seekers do not want to be in such a hotel; instead, they want to have their cases treated quickly. When I was in Barrow in the constituency of my neighbour Simon Fell a few months ago, I talked to asylum seekers who would rather be told to leave the country and be given a negative decision than waiting the year or more that they have waited so far. One guy told me he had been an Afghan interpreter for the British Army in Afghanistan, but we had left him behind, and the only way he could find to get to this country was to come via an irregular route. These are the people we are talking about, and the reason we are in the situation we are in is the Government’s failure to tackle the backlog. The first false premise this Bill is based on is that the UK’s problem is somehow different and greater than any of our neighbours’ or, indeed, somehow separate from the problem that affects the whole of planet Earth.

The second false premise is that the only way to control migration—or 7% of it, because asylum accounts for only 7% of UK migration—is to duck international law and become a pariah. Sir Jeremy Wright pointed out, more eloquently and in more detail than I am going to, the importance of the United Kingdom being credible internationally. We listened to the Prime Minister earlier this week, and we are aware of what the UK Government are doing and what the UK military is doing alongside the US in the Red sea, and the justification for that, which I hear, understand and accept, is that this is about upholding the rule of law. If we want to walk on the world stage and be a leader—to be people with influence—then we need to be not among those who habitually break the rule of law and think these things do not apply to them.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee, Chair, European Scrutiny Committee 4:15, 17 January 2024

I mentioned this question of global leadership in my speech yesterday for a very good reason. It is to do with reputation, but it is also to do with change. All over the European Union, faced with compulsory quotas and compulsory fines, countries are in a real mess. There is the charter of fundamental rights, and the EU cannot make changes without changes in constitutional law and in countries’ constitutions, and they may well have to have referenda. In this country, we are in a different position and can make changes because, in our dualist system, we are entitled to require our courts to obey the decisions of Parliament about sovereignty where clear and unambiguous wording is used. There is the difference, and that is why we can lead the world. Such negotiations are bound to be happening because my hon. Friends at the other end of the Chamber have been saying they believe there will be changes in the European convention on human rights and, for that matter, the refugee convention.

Photo of Tim Farron Tim Farron Liberal Democrat Spokesperson (Environment, Food and Rural Affairs), Liberal Democrat Lords Spokesperson (Communities and Local Government)

Of course it is a given that the law changes, and laws change via a variety of different means, including how this place votes. Nevertheless, the UK would be seen to be choosing—in order to tackle a problem in an ineffective way—to disapply the Human Rights Act 1998 and at least to an extent not to comply with international law.

I heard all the disparaging remarks about lefty lawyers, activists, judges, foreign judges and so on, all of which demeans this place and is not what people who are supposed to uphold the constitution ought to be saying, particularly given that the majority of lawyers I have heard speaking in this debate are on the Conservative Benches; if Conservative Members want to describe themselves as lefty lawyers, that is their business, but it is not helpful. But when we have the Law Society saying that the Bill might be incompatible with our international obligations and

“sets a dangerous legal and constitutional precedent by legislating to overturn an evidence-based finding of fact by the UK’s highest court”,

we should take it seriously.

There is no doubt whatever that for us to decide to pass a law to say that Rwanda is a safe country is an overreach of Parliament, because if we have evidence to say that Rwanda is safe, present it to the court—do it in the proper way. It is dangerously authoritarian to decide on a matter of fact of law rather than presenting it before the courts. It is not only an overreach, however; it is also ridiculous. If we are going to declare Rwanda safe just because we want it to be, I declare Blackburn Rovers back in the Premier League and Alan Shearer to be 30 years younger and back in a No. 9 shirt playing up front for us—there we are, make it so—but that is clearly not the case, sadly. If there is evidence, we should present it to the court. It is ridiculous for this place to say that somehow it can declare a place safe just because it is convenient for it to do so.

We do not control migration by this kind of sophistry, but deterrence is still appropriate. People have asked what deterrence we are going to have: the deterrent is if we had a functioning asylum system where we actually returned people whose applications failed.

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham

On the point about declaring a country safe, France, Germany and other EU countries have decided they will not entertain any asylum applications from Albania because it is a safe country that abides by the same conventions. They have done it; why can’t we?

Photo of Tim Farron Tim Farron Liberal Democrat Spokesperson (Environment, Food and Rural Affairs), Liberal Democrat Lords Spokesperson (Communities and Local Government)

I think on balance we would say that Albania probably is safe, and the bulk of returns we have had have indeed been to Albania. But I think it is wrong for us to get out of a hole on this individual case in this way where there is evidence that Rwanda is not a safe place; the issue is that we should present evidence to the court in order to achieve that.

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham

The hon. Gentleman has just made a discretionary judgment on the safeness of Albania, having said that nobody can determine whether a country should be deemed safe or not. There are many dangerous things going on in Albania, which is why some people are leaving, involving trafficking, drugs and various other things. All I am saying is that European countries will not entertain asylum applications from Albania because they have deemed it not to be suitable and applicable, so why cannot we apply the same criteria to Rwanda?

Photo of Tim Farron Tim Farron Liberal Democrat Spokesperson (Environment, Food and Rural Affairs), Liberal Democrat Lords Spokesperson (Communities and Local Government)

I have never been an apologist for other European countries: they make their own decisions, but the clear issue is that this House has been asked to decide on a matter of law when that is a matter for the courts. If there is evidence that Rwanda is safe, we present that evidence to the court. That is the proper way to go about it, and the hon. Gentleman knows that. My opinion on whether a place is or is not safe is neither here nor there; the issue is whether the courts have considered the evidence in front of them. The evidence in front of the courts was that Rwanda was not safe; we do not deal with that by just declaring it to be safe, which is unconstitutional and also ridiculous. We present the evidence, and if the Government have evidence they should present it to the court.

I want to go back to the issue of deterrence, which I was leading into before the intervention. If we want to deter people who do not have a legitimate claim from coming to the United Kingdom, we should be some use at removing those people who do not have a legitimate claim. The fact is that only a quarter of those people who are denied asylum once they have gone through the process are removed, and that is the problem. We have a Government who are incompetent at doing the basics, inefficient, and weak at tackling those people who eventually do get assessed and are shown not to be refugees. The problem is not activist judges, but weak and incompetent Government.

I am not accusing everyone on the Government Benches as being populists, but one of the hallmarks of a populist is that they look at a huge and difficult problem and they come up with a simplistic solution. The reality is that we need to be honest that this is a difficult problem that is not easy to solve. It is a global problem, and we have to work with other countries to try to address it. For example, some of the issues around Yemen will no doubt have been exacerbated by this country choosing to reduce its aid to Yemen.

If we want to influence and stop the flow of people away from troubled parts of the world, we should get alongside those places and try to deal with these things at source. I would not make any pretence that that will solve the problem, but let us not pretend that trying to attack one part of the symptom is an answer. It is dishonest to claim that this Bill is an overall answer to the problem.

The third false premise is that the provisions of this Bill will even remotely work. At best, on the Government’s own figures, a maximum of 1% of the asylum seekers coming to this country will end up being removed to Rwanda, at the cost of £240 million and counting. We could just say, “Why not put that money into a better Border Force? Why not put that money into clearing the backlog? Why not put that money into doing things that actually would deter people from coming?” The Bill will not work, though, and it will not deter people, and let us just think why it will not deter people.

Many refugees who end up in this country, including by coming over the channel, come from Eritrea in the first place. Many would refer to it as the North Korea of Africa. Isaias Afwerki is an awful, appalling dictator. Among the things he does that is a cause of people seeking refuge from that country is conscripting all young men at 18. Many of them, particularly from Christian communities, are then sent to murder their own people. People ask, “Why are so many of the people coming young men?” That is one of the reasons. They seek asylum. Where do they go next? Many will stay in the region.

It is important to understand deterrence. Let us say that some young men—maybe a couple of brothers—have escaped. It was hard to escape in the first place from Afwerki and his evil henchmen, so they leave the country. They end up at some point going through the lawless horror that is Libya. It is utterly appalling, and a country without rules. The experience of what happened post-Gaddafi is a reminder that there is nothing so awful in this world that you cannot make it worse, and Libya is even worse than it was then. They pass through that country with its human trafficking, a massive murder rate and the appalling human rights experiences, and they eventually make it to the Med.

They cross the Mediterranean on to mainland Europe, and then at some point they are asked to make a decision about whether they will cross the 20 or 30 miles of the English channel. That is a piece of cake compared with the horrors they have endured so far. Do we genuinely think that the 1% chance they might get sent to Rwanda is a deterrent at all? It is a reminder, is it not, that Rwanda is a huge distraction from the issues we face.

This Bill assumes a state of affairs that is not true. It assumes that the only way to deal with the situation is to act unconstitutionally, and in a very anti-Conservative and un-Conservative way, I might add. It assumes that the scheme will work when it blindingly obviously will not. Amendments 6 and 7 in the name of my right hon. Friend Mr Carmichael are there to challenge the assumption that to control migration we need to exempt vulnerable people from domestic laws that protect their human rights. We do not need to try to duck out of our obligations under the ECHR by ignoring interim injunctions. These provisions are morally wrong. They are constitutional vandalism and constitute a failure. This Bill is about seeking to distract the electorate from the reality of people’s daily lives.

We have a Government failing to govern or to tackle the cost of living and the NHS crisis. One in nine people in my constituency are currently on an NHS waiting list, and the Government are wasting their time on something that is morally outrageous, unconstitutional and will not even do the thing it is set up to do.

Photo of Roger Gale Roger Gale Deputy Speaker and Chairman of Ways and Means

Order. Before I call Sir John Hayes, may I remind the House that this is not Second Reading debate? It is certainly a debate about the clauses standing part and the amendments, but it is not a Second Reading debate—there is a distinction.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings 4:30, 17 January 2024

The debate on the Government side of the Chamber, as my hon. Friend Tim Loughton said, is not on a difference in aims or ends; it is about the means to those ends. Government Members want to travel to the same destination; what we are debating is the journey to get there. So let us not exaggerate the differences between us. I know that the Minister shares that view. We have engaged with him and hope to continue to do so, even at this late stage, to improve the Bill and realise the delivery of those intentions—the journey to that end.

We have to do so, because mass migration is perhaps the biggest existential crisis facing this country. I do not say that blithely—unfortunately, people say things in this Chamber as though they were definitive and use all kinds of superlatives; indeed, Stella Creasy has made a brand out of that, as we heard earlier. That view would be shared by a large number of my constituents and, as my hon. Friend the Member for East Worthing and Shoreham also said, it is now widely shared in other countries. The Bill and the amendments to it therefore affect our constituents directly and personally, contrary to the contribution of Tim Farron, who claimed that it is a distraction. Far from it; we cannot absorb into this country the number of people who are coming as a consequence of both legal and illegal migration in a short period of time without a devastating effect on public services, a displacement effect on investment in the skills of our own people, a displacement effect on the need to reform welfare and, beyond all that, the ability to integrate those incoming people into cohesive societies in which we all share a common sense of belonging.

In dealing with the amendments, we need to be realistic about the scale of the problem and the British public’s view of that problem. They know that the vast majority of people arriving here on small boats—about 75%—are men under 40. By the way, about nine out of 10 arriving are male, which is far from the picture painted by some of the critics of the Government and our policy. They know, too, that large numbers of those people are not genuine asylum seekers but economic migrants. That truth is so evident to the electors of this country that they look with bemusement at this place where it is not widely recognised. We hear speech after speech—from Opposition Members in particular, I must say—that seems to be either ignorant of those facts or unwilling to face them.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I do not know whether the hon. Lady is the first or the second, but I happily give way to her.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Home Affairs)

Perhaps the right hon. Member would like to correct the record. Most people who come on small boats are in fact refugees, because the Home Office grants them that status. They are not economic migrants as they do not get economic migrant status; they get refugee status.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

What we certainly know about them all is that before they got here they have travelled through safe countries—more than one in many cases—and failed to claim asylum. The hon. Lady is right that we are probably too lax in how we process claims. Certainly, we offer asylum to more applicants than France. On average, we grant a higher proportion of asylum claims than most European countries.

We know, too, that the failure to remove those people costs the British taxpayer an immense amount of money. When I looked at the figures, I was staggered. The cost of asylum is now £3.97 billion. It is extraordinary that a single matter should cost so much. The need for the Bill is justified alone on the basis that we can no longer afford to deal with the current scale of illegal migration. We simply cannot afford for it to continue, as the British sense of fair play has been tested to its limits. The public see that, and they are increasingly disillusioned by the apparent inability and unwillingness of the political elite in this country—we are the political elite, like it or not—to accept the facts.

Progress has been made in clearing the backlog, largely as a result of the efforts of my right hon. Friend Robert Jenrick and my right hon. and learned Friend Suella Braverman. During their stewardship of the Home Office, they focused resources on processing claims more quickly and had considerable success in doing so. But the problem is that as fast as we process people, more arrive.

Until we deal with the root of the problem, we can never really tackle the cost I described nor the disillusion felt by our constituents. That is why the Prime Minister pledged to stop the boats. In order to do so, we need an Act that is as effective as possible. The amendments in the name of my right hon. Friend the Member for Newark, which I strongly support, would ensure just that. Amendments 11 to 18 deal in particular with the Human Rights Act 1998. Taken together, they would fully disapply the Act from the Bill and the Illegal Migration Act 2023, particularly in relation to removals to Rwanda.

A lot of nonsense was spoken earlier about rights; indeed, a lot of nonsense prevails in this House about rights. Rights are fundamentally important. We believe in the essential rights that characterise our country: the right to a fair trial; the right to go about one’s business freely and unimpaired; the right not to be arrested without cause; the right to vote in free and fair elections. Those are important parts of what it is to be British, but they do not spring from the ether. They are not a given—it is a liberal myth that rights are natural. Rights are the product of decent Governments in decent places doing the right thing. They are special because we have chosen them, not because they were given to us by some ethereal source. Tim Farron, whom I like and respect, will know, because he knows scripture even better than me, that rights do not get a mention in the ten commandments or the Sermon on the Mount. Perhaps he can find a part in either of those to contradict me.

Photo of Tim Farron Tim Farron Liberal Democrat Spokesperson (Environment, Food and Rural Affairs), Liberal Democrat Lords Spokesperson (Communities and Local Government)

I did not mean to intervene, but the right hon. Gentleman has tempted me. This is not a liberal thing, as many Conservatives ought to support it. I do not believe there is any case for human rights having any standing whatsoever without some form of metaphysical. He is quite right to say that the Bible does not talk about rights; it talks about individual duties. If I have duties to him, he therefore has rights. I do not believe that rights are made up by human beings; they are literally God-given.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

My opinion of the hon. Gentleman has soared to an even greater height. I knew he was the best of liberals—that is not a great thing to be, by the way, but it is better than nothing—and he has confirmed it in that pithy intervention.

The crucial point about amendments 11 to 18 is that they rule out using sections 4 and 7 of the Human Rights Act. We know from experience that the good intentions of Governments, backed up by legislation passed in this place, have been routinely frustrated by what my right hon. and learned Friend the Member for Fareham rightly described as activist lawyers abroad, and, I would add, dodgy lawyers in this country and deluded pressure groups; it is not just malevolent foreigners, but malevolent people here, too. I say to the Minister that the only way we will effect the policy is if we do not allow that kind of gaming of our system by those who come here. I entirely accept that there are among them people whom we should of course welcome. Of course there are people fearing persecution, and of course we should be proud of the fact that we provide a safe haven for people in desperate need—we always have and we always will—but people who are legitimate applicants for asylum are being effectively compromised by a system that does not adequately distinguish them from the very people I have described as gaming our far too lax system.

The Bill is an opportunity to put that right, but only if it is fit for purpose. The amendments are not designed to frustrate the Minister’s intentions or to allow the Prime Minister’s pledge to fail. On the contrary, they are designed to make his pledge real: to allow it to be effected. For if the amendments are not accepted by the Government, I fear the Bill will do just that: fail and disappoint the very people to whom we made that pledge to stop the boats.

Section 4 of the Human Rights Act deals with declarations of incompatibility and section 10, as I described it, deals with remedial measures. As it stands, they are not excluded by the Bill. That means that unamended, the Bill will allow a court to issue a declaration of incompatibility with the ECHR, which would effectively kill the Rwanda scheme. The Minister must know that that is a possibility at least—we would argue a probability —but even if it is a possibility, why would he not want to exclude that possibility?

Photo of Robert Jenrick Robert Jenrick Conservative, Newark

Perhaps I could just elaborate on the point my right hon. Friend is making. What is most likely to happen were the amendment not to be accepted by this place is that on Royal Assent someone will bring a case seeking a declaration of incompatibility for the Bill. That will then go through the courts. If the Supreme Court were then to rule, ultimately, that the Bill was incompatible with the Human Rights Act, it would then be up to this House and Parliament to determine what to do. But if the Prime Minister is correct that the Government of Rwanda would not wish to be a party to any scheme that was in breach of international law, the scheme would be dead.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

My right hon. Friend explains exactly the point I was making. The intentions of the Bill are put at risk by the failure to close the loophole. It is just that: an opportunity for people to exploit, in exactly the way he says, the absence of provisions that would strengthen, or in the Prime Minister’s word tighten, the Bill sufficiently to avoid such an eventuality.

Photo of Sarah Dines Sarah Dines Conservative, Derbyshire Dales

All the British people expect is real fairness and hearings with real judges. We have been speaking about the European Court of Human Rights. Is it not the case that many who are appointed to that Strasbourg Court have never even been lawyers—they are not qualified—let alone judges? Often, they are academics, civil servants or even politicians. More recently, as time has gone on, they have been human rights activists. These non-lawyers are often guided by non-governmental organisations, who even help to draft their judgments. They are what Lord Sumption has described as “ideologically committed staff lawyers”. Why should we in this place and in this wonderful country be subservient to that notion of international justice? Make laws here—that is what our people want.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

In that pithy intervention, my hon. Friend has described much of the fundamental problem of allowing what my right hon. Friend Sir Edward Leigh described as a foreign court with foreign judges to determine outcomes that directly affect the interests of this country.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

Will my right hon. Friend give way, on that point?

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

My hon. Friend Miss Dines advanced so many compelling arguments in her intervention that I want to deal with all of them before I give way to my right hon. Friend.

There are three aspects of this. The first is that our judicial system is not common but particular and special, being rooted in English common law but also, largely owing to the separation of powers, meaning that our courts are independent from the legislature and the Executive, so we have a strong tradition of both judicial quality and judicial independence. That is not true of many other countries in Europe. I am now happy to give way to my right hon. Friend, who will elaborate.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough 4:45, 17 January 2024

People talk about the European Court of Human Rights in Strasbourg as if it were rather like our own Supreme Court or that of the United States but, as I said earlier, I am a member of the Council of Europe, so I know exactly how these judges are appointed. We in the Parliamentary Assembly of the Council of Europe appoint them: it is the one power that we have. We are given three names, and we have very little information about who those people are, but it is undoubtedly true—there is evidence of this—that more and more of them are not, like our judges, distinguished lawyers and judges; they are, for instance, human rights lawyers and academics. What is worse about the process is that, unlike our judges, they are not appointed through an independent process. The political groups in the Parliamentary Assembly, dominated by the socialists and the federalist Christian Democrats, join together to appoint the most federalist pro-European judge.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

It is that to which I was alluding. The separation that exists in this country between the judiciary and the legislature in the political process and the process of justice simply does not apply in many of the other countries in Europe, and it certainly does not apply further afield. There is a problem of the politicisation of the courts and also, as I said earlier, there is a problem of quality, both of which were referred to by my hon. Friend the Member for Derbyshire Dales and my right hon. Friend the Member for Gainsborough.

Secondly, there is an issue of accountability. The point about law in this country is that it is made in this place. The reason why that is so significant is that this place derives its legitimacy from elections—democratic and fair elections. We were empowered to make laws in this Parliament because we were accountable and answerable to the people. As soon as we subsume that accountability into some pan-national arrangement, especially the kind outlined in my hon. Friend’s intervention, we weaken this House, and by weakening this House we weaken the people who send us here. That is partly why their view of the world is so at odds with what I described earlier as the political elite, although what I really mean is the bourgeois liberal elite who dominate far too much of the establishment in all its elements.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

There is a bourgeois liberal incarnate!

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I exclude the hon. Member for Westmorland and Lonsdale. He is liberal but he is not bourgeois—at least, as far as I am aware.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

He definitely is not.

The amendments that disapply the Human Rights Act are fundamental to the Bill’s success. May I just say as an aside—it is, of course, entirely relevant to the Bill, Sir Roger—that we should, in government, from 2010 onwards, have got rid of the Human Rights Act anyway? It is a Blair construction, through the prism of which all legislation now seems to be seen. It is a very damaging statute that has stymied much of the work of subsequent Governments.

Amendments 23 to 25, taken together, would prevent the notorious rule 39 injunctions—the so-called last-minute pyjama injunctions—which emanate from Strasbourg. These amendments would ensure that the default position was that rule 39 indications were not binding and this was explicitly a matter for Ministers. The Government’s own legal advice has made it clear that without amendment to the Bill, flights may be grounded yet again. Ministers will indeed have the opportunity to introduce exceptions, but will not be bound to do so. The Bill must be amended so that Ministers can disregard rule 39 orders. We really cannot allow Strasbourg judges to overrule this Parliament and halt flights. Decisions must be taken by those elected in Westminster, not by courts in Europe. This is what the people expect of us; it is what the people demand of us.

The Bill may block claims about the general state of Rwanda, but it will still permit individual claims, which will block removal unless such individual claims are explicitly excluded. We know that spurious cases are used to frustrate removal, and thus the legislation will have no teeth. The Minister knows that these things go on for days and weeks and months. These cases are never resolved quickly, and time is short. Consequently, the Government must surely acknowledge that, at the very least, the flights that they, and we, regard as a necessary part of dealing with the scourge of illegal immigration will be delayed.

The amendment will block individual claims and suspensive claims, limiting such claims to exceptional circumstances. There are circumstances, perhaps when a seriously ill person cannot travel, that should be accepted—I hope we would all agree with that—but those will be rare cases. The Home Office has already correctly excluded families, children and pregnant women, but those circumstances are incredibly unlikely, given what I have said about the profile of those people arriving in small boats being overwhelmingly fit men under the age of 40.

This is the third migration Bill in recent times. It is our third and final chance, as others have said, to deliver on our promise to the British people to stop the boats and control our borders. If we fail to strengthen the Bill in the way that these amendments do, it will simply not work, and if we fail to make the Bill work, we will fail the British people. We will have broken our promise to them. Thousands more people will make risky journeys in perilous conditions and our hotels will remain full of those awaiting judgments at enormous cost. The British people will regard this as a failure that is rooted here in this House and in this Government.

The Minister is a good man and a diligent Minister and I am sure he understands the thrust of the arguments that have been made in the Committee today. He will know that, in the end, this is about a fundamental crisis of democratic efficacy: the ability of a nation state to deliver for its people. The greatest Conservative Prime Minister of all time, Benjamin Disraeli, said that

“justice is truth in action.”—[Official Report, 11 February 1851;
Vol. 114, c. 412.]

This issue is a matter of justice—legal justice and social justice. It is for that reason that the British people want to see the boats stopped. They simply regard it as unjust that our borders are being breached with impunity.

If the elected Government of the United Kingdom cannot remove people who arrive here without permission, a more troubling and profound question must be asked. Who governs our country? My constituents want the Government they elect and the Parliament they vote for to determine who governs Britain. Only by improving this Bill and by delivering the Prime Minister’s mission of stopping the boats can we answer that question.

Photo of Diana R. Johnson Diana R. Johnson Chair, Home Affairs Committee, Chair, Home Affairs Committee

This has been a very interesting Committee, ranging from the metaphysical to MPs feeding each other baked beans, and from a constitutional tour of the history of Scotland to the case of John Hirst, who lived in Hull. He put an axe through his landlady’s head, went to prison and fought a campaign for prisoners to have the right to vote—we have discussed prisoners’ right to vote in the past.

We have also heard a lot of criticism of lawyers, but I have to say that some of the best speeches we have heard this afternoon have been from lawyers. I do not know whether they count as leftie lawyers, as they were sitting on the Conservative Benches in the majority of cases.

I am conscious that this is not Second Reading, but I refer the Committee to the report on small boat crossings produced by the Home Affairs Committee 18 months ago:

“There is no magical single solution to dealing with irregular migration. Detailed, evidence-driven, fully costed and fully tested policy initiatives are by far most likely to achieve sustainable incremental change that deters journeys such as dangerous Channel crossings.”

We also said that the No. 1 issue the Government needed to address was the backlog, on which I am pleased there has been some progress. The backlog is still about 90,000, but that is an improvement on where we were last year.

I am concerned about amendments 11 to 18 and 23 to 25, tabled by Robert Jenrick, because if they were accepted, they would put the United Kingdom on a collision course with international law. I also want to speak to amendment 36 and new clause 7 in relation to the cost of the Rwanda policy.

Clause 3 disapplies the Human Rights Act, and amendments 11 to 18 would extend this disapplication, thereby extending the permission this Bill grants for public authorities to act in ways that are incompatible with human rights. Specifically, amendments 11 and 12 appear to extend the disapplication of the Human Rights Act to anything done under the Illegal Migration Act relating to the removal of a person to Rwanda. This could potentially include a person’s detention and treatment prior to removal, meaning that not only would no legal challenge be possible under amendment 22, which we discussed yesterday, but there would be no specific legal obligation on public authorities to act in compatibility with human rights. Extending the disapplication of sections 2 and 3 of the Human Rights Act to all immigration legislation, as it relates to a person’s removal to Rwanda under this Bill or the Illegal Migration Act, would raise serious concerns about unforeseen consequences and unintended human rights violations.

It should also be noted that amending the Bill to disapply section 4 of the Human Rights Act, which has never been done before, does not have any clear legal purpose. It would simply prevent the courts from telling the Government and the public their view on the law. As the Secretary of State has already said on the face of the Bill that he is unable to say that it is compatible with convention rights, no one could reasonably presume that a statement of the same from the courts would have any impact at all, which is why I am querying these amendments.

The former Immigration Minister, the right hon. Member for Newark, opened the debate with amendments 23 and 25, and he talked about taking the pin out of a grenade. Clause 5 concerns interim measures of the European Court of Human Rights, stating that it will be for a Minister, and only a Minister, to decide whether the UK will comply.

At this point, let me again pay tribute to the Chair of the Justice Committee, Sir Robert Neill, and the Chair of the Joint Committee on Human Rights, Joanna Cherry, for their clear explanation of the current situation on these interim injunctions; for setting out clearly what the UK’s involvement with that Court is and our long-standing commitment to it; and for setting out that a review is taking place on those interim injunctions, which is very helpful.

Amendments 23 and 25 would stipulate that interim measures from the European Court of Human Rights—the so-called “pyjama injunctions”—which halted the removal of the asylum seekers to Rwanda in 2022 are “not binding” on the UK and have “no effect” on a person’s removal to Rwanda. Although the amendments allow that a Minister may choose not to remove someone where interim measures have been indicated, amendment 25 makes amendments to existing provisions on the treatment of interim measures in the Illegal Migration Act 2023 that are designed to make it clear that the Secretary of State, immigration officers and the courts must not have regard to interim measures in relation to removals to Rwanda. As we have been discussing, these interim measures are made under rule 39 of the rules of procedure of the European Court of Human Rights and therefore do not form part of the text of the convention ratified by the UK. However, the Court, the body that determines the meaning of the convention, has held consistently that failing to comply with interim measures amounts to a breach of article 34 of the convention itself: the obligation not to “hinder in any way” the right to bring claims before the Court. Therefore, any decision of a Minister not to comply with interim measures would be inconsistent with the UK’s obligations under the convention. The legal advice that the Home Affairs Committee has received is that the amendments before us this afternoon would therefore put the UK directly in conflict with the European Court of Human Rights. Worryingly, there have also been reports today in the media that the Government are considering amending the civil service code to require civil servants to ignore interim measures from the Court. The general secretary of the FDA has described that as “madness”. Interestingly, there may be some synergy here with the Minister’s approach, because I understand that when he was Solicitor General he backed the Attorney General’s advice stating that ignoring a rule 39 order would breach international law and that the Government should not even indicate that they would refuse to comply.

Amendment 36 and new clauses 5 and 7 relate to costs, and I want to look at another aspect missing from the Bill and deserving of some scrutiny: how much this policy will cost. I want to speak to those proposals particularly because of what has happened recently with the attempt by the Home Affairs Committee and Public Accounts Committee to find out about the cost of the Rwanda policy. There is far too much that we do not know about how much policy will cost and how much taxpayers’ money is going to be spent. That is why new clause 7, which would require the Secretary of State to promptly notify Parliament of any payments made under the Rwanda treaty, has merit. I hope that the Minister will look carefully at that new clause. It is why amendment 36, requiring the publication of a full impact assessment on the costs involved in removals to Rwanda and publication of the financial memorandum signed with Rwanda, also carries great merit. As I was saying, the Home Affairs Committee and the Public Accounts Committee have found it very difficult to get basic financial information from the Government on the Rwanda scheme, which is why new clause 5 is also worthy of the Minister’s careful consideration.

New clause 5 would place the monitoring committee for the Rwanda treaty on a statutory footing, which would enable greater oversight of the implementation of the treaty. Crucially, it would ensure that Parliament can do its fundamental job of scrutinising Government policy.

As the Home Affairs Committee spelt out 18 months ago in our report, which I quoted from earlier, dangerous channel crossings will stop only when we have the evidence-driven, fully-tested policy initiatives I have talked about, and when they are properly costed. It seems to me that that is plainly not the case at the moment. That is crucial for us not only to delivering a policy that stops small boats, but more widely to ensuring the responsible and effective use of public money.

It is important to remember that when the Rwanda scheme was announced, the permanent secretary at the Home Office required a ministerial direction from the Home Secretary to implement the policy, as the permanent secretary judged—he still holds the same view—that there was no evidence that the scheme would constitute value for money. On that basis, one might think that the Government would be keen to demonstrate exactly how much public money they are spending, to allay fears that the money is not being well spent.

I am very concerned about the position they have got themselves into, as we still do not know how much will be paid to Rwanda in the final two years of the migration and economic development partnership, or the per person cost of relocating an individual to Rwanda. The most substantive update we have received recently on the cost of the scheme came about by accident, because someone apparently mucked up and published details in the International Monetary Fund’s board papers. We found out about that unwitting disclosure in a similarly haphazard way, with a late-night letter from the permanent secretary to myself and my hon. Friend Dame Meg Hillier, the Chair of the Public Accounts Committee, which he then posted on the Home Office website. It appears that Rwandan MPs are able to find out exactly how much money the British Government are paying for the scheme, but British MPs are not allowed to have the same information made available to us, unless it is disclosed seemingly by mistake.

What we do know is that following the £140 million paid to Rwanda in the financial year 2022-23, there was an additional payment of £100 million in April 2023 and a further £50 million will be paid in the financial year 2024-25. As I have said, the deal with Rwanda is for five years and the Government are still not willing to tell us exactly how much is pledged in those final two years.

As for the money paid to Rwanda already, we now have some information. I am grateful that the Minister for Countering Illegal Migration was able to provide some information in a letter, which the Home Affairs Committee has published today. It sets out how the £120 million is being spent, saying 39% is spent on education, 21% on infrastructure, 19% on job creation, 13% on health, 5% on agriculture and 3% on information and communication technology.

We know that the Government have also pledged to pay Rwanda a certain amount in relation to each asylum seeker removed there, but yet again we do not know how much that will be. All we have been able to glean from the Home Office is from the economic impact assessment to the Illegal Migration Bill, published at the tail end of its progress through Parliament, which estimated that the cost of relocating a single individual seeking asylum to a third country—Rwanda—would be £169,000 per person. We are told that that represents

“additional costs incurred relative to processing an individual through…the current migration system.”

I understand from previous Immigration Ministers that the cost of processing an individual in the United Kingdom is around £12,000, so there is quite a differential between £12,000 and £169,000.

It is not just those core costs that we are unclear about. There are multiple layers of other possible, probable and prescribed payments involved in the delivery of the policy that we have not been given any detail on. For instance, the treaty with Rwanda establishes a new appeals body for individuals applying for asylum that will be staffed by judges from, we are told, “a mix of nationalities”. Will the United Kingdom be paying for that new international appeals body and its staffing? If so, how much will that be?

The treaty also specifies that any person sent to Rwanda will be entitled to a permanent residence permit. This deals with the refoulement issue that the Supreme Court was concerned about, and it means that a person will stay in Rwanda even if their asylum claim is unsuccessful. We do not know what the financial implications of that are for the British taxpayer and what payments will be paid, if any, to the Rwandan Government in connection with those unsuccessful asylum applications.

The treaty also specifies that the initial asylum decision will be made by individuals who are appropriately trained, and that, for the first six months, no claim will be rejected unless advice has been taken from a seconded independent expert. Will the UK be providing any additional money to Rwanda to train these decision makers and employ these independent experts?

The treaty guarantees free legal advice to claimants during the asylum process. Will the UK be making any payments to Rwanda to back up that guarantee? Again, we have not had anything from Ministers to tell us this basic information to enable us to effectively scrutinise the policy. That is also before the announcement that was made in the written ministerial statement yesterday where the Lord Chancellor set out that there will be 150 lower-level judges appointed to the Upper Tribunal in the United Kingdom to hear appeals quickly. I think that that was a concession to Conservative Members who were very concerned about the number of appeals that might flow from the Bill.

I did hear the Minister on the news this morning being asked about the cost of the 150 judges, and he was not able to say what that cost was. Again, that is another factor that we need to consider when we are looking at the value for money of this policy. So, given the failures that I have talked about in relation to transparency and given the resistance that the Home Affairs and the Public Accounts Committees have encountered in getting more details on the cost of the Rwanda scheme, amendments 36 and new clause 7 would be very helpful to Parliament in getting that information.

Those are the main points that I wanted to raise today, but, again, I reiterate that a huge amount of political capital and parliamentary time are being spent on this Bill. What we do know, and what the Home Affairs Committee said 18 months ago, is that we still do not have the evidence that this Bill will actually do what the Government think it will do, which is to deter people from getting in small boats and crossing the channel. There is a huge amount of resource going into this, but, as I said at the start, there must be a range of initiatives to deal with illegal migration. There is no one magic policy that the Government can use to stop the problem that we have with small boats. I hope the Minister will take that into account in his closing comments.

Photo of David Simmonds David Simmonds Conservative, Ruislip, Northwood and Pinner 5:00, 17 January 2024

May I start by drawing the Committee’s attention to my entry in the Register of Members’ Financial Interests?

The Ruislip, Northwood and Pinner constituency is a part of north-west London that has been shaped by generations of refugees, starting in the period around the second world war with large members of European Jews fleeing persecution. Successive waves of people have come from across the world, finding refuge and becoming part of our community. Understandably, I have a lot of views to share not just about this Safety of Rwanda (Asylum and Immigration) Bill, but about previous legislation that we have had on the issue of migration.

Although I will focus my contribution on the amendments around the role of the European convention and the European Court of Human Rights, it seems to me that, in a debate which at times has become quite philosophical, there is a wide recognition among our constituents that shared sovereignty is often in practice greater sovereignty. I am a big fan of those fine British philosophers, Hobbes and Locke, who talk about the social contract. It is clear that, when we work closely with our neighbours, we achieve the most effective measures against widespread, illegal and irregular migration flows. We have already seen effective work with the French authorities to tackle the activities of some of the gangs in northern France, which has contributed to bringing down the numbers crossing the channel.

In my contribution, I will attempt to add some further evidence to our deliberations in a way that I hope will help encourage Ministers and to emphasise my support for taking forward the Bill in its unamended form, as I know the Government seek to achieve. When we look at the role of sheer sovereignty, many examples well beyond that of the European Court and the European convention on human rights have a significant bearing on the issue. We look at, for example, the United Nations convention on the law of the sea, which sets out the responsibilities that the United Kingdom and others have in the English channel in respect of refugee boats. That has frustrated the views of past Home Secretaries about how we might specifically tackle that issue, but we have yet to see a great deal of debate in this Chamber about why we should repudiate that convention, despite the fact that the International Maritime Organisation is based just across the river.

The international tribunal that deals with the convention is based in Hamburg and could similarly be described as a foreign court. Indeed, our own Judicial Committee of the Privy Council acts as the Supreme Court of Appeal for a number of countries and jurisdictions around the world that are not part of the United Kingdom and that are not subject to UK law. Indeed, despite the fact that both the European convention and our own law prohibit the death penalty, our own Privy Council Committee, drawn from parliamentarians in the United Kingdom, has heard appeals, such as the Chandler case of 2011 regarding the death penalty in Trinidad and Tobago.

It is clear that there is a long and established history of nations coming together to establish international conventions, processes and tribunals to administer the law in the interests of not only our harmonious relationships with each other, but the longer-term and greater benefit of our citizens. In respect of that particular problem, it is clear that the work done by the late James Brokenshire when he was the Minister dealing with illegal migration to secure, in particular, the ports and railheads in northern France has contributed to the problem we face today, in that the people smugglers have nowhere else to go, other than small boats, which the Bill aims to stop.

A good deal has been said about the best way we can deal with the role of the European convention on human rights in the operation of the Bill and other matters arising from it. We know the ECHR is a very broad organisation. It came into being after the second world war, as we have heard. My argument for why we should reject the amendments to its role, and in particular those around interim measures, is that we already have an extensive series of levers that we can exercise to shape things. Indeed, the reason those interim measures exist is not merely that judges in the court decided they would like to have them, but because parliamentarians from the UK and other member states, other politicians, Ministers and Governments have argued for that court to take on a greater role over the years in response to the challenges. Some of those challenges have affected, for example, British citizens caught up in the conflict in Ukraine, where those interim measures have potentially influenced the safe return of those people to the United Kingdom.

We have the Council of Ministers—the directly appointed members of our Government who sit together and determine what the priorities of that convention and court should be. We have the Parliamentary Assembly. A good deal has been said about the role of the judges, and it is worth remembering at this point that the judges of our Supreme Court in the United Kingdom and, indeed, our entire judicial process are completely free of political interference.

The judges of the European Court of Human Rights are directly elected by parliamentarians from their member states. Indeed, the legal committee of the European convention on human rights in the Parliamentary Assembly is chaired by my hon. Friend Sir Christopher Chope, who I would hardly describe as a bourgeois liberal. Like my hon. Friend Sir Robert Neill, I think its characterisation as a foreign court is no more accurate than it is to say that the international tribunal for the law of the sea is a foreign court or, indeed, that our Judicial Committee of the Privy Council is a foreign court when it deals with matters at the request of other jurisdictions, which it does on a regular basis. Having served on the Congress of Local and Regional Authorities of Europe, the local government element that looks at how those laws are handed down and implemented in practice, it is clear to me that we have a significant number of diplomatic and other levers that we can exercise if we feel that the court needs to move its practice in a different direction. It is also clear that the court has already begun that process in the light of comments from the United Kingdom and others.

My argument is that it is in our interest, because it benefits our citizens and our country, to maintain our membership of the European convention on human rights. The fact that we maintain our active support for and membership of that organisation underpins much of our public influence in the world and gives us the moral authority to ask others to do things. We can seek to address those issues using our elected Members of this House who sit in those assemblies, our elected politicians who sit in other assemblies such as the congress, and our academics and appointees who sit on bodies such as the Venice Commission, which advises on the gold standards for the conduct of elections. We can use all those levers at our disposal to convey our views to the court and the convention organisations about how we should proceed.

In respect of the judges themselves, it was very positive to hear from other hon. Members who have been part of that process, because we know that, contrary to what has sometimes been said, there is a two-stage process: for someone to be a candidate to be a judge, they have to meet the requirements for international judicial appointment in terms of both legal qualifications and relevant experience, and they are then put forward for election by the politicians who place them on the court. Their decisions, certainly in respect of the so-called pyjama injunctions, seem to be very little different from those that magistrates such as I and others across this country will be asked to take on matters of judicial warrants. We are asked to make a decision to enable an intervention to happen at a moment of urgency, and then in due course there is a longer period of opportunity for that to be considered by the courts and all others who may have a stake in it.

Photo of Diana R. Johnson Diana R. Johnson Chair, Home Affairs Committee, Chair, Home Affairs Committee 5:15, 17 January 2024

I am so pleased that we are hearing this very clear explanation of the court and the judges; after what has been said in this debate, it is very refreshing to hear. I thank the hon. Gentleman, who I also think is a lawyer—I do not know if he is a lefty lawyer, but I think he is a lawyer.

Photo of David Simmonds David Simmonds Conservative, Ruislip, Northwood and Pinner

I am grateful to the right hon. Lady. I am not a lawyer, but I served as a magistrate in this country. It is always my pleasure to say that I belong to that even more despised race of human beings, the Tory MPs, and that I was formerly a banker.

I think we are right to have some degree of concern in respect of what is said in the Bill and the amendments about the Human Rights Act. This House needs to strike the correct balance. It is a fundamental principle of British justice, which dates back at least as far as the Saxons, that people may not be subject to a penalty unless they have had the opportunity to be brought before a court, a properly composed judicial authority. Therefore, we should be concerned at the idea that in the United Kingdom we would exempt a group of people from access to our law on the basis of the method of their arrival here.

However, we need to balance that against the fact that people are dying in the English channel, drowning in cold water, and gangs are profiting hugely from that, which is fuelling all kinds of other types of crime. To an extent, we are a victim of our previous success in that the improved security in northern France has created and massively exacerbated the problem we face. That, for me, balances up the risk to a loss of human rights: we need to ensure that we have a really effective deterrent in place to address the problem that has arisen from that earlier success.

It is and remains my view, which I expressed in the debates on the then Illegal Migration Bill, that the point at which we will establish full control of our borders is the point at which we add an asylum visa to all the other types of visas we have, so that there is a single safe and legal route, controlled by the British Government and the rules set by this House, and if people arrive on our shores to claim asylum without having gained that permission first, they are automatically ineligible regardless of their method of arrival. That would mirror the process we already have in place for people who want to come here to work, to study, to marry or to invest in the United Kingdom. We still have not yet put in place an effective process and system that would enable us to do that.

It is clearly crucial, as the weather will soon begin to improve, the smugglers will soon be looking to invest in their stock boats and more people’s lives will soon be put at risk, that we keep our eyes on the objective of returning to something more like the Syrian vulnerable persons resettlement scheme, which was described by the UNHCR as a “gold standard” of international refugee resettlement. That is the model on which we based our Afghan resettlement scheme, whatever logistical problems that experienced, and this House has recognised it as the way in which the UK wishes to play a part in refugee resettlement around the world. However, we need to ensure that we deal with the specific problem that arises: small boats in the channel. For all the debates and well-intentioned arguments that we have heard, the Bill, in its unamended form, strikes the best balance available to address that particular problem and ensure that no one else dies en route to seeking asylum here in the United Kingdom. For that reason, I will support the Bill, unamended.

Photo of Alison Thewliss Alison Thewliss Shadow SNP Spokesperson (Home Affairs)

It is a pleasure to follow David Simmonds. It was refreshing to hear somebody on the Conservative Benches talking up the merits of an asylum visa. That would break the model of the people-smuggling gangs because it would give people a safe and legal route and safety and certainty. Nobody need be exploited by paying over everything that they own to get into a leaky dinghy in the channel if they could come here for safety and sanctuary by travelling as any of us would travel.

I understand from others in the Committee that Conservative Members are quite keen to wind up the debate early tonight because they are going to a Burns supper. I am not sure whether that is true, but it is certainly a rumour that I heard earlier. It made me think of some of the things that Robert Burns—I am a big fan of our national bard—might have to say to the Conservative party about the way in which it conducts its business. Let me start with:

“Man’s inhumanity to man,

Makes countless thousands mourn.”

I commend to the Committee the amendments tabled in my name, as well as those tabled by my hon. Friend Patrick Grady and my hon. and learned Friend Joanna Cherry. I will first address clause 3 on the disapplication of the Human Rights Act 1998. That Act was landmark legislation. It is woven into the fabric of our devolved institutions, and it underpins the Good Friday agreement. It should concern us all that a Government without any kind of mandate to do so start picking away the stitching. The Law Society said that the exclusion of the Human Rights Act to this extent is unprecedented.

Speaking of defending the rights of people to migrate, Robert Burns, who has a verse on just about everything, has one on the rights of highlanders against their lairds, who were not allowing them to migrate to Canada. He said:

“They! an’ be damned! what right hae they

To meat or sleep or light o’ day,

Far less to riches, pow’r or freedom,

But what your lordships please to gie them?”

We should give asylum seekers far more than this Government think they have a right to gie them.

Disapplying section 6 removes the obligation for courts and immigration officials to take into account human rights when assessing the safety of Rwanda. Disapplying section 3 limits the protections that courts can provide. Disapplying section 2 forces courts to ignore any European Court of Human Rights rulings of Rwanda as unsafe. Those are important protections: not only do they ensure people’s safety from Government, but they act as a check specifically on the Home Office—a Home Office that we know has long and consistent form in making serious mistakes with long-lasting and life-changing consequences. One need only reflect on the legacy of Windrush, TOEIC—the test of English for international communication—and the highly skilled migrant scandal to know the scale of Home Office incompetence. We need the courts to offer protection against the Home Office’s instinct to deport first and ask questions later.

Amendments 11 to 18 in the name of Robert Jenrick make an already unjustifiable situation much, much worse. Liberty has stated that they effectively remove the possibility of securing any remedy—much less an effective one—for the breach or threatened breach of rights arising from removals to Rwanda on the basis that it is an unsafe country. Robert Burns said in his “Slave’s Lament”:

Torn from that lovely shore, and must never see it more;

And alas! I am weary, weary O.”

I think we all feel that weariness about the circularity of the Government’s ridiculous arguments. It is unsafe for the refugees who get to come here from Rwanda, but somehow, it is safe enough for us to send people to Rwanda. It makes absolutely no sense.

This Government’s moving of people to Rwanda against their will is nothing but state-sponsored people trafficking. This Government are now in effect a criminal gang, moving people across the world. People moved against their will, with no regard to their safety and no recourse to appeal, to a country they do not know, involving money and profit—that sounds like people smuggling to me. Conservative Members either cannot see that, or frankly just do not care, because to them, these are not really people who we are talking about. They never have to see them; they never have to engage with them; they never have them crying across the desk in front of them at a community hall on a Friday. It is utterly despicable.

I turn now to clause 5, which deals with interim measures of the European Court of Human Rights. Interim measures are important and, according to the Court’s well-established practice, apply only where there is an

“imminent risk of irreparable harm”.

Clause 5 expands on the previous provisions of the Illegal Migration Act to ignore interim measures. The provisions that we passed under the Illegal Migration Act are not even in force yet—as I mentioned yesterday, it is only 181 days since that Act got Royal Assent, but here we are this afternoon, legislating yet again. Interim measures exist not just in international law, but in our own domestic law. As my hon. and learned Friend the Member for Edinburgh South West said, they often happen late at night. That is the nature of these things: they are last-minute protections for people who have no other recourse or remedy. They are not unusual, but refusing to comply with them—as the Bill sets out, and as the right hon. Member for Newark’s amendments demand—would be a clear and serious breach of international law. No mere technicality here: it would be a serious breach of international law.

Where does that leave us with the Government of Rwanda, whose Minister has been quite clear on the need for this agreement to be compliant with international law? Today, the Rwandan President Paul Kagame said to The Guardian that

“There are limits for how long this can drag on”,

and that he would be happy for the scheme to be scrapped entirely. The Government are on very shaky ground here. Are the Minister and the right hon. Member for Newark really going to have us believe that we can cross our fingers behind our back and nobody will know that the UK Government broke international law? They are having us on.

What is particularly daft about clause 5 is that the European Court of Human Rights has already responded to the concerns that UK Ministers have raised. In November last year, the Court provisionally adopted amendments to rule 39 of its rules of court on the procedure for interim measures, tightening up the circumstances and the procedures. The Court is also changing the procedure that Member after Member howled about earlier on, so that judges are no longer anonymous. I do not know whether, as a result of the amendments Conservative Members have tabled, those judges will be forced to disclose their preferred nightwear—perhaps that is a matter of discretion. The grievance that the right hon. Member for Newark, and the UK Government and their Back Benchers, howl about is being addressed, which makes this Bill even more of a waste of everybody’s time, money and energy. What damage does it do when the UK Government continue to behave like a petulant child, rather than engage constructively with the international organisation of which they are a part? They send a judge to the Court—they are part of this process. It is not somebody else’s Court: it is our Court. We are part of it.

Furthermore, placing all decisions on compliance with an interim measure in the hands of a Minister is a deeply worrying suggestion—a Minister is far less appropriate than a court. Maybe that Minister will also be in their pyjamas as they sign off a batch of human cargo in the dead of night, but since that will presumably be a British Minister in Union Jack pyjamas rather than a European judge in a blue onesie with yellow stars, Conservative Members will probably think that is perfectly acceptable. They care more about flags than about rights, and they have the cheek to call us nationalists. Deliberately breaching international law is no longer something we need assume a Minister of this particular Government would in any way hesitate to do. The Law Society of Scotland has added to the criticism of that power, saying that it contradicts the doctrine of the separation of powers between the Executive and the judiciary. As Sir Jeremy Wright pointed out, such a move would have serious foreign policy implications.

I support the amendment tabled by Mr Carmichael, and while I appreciate its intention, it is hard not to feel that the amendment in the name of the official Opposition is merely an attempt to water the clause down by having a Minister consult with their Attorney General. Given that Suella Braverman was the Attorney General before being Home Secretary and then signing the amendments tabled today that undermine human rights, I am not sure that is the protection that the official Opposition think it is. I note the various amendments and the efforts of Sir Robert Buckland and his colleagues to amend this Bill, but I think we all know that they are on a hiding to nothing.

Moving on to clause 8, the extent clause, the SNP has been very clear—very clear indeed—that we do not believe in this cruel and unnecessary Bill. We do not support it, and our attempt to decisively declare that this is not in Scotland’s name comes in the form of amendments 4, 5 and 32 to 34, in the names of my hon. Friend the Member for Glasgow North and my hon. and learned Friend the Member for Edinburgh South West. They attempt to remove Scotland from the territorial extent of the Bill and to require the legislative consent of the Scottish Parliament. As my hon. and learned Friend pointed out earlier, this has a significant impact on the ability of Scottish courts and our legal system to work effectively. We have asked for the legislative consent of the Scottish Parliament before this legislation comes into force. It is gey chilly in Scotland today, but I can say to the Minister that hell would freeze over before he obtained our legislative consent to this Bill.

Moving to clause 9, on commencement, amendment 41 seeks to separate the treaty from this Bill and ensure that the treaty itself receives the scrutiny it deserves, given the significance of the provisions made in that treaty. I do not know how many colleagues have examined the treaty, but I think it is quite right and quite appropriate that this House should do so in a debate, as the Home Affairs Committee has asked.

Lastly, because of the way that this strange process is laid out, I move to clause 1. It comes last—of course it does—in this topsy-turvy world of Westminster. The principle of the Bill remains abhorrent to us. International law is not something that states should disregard when it inconveniences them. Again, Burns has an important principle. In his letter to Mrs Frances Anna Dunlop, he says:

“Whatever mitigates the woes or increases the happiness of others, this is my criterion for goodness;
and whatever injures society at large, or any individual in it, this is my measure of iniquity.”

This Bill is riddled with iniquity and harm. We rightly call out states that abuse human rights, ignore their courts and treat people in a dehumanising manner, and there is absolutely no justification for the UK doing so. It is merely a bogeyman to distract the public from the chaos that the Conservatives have presided over all these years. Our amendments 39, 40 and 42 to 44 seek to assert the importance of complying with our international obligations to abide by the Human Rights Act. It is astonishing—astonishing—that we are required to do so, but as the Bill’s preface sets out, the Bill is very much incompatible with convention rights, and this Tory Government wish to have us carry on regardless.

The Right Rev. Sally Foster-Fulton, the Moderator of the General Assembly of the Church of Scotland, has been among many voices calling out this appalling legislation. She says:

“This bill threatens to destroy that”— the UK’s—

“reputation, reducing our ability to speak with any credibility on injustices and human rights abuses across the world. It also sets a worrying precedent that fundamental human rights can be eroded and denied to some.”

Far be it from me to rush to the defence of the UK’s international reputation, but I urge Members to consider the wider implications of this cruel policy. It is not domestic; it is international, and it has wide-reaching implications. Scotland wants no part of this failed, expensive and cruel Rwanda plan. We look forward instead to the day that we are no longer beholden to this insular and damaging UK immigration policy, and to this Parliament that does not speak in our name. We want Scotland to take her place in the world with all of the responsibilities that that entails in the international community. To finish, again, with Burns:

“For a’ that, an’ a’ that,

It’s comin yet for a’ that,

That man to man the world o’er,

Shall brothers be for a’ that.”

Photo of Nicholas Fletcher Nicholas Fletcher Conservative, Don Valley 5:30, 17 January 2024

It has been a very long debate. I have listened with intent to everybody who has spoken, and I admit to learning quite a lot today. Unfortunately, not everybody who has spoken is still here to listen to me, although I have listened to them, but that tends to happen quite a lot in this House. People speak for a very long time at the beginning and, unfortunately, they never get to listen to others.

It is mainly lawyers who have spoken. I often thought, before I became a Member of Parliament, that this place would be best if full of lawyers. That is what it should be about—we are making law—so maybe that is right. I was corrected by my right hon. Friend Sir Jacob Rees-Mogg, though. I did not know I was going to speak with him today, but he told me, “It is wonderful that people like yourself, Nick, are here.” After listening to what I have heard today, and having listened to what I have heard with regards to the recent Post Office case, it seems to me that lawyers are just able to talk at this level continually, back and forth and back and forth. In the Post Office case, £60 million was apparently given to looking after the postmasters, and £40 million of it was spent on lawyers.

What I am trying to get at is that, for all of the talking that has happened, the people who put us here are still struggling like mad to understand why, when we put people on a plane, somebody from Strasbourg can say, “No, they don’t have to go,” and we all watch aghast that this is happening. They struggle to understand why, as was mentioned in The Telegraph last week, someone who had been caught and convicted for producing £500,000 of cannabis could not be deported because he could no longer speak his mother tongue. They cannot understand why we cannot deport an immigrant who has taken £8 million from organised crime and tried to smuggle it out of this country because of his human rights. Human rights are obviously extremely important, and anyone who mentions coming out of the ECHR automatically gets lambasted by many people on the Opposition Benches, but unfortunately, the people who put us here cannot understand why these things are happening.

Whatever happens, these judges that we are talking about, who we have supposedly elected, need to come to Doncaster and see what is happening there, as I said in my speech before Christmas. We should be able to have conversations like this without being heckled, and without being called out on Twitter every time we say this. That is because of the nastiness that comes from the left, which stops these conversations happening; it stops us being able to have decent conversations and debates.

I listened to my colleagues who were sitting on the back row and they speak a lot of sense—they really do—and I take it on board, but I have hon. Friends who sit with me who want to use these amendments to tighten up the Bill. When I hear about what we are trying to do I have to agree with them that it needs tightening up, because we cannot keep on putting people on a plane and then taking them back off again. We cannot keep on letting people come to this country and abuse the system, using taxpayers’ money to defend them while we are giving them board and lodgings in hotels next door to schools. We have got to stop this happening.

I support the amendments because I want to help the Government with their promise to stop the boats. If we stop the boats, we stop the tragedies that are happening out at sea. Five people died last week; we need to make sure that that does not happen again.

We need to stop the boats because we are put here by the taxpayers of this country—by my and our constituents —and we need to make sure that they are getting value for money for every pound that is taken in their tax. When we speak about human rights, we have to remember the rights of the British people who put us here. I will support these amendments because I have to do whatever I can to make sure that the people who put me here are treated fairly and their rights are considered above anybody else’s.

Photo of Tom Hunt Tom Hunt Conservative, Ipswich

It is a pleasure to contribute to this incredibly important debate. I was very happy to sign the amendments tabled by my right hon. Friend Robert Jenrick—amendments 11 to 18 and 23 to 25. I was also happy to support his amendments and the amendment from my hon. Friend Sir William Cash yesterday. I have concerns about the Bill as it stands. I want exactly the same thing as the Minister, which is for the boats to stop, and they will only stop if we have a deterrent. I have not seen an example across the world of this situation being properly dealt with without a deterrent, and it is critically important that we have one.

It concerns me that the exceptionally narrow grounds for individual appeal will not be as narrow as the Government perhaps hoped. That is potentially why we heard talk about the 150 judges yesterday, which caused me some alarm. In some respects, why are some of us on the Government Benches so cynical? Why do some of us have so many concerns that this Bill may not work in the way we hope? It is experience, and the fact that we have voted for two Bills before—the Nationality and Borders Act 2022 and the Illegal Migration Act 2023—that we hoped would work comprehensively but have not done so. It is right that the Government highlight the reduction in small boat crossings by a third, but it is nowhere near enough. We will not be thanked by the people of this country for not smashing those crossings comprehensively.

Photo of Tom Hunt Tom Hunt Conservative, Ipswich

I will not be giving way.

I will be supporting amendment 11 in relation to the Human Rights Act. I will also support the amendment of my right hon. Friend the Member for Newark on the ECHR. I remember vividly the situation in June 2022. I also remember the referendum we had in 2016, where the majority of people in this country voted to leave the European Union. They did so because they wanted the Parliament of this country to be fully sovereign; they did not want it to be frustrated by foreign organisations, whether the EU or the ECHR. The way in which that happened in June 2022, to a policy that has majority support from most of the people in this country, was devastating.

More generally, it is important that we respect the discussions on Second Reading, when the Prime Minister said that he wanted sound international legal arguments for amendments. That bar has been met, and my right hon. Friend the Member for Newark has explained how that is the case. Fundamentally, I have regretfully come to the conclusion as a Member of Parliament that we should leave the ECHR. My prediction is that, in time, we will. Many of the debates associated with the ECHR are similar to the debates around Brexit. Those who originally wanted to leave the EU were branded extremists and a minority. The same arguments were made, such as, “Let’s reform it from the inside.” We will try that again with the ECHR, and I think we will be unsuccessful.

It is the supranational nature of the ECHR that I am deeply uncomfortable with. We have already seen how that operates. Some Members have made the point that it is not a foreign court because we have ownership of it. People made the same argument about the European Union, and the MEPs going to Brussels. Ultimately, when it came to that decisive referendum, most people who voted on that question disagreed with that view and we rightly left the EU. It is not right and the issue of the ECHR opens up a serious democratic deficit, given that we left the EU. The principles for why we did are live in this debate today, and we must listen.

On the issue of illegal migration, like on the issue of net legal migration, we are playing with fire. The level of frustration felt by millions of people in the country is extreme, and the warnings are there from across of the world about what happens if mainstream parties do not deal with people’s legitimate concerns about mass migration. If the Conservative party does not responsibly and robustly deal with it and finally stop the boats, the warning signs are there for what might happen.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

Just to take my hon. Friend’s point, with which I completely agree, even further, does he agree that the fact that often is not mentioned is that we are a small island with a huge population and an entire infrastructure created in the 19th century? For all these reasons we have that much more pressure on our social services, our infrastructure, our planning and so forth.

Photo of Tom Hunt Tom Hunt Conservative, Ipswich

My hon. Friend is absolutely right. There are intolerable pressures being placed on this country through mass legal migration and illegal migration. It is right that more and more of my constituents are seeing the link between that issue and pressure on public services, strains on social cohesion and other things. Immigration at sustainable levels with integration is a force for good. Immigration at unsustainable levels without integration causes intolerable troubles for the people of this country. That is something they want to guard against.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

That view is held not just by my hon. Friend, by many in the House and by many in the country, but by many countries in Europe. Mass migration is now seen as an issue of salience by countries right across Europe and the wider world. He is far from alone: he is speaking for the people.

Photo of Tom Hunt Tom Hunt Conservative, Ipswich

We have heard lots of arguments about the ECHR and about Winston Churchill forming it. That has been defeated time and again but continues to be wheeled out by Opposition Members. I do not agree. I do not think for a moment that if Winston Churchill was alive today, he would be comfortable with the way in which today’s ECHR operates and its supranational nature.

Ultimately, I applaud the Prime Minister’s desire to stop the boats, but it is not enough just to try, and it is not enough to be just 80% or 90% of the way there. We need to be 100% of the way there. We have seen previously that any chinks in the armour of any Bill designed to tackle this issue will be ruthlessly exploited. We share the Prime Minister’s desire and we want to work with him to get a Bill that we can all unite behind to stop the boats.

Immigration is not just an important issue. I honestly believe that it has become an existential issue. Ultimately, it is important that we unite behind the Bill, but it needs to work. The question is: do we think that the Bill will work or not? Do we think it can be strengthened? For all those reasons, I will vote for the amendments tabled by my right hon. Friend the Member for Newark with a certain degree of pride. I believe in the sovereignty of this country, I believe in listening to the people of this country, and I believe in narrowing the unhealthy disconnect there is between the views of the majority of people on immigration and where we are at the moment.

Photo of Bob Seely Bob Seely Conservative, Isle of Wight

I am sorry to have got to the debate a bit late. I will talk in general about some of the amendments; I am sympathetic to a lot of them. I always listen to my right hon. Friend Robert Jenrick, who is always eloquent on this subject and probably right in what he says, but I will explain why, despite my concerns about the ECHR, I will not support his amendments and the other amendments. That is because we are dealing with the art of the possible as well as the art of what is right and wrong.

I listened to my hon. Friend Tom Hunt talk in apocalyptic terms, but he was right to say that there is a great deal of angst and concern. According to the recent poll, in my patch, like in his, more than 50% want people sent back without a right of appeal. I am therefore sympathetic towards that argument. I am also sympathetic to the concern of my right hon. Friend the Member for Newark that the system will not work. But we are dealing with the art of the possible, and when my hon. Friend the Member for Ipswich says that we need 100% certainty and not 80% or 90%, I get a bit concerned.

Photo of Alun Cairns Alun Cairns Conservative, Vale of Glamorgan

Does my hon. Friend recognise that we should be focusing on the practicalities of what is achievable and recognise the tensions, in a broad debate, between what we can legislate for and what in reality will work within the limitations and the context, be that in respect of the courts or colleagues in this place, as well as what will work for Rwanda?

Photo of Bob Seely Bob Seely Conservative, Isle of Wight

Absolutely. If the Rwandans turn round and say, “We’ve changed our minds,” we will be in a world of pain. I trust the Government. I think they have been naive in the past, but for Government Members to work on the basis that we will not trust our own Government and give them zero credit is going way too far in the other direction.

Photo of David Simmonds David Simmonds Conservative, Ruislip, Northwood and Pinner

My hon. Friend is making a series of important points. Does he agree that one of the reasons why our constituents are concerned to see the Bill pass is the enormous impact that very high levels of migration have had on local government finance? Given that he represents an island—one of the 31 local authorities in the south-east of England that volunteered to be asylum dispersal areas—does he agree that other parts of the country might do well to step up to the plate, too?

Photo of Bob Seely Bob Seely Conservative, Isle of Wight

My hon. Friend makes a good point. Other parts of the country would do well to step up to the plate—I thank him for that comment.

Returning to what my hon. Friend the Member for Ipswich said about an 80% or 90% solution versus a 100% solution, as far as I can see there are four outcomes for today, which I want to discuss in brief detail. First, the Bill works in a wonderful way and everything is perfect. Do I think that is likely? I hope it is; I live in hope, but I share my hon. Friend’s concern.

Photo of Jess Phillips Jess Phillips Labour, Birmingham, Yardley

Turn around and face the Committee!

Photo of Bob Seely Bob Seely Conservative, Isle of Wight

I am so sorry, I thank the hon. Lady.

Option 2 is that some of the legal appeals work and some do not, but we begin to get the planes moving, sort of, this summer. That is a reasonable success, and we are heading in the right direction with other measures. Option 3 is that it does not work. We get some brownie points for trying, but it is a bad outcome. Option 4 is that we vote down the Bill today, there are no flights at all, the left is in clover and the liberal elites are smiling all the way to the next election. A hundred colleagues on the Government Benches will return, and there will be no one to challenge woke or large-scale illegal immigration whatsoever.

Photo of Tom Hunt Tom Hunt Conservative, Ipswich

What will make the liberal elite the happiest will be to see the Bill strangled in the courts because of its weaknesses. What does my hon. Friend think about the amendments tabled by my right hon. Friend Robert Jenrick, who perhaps knows this issue better than anyone else?

Photo of Bob Seely Bob Seely Conservative, Isle of Wight

My hon. Friend makes a point about the happiness of the liberal elites, but he is giving a subjective opinion about what he thinks they would love. Actually, what they would love most of all is for the Bill to die tonight. We must get the Bill through to give us any form of chance. As I said, there are four options. Option 1: it works perfectly—it may not. Option 2: it is likely to work in part—we can live with that. Option 3: it fails—that is bad, but we are trying. Option 4: we kill the Bill tonight—we can all go and look for new jobs. That is what we are facing.

I want to see my hon. Friend and many others return, but we need to give people the best chance of delivering on the Bill. The best chance of that is to try to push the Government in a conservative direction—I give my hon. Friend that—but only as far as they can go. I am on the same side of the argument as my hon. Friend on this, but my difference is that I will give the Government the benefit of the doubt to get the Bill through Third Reading. We have to get the Bill through. Even if my hon. Friend does not vote against it but is willing to abstain, that will be an improvement.

Photo of Steve Double Steve Double Conservative, St Austell and Newquay

Is it not important to note that if the Bill is killed off on Third Reading, there is no opportunity to introduce another Bill to address this issue in this Parliament? We will be stuck in the current situation going into the election.

Photo of Bob Seely Bob Seely Conservative, Isle of Wight

I thank my hon. Friend for that important point. In the WhatsApp group in which we were chatting about this earlier, one of our north-east colleagues posted the idea that we could have a new Bill. I find that to be truly living in la-la land. The idea that everyone on the Government Benches would agree to a new Bill once we have killed this Bill is for the birds. It is this Bill or no Bill. It is this Bill or no chance. We have to face reality.

My hon. Friend the Member for Ipswich spoke eloquently about the ECHR, and I want to touch on it because it is important. I am not a fan of it. Our freedoms and our liberties are not because of the ECHR. They are not because a Bulgarian judge gets out of bed at two in the morning to strike down democratically elected law. There is nobody in this House as willing as me to rewrite our relationship with the ECHR, but this Bill is not the time to do it. This is an argument for our manifesto. But if my hon. Friend were to suggest that what we need to do is make the ECHR advisory so that we fundamentally change our relationship and a vote in Parliament can overrule the ECHR, he will find no bigger champion than me. In the same way, we could look to review the Human Rights Act. I am as bored as him of hearing Ministers say in private, “We can’t do this, because of the Human Rights Act.” I pull my hair out. We are in Government. We should change the Human Rights Act if we do not like it. We should not use it as an excuse for inaction.

Photo of Kevin Foster Kevin Foster Conservative, Torbay 6:00, 17 January 2024

I thank my hon. Friend for giving way. I am listening to his points with interest. As one who could be seen as one of the architects of the Rwanda scheme, along with my hon. Friend Tom Pursglove and my right hon. Friend Priti Patel, I would have preferred to see the Bill with the amendment from my hon. Friend Sir William Cash and I agree with many of the points made by my right hon. Friend Robert Jenrick. But while I would prefer the Bill to go further, it is a Bill that could still work.

Photo of Bob Seely Bob Seely Conservative, Isle of Wight

I agree and I thank my hon. Friend for his comments. If there was a chance of it moving further, then yes, but I do not think there is. The issue is: it is this Bill or no Bill; it is this Bill or no chance.

To return to what my hon. Friend Tom Hunt was saying about the ECHR, yes I accept and I agree, so let us reorient our relationship with the ECHR. Let us reorient our relationship with these European laws. Let us look again. I do not like judicial activism any more than anyone else on the Conservative Benches. Judicial activism is the enemy of democratic accountability if we have foreign judges who are willing to get up in the middle of the night and overrule law passed in this House, by this democratic body answerable and sovereign to the British people. So, let us talk about changing the ECHR, but we should not be doing it now.

Photo of Matthew Hancock Matthew Hancock Independent, West Suffolk

On precisely that point, is there not a further practical addition to my hon. Friend’s argument, which is that overriding the ECHR in this instance, as opposed to following a broader debate, may lead to the Rwandan side being less enthusiastic and pulling out of the deal, practically sending us back to square one?

Photo of Bob Seely Bob Seely Conservative, Isle of Wight

I thank my right hon. Friend for that intervention. It is good to see him.

On rule 39, the pyjama injunction, where judges get out of bed in the middle of the night, I do not even know why our Government are still agreeing to abide by these rules. As far as I can see, it should be a matter of principle that rule 39 injunctions are advisory until such time as we wish to adopt them. Maybe the Minister has something he would like to tell us about that. It would be wonderful if he did. As part of the conversation, we are in a period of flux. As our electorate rightly become more concerned about issues relating to crime, sovereignty, and legal and illegal immigration, we start to talk about our relationship with the European human rights conventions. I am up for that, but now is not necessarily the time to do that.

Photo of Alun Cairns Alun Cairns Conservative, Vale of Glamorgan

My hon. Friend is making an extremely important point. Before he moves on to the last part of his speech, I want to press him a little further on the ECHR, as well as the comments made by my hon. Friend Tom Hunt. Does he recognise that some of the fundamental changes in the amendments are so great that they warrant a separate piece of legislation even if they were to come forward, so that this House could consider them in full and in detail, rather than them being attached to an extremely important Bill, where they could undermine its objectives as well as detract from the wider debate on the ECHR?

Photo of Bob Seely Bob Seely Conservative, Isle of Wight

I quite agree. I think that we are in danger of reverse-engineering a load of opinions on the European convention on human rights into a single Bill that is influenced by the ECHR, but is fundamentally about something else. I should like to see greater debate about the ECHR. I should like to see greater debate about the relationship between our laws and what we do about international conventions, being mindful and respectful of them while at the same time understanding—certainly this is my view—that our freedoms, our privileges and our rights as Britons do not come from post-war European documents.

We should remember where the ECHR came from. It was effectively written in part by ourselves to help Europe to recover from the appalling destruction caused by fascism, but also the threat of totalitarian socialism and totalitarian communism. Since then, we have seen what was a good document—partly because it was written by us—whose purpose was to help Europe to recover and get its legal and political dignity back become a target of politicised judicial activism. I believe that something that is a target of politicised judicial activism should not necessarily be overruling our own traditions, but I do find a tendency for that to happen.

Photo of David Simmonds David Simmonds Conservative, Ruislip, Northwood and Pinner

My hon. Friend is, once again, making some powerful points. Does he recognise that the number of interim measures that are handed down in respect of the UK is extremely small? In fact, in some years no such interim measures are granted. None the less, we need to review the way in which measures that are not specifically described in the original documents that underpin the European convention on human rights have evolved. It is therefore right that although it remains entirely non-binding and how to respond to those measures remains a decision for a Government Minister, we need to ensure that our courts and our system understand the role that Parliament expects them to play.

Photo of Bob Seely Bob Seely Conservative, Isle of Wight

My hon. Friend has made a valuable point, and one that I was about to come on to. Why do some people in this country and some political groups, generally on the left, idealise international courts as if they were fonts of Olympian wisdom when, in my view, many of their judgments are highly political and highly tendentious? They seem to me to constitute an exercise in studied disrespect for the English common law, which I consider to be one of the great wonders of human civilisation and achievement, along with monotheism and one or two other things. We seem to be allowing the international courts to overrule those extraordinary achievements—all these great judges from on high, who do not come from traditional judicial systems anywhere near as strong or as noble as ours.

Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee

I have been agreeing with the basic thrust that it is the Bill or nothing, but may I gently say something to my hon. Friend about the European Court of Human Rights? If he looks carefully at its case law, he will see that British common law traditions have, in fact, had a significant impact on the jurisprudence of that Court. It does not follow the pure civil law system of the continent, as those who have served on the Parliamentary Assembly of the Council of Europe will know. It has actually moved to a hybrid system, largely because of the influence of British jurists.

Photo of Bob Seely Bob Seely Conservative, Isle of Wight

My hon. Friend has made an excellent point. He is, of course, an eminent lawyer, and I, frankly am not. [Hon. Members: “There is still time!”] I am tempted to say, “I will stop digging.”

My hon. Friend is right in saying that we have had an influence, but I understand from what I have seen and read that there has also been the influence of a far more rationalist system on our own common law, and I do not consider the impact on EU law and casework on our system to have been entirely beneficial and entirely helpful.

Photo of Robert Buckland Robert Buckland Chair, Northern Ireland Affairs Committee, Chair, Northern Ireland Affairs Committee

I am glad that my hon. Friend is making this point. I do not blame him because it is easy to elide the two now, but EU law and the operation of the Luxembourg Court is a very different discipline from what happens in Strasbourg. That Court is enjoined to interpret EU law, and what it says is gospel and we have to follow it. That is not the case with the Strasbourg Court. My hon. Friend has talked about case law. I will not put him on the spot too much, but can he name the cases that have posed a problem? Where are they?

I can help my hon. Friend. The judgment in the Hirst case, the prisoner voting case, was pretty poor. In fact, it was a bad judgment. Then there was the judgment about whole-life sentences, which we sorted out in the Court of Appeal: problem solved. The Abu Qatada case was a long saga, but we sorted that out too. Those are the only three problems we have had in 10 years, and that does not amount to a hill of beans.

Photo of Bob Seely Bob Seely Conservative, Isle of Wight

I am delighted that my right hon. and learned Friend has intervened, because those are exactly the three points that I was about to make to complete my case. I thank him for doing that for me. I accept the points that he makes, but I also accept that we are a sovereign Parliament and that our relationship with many of these institutions has changed. I do not think our relationship necessarily reflects that change. I will leave it at that, but I accept his point and also the wisdom with which he made it. At this point, unless I have any more interventions, I shall wind up.

Several hon. Members:

rose—

Photo of Roger Gale Roger Gale Deputy Speaker and Chairman of Ways and Means

Order. Just before we proceed and I call Jerome Mayhew, can I gently say that it has not escaped the notice of the Chair that a significant number of Members have wandered in, after many hours of debate during which they have not been here, and then sought to participate? Technically, the Chair has no power to control that, but Members must understand that we deprecate this. I take a very dim view of it as bad manners. I hope that is clearly understood. Tom Hunt sat in his place for five hours waiting to speak. I believe that any other Member who wishes to speak in a debate should afford the Committee the same courtesy.

Photo of Jerome Mayhew Jerome Mayhew Conservative, Broadland

Thank you, Sir Roger. I should start my speech with a personal apology for not having been here for the full course of this debate. I very much wanted to be here, but I had duties in Westminster Hall in two debates during the course of the afternoon which prevented me from taking a full role in this debate. I am grateful to you for nevertheless agreeing to call me in what is obviously a very important debate. I have heard sufficient of the back and forth of the debate to know that there has been criticism from the Opposition Benches that the Bill goes too far, and that there are even some words of advice and criticism on these Benches that it perhaps does not go far enough. Before I get down into the nitty-gritty of the amendments, it is worth going back to base principles and looking at the fundamentals of why the Bill is necessary in the first place.

It is without doubt that every Member of this House, irrespective of their party loyalties, must agree that the current position in relation to small boats crossing the channel is deeply wrong and has to be addressed. What is happening at the moment is just not fair. We have seen the small boats programme on our television screens for the last two or three years, ever since we plugged the last gap in our external borders by making it harder for illegal immigrants to get on to lorries or on to the Eurostar—that goes back almost a decade, in fact. The business model is such that where we restrict one point of illegal access, the model will seek out the next weakest point in the border of our country, and right now that is small boats crossing the channel.

However, these are not individuals buying dinghies and setting off across the channel. We all know that this is a massive commercial opportunity for organised criminal gangs making masses of money—tens of millions of pounds—from the misery of others. That money is going into organised crime, which then finds a vent in other crime, both in Europe and in our own country. Criminal gangs are imposing violence on the vulnerable people who are then exploited by them in their crossing of the channel. It must be right that any responsible Government would take steps to challenge a set of circumstances where vulnerable people are being exposed to risk and violence, not only the risk of death as they cross the channel—my hon. Friend Nick Fletcher said that there were five deaths just last week as a result of this dangerous process—but the violence of the criminal gangs imposing their will on these migrants.

Photo of Virendra Sharma Virendra Sharma Labour, Ealing, Southall

Does the hon. Gentleman not agree that the massive amount of money wasted on the Rwanda plan would be better spent on creating safe, legal routes and clearing the backlog so that those fleeing persecution can build a better life in a country that is proud of its humanitarian actions, as so many have in Ealing, Southall?

Photo of Jerome Mayhew Jerome Mayhew Conservative, Broadland 6:15, 17 January 2024

I am grateful for the hon. Gentleman’s intervention, which allows me to highlight the Government’s success in reducing the backlog, as the Prime Minister outlined at Prime Minister’s questions.

I do not shy away from the point that the Rwanda scheme is expensive. If the cost were calculated as the amount spent per person flown to Rwanda, it would be a very high cost indeed, but that is not the point of the scheme. The idea of the scheme is not that every single person who illegally crosses our border will be shipped to Rwanda but that it will act as an effective deterrent. If we send a few people to Rwanda, the criminal gangs and, more importantly, the people who pay them large sums of money will get the message that paying the criminal gangs to be ferried across the channel is no longer an effective way to gain access to the United Kingdom. If that is successful, as I believe it will be, it will be very sound use of money because it will not only prevent additional cost to our society and public services but will protect the lives of some of the most vulnerable people in the world, while righting a gross unfairness in our asylum system.

Photo of Alun Cairns Alun Cairns Conservative, Vale of Glamorgan

My hon. Friend is making an extremely important point, particularly on the costs. Is he aware that the President of Rwanda has been reported as saying that the UK could well be refunded if all the resource is not used because of challenges along the way?

Photo of Jerome Mayhew Jerome Mayhew Conservative, Broadland

I was not aware of that, but it adds grist to the mill and strength to the Government’s argument for proceeding with the Rwanda policy.

Photo of Luke Evans Luke Evans Conservative, Bosworth

My hon. Friend took an intervention from Mr Sharma, who talked about safe and legal routes. One of the biggest problems is that we have not heard how many, where from and what they would look like. There are supposedly 100 million displaced people across the world. If 1% of them decide to come to the UK, that is 1 million people who have to be processed and found a country. This is a worldwide problem. If we do it as an individual country, we would create and facilitate a problem not only on our shores but on the shores where we open those centres. Does he believe the Opposition have a plan for where the centres would be, how they would be manned, how much they would cost and what those safe and legal routes would look like, especially when people are leaving the safe country of France?

Photo of Jerome Mayhew Jerome Mayhew Conservative, Broadland

The phrase “safe and legal routes” feels right, doesn’t it? It feels like we should be in favour of safe and legal routes and, speaking personally, I think they are part of a wider solution to immigration. My hon. Friend says there may be up to 100 million people currently seeking asylum. From memory, I think the figure from the United Nations report is actually 108 million.

Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin

My hon. Friend is making an excellent speech. This Bill is dealing with a lot of the pull factors; at least, it mentions or implies approaching those in a more constructive and positive way. I know that he serves on the Council of Europe delegation. On the push factors, does he agree that this domestic policy should not be disaggregated from foreign policy and our overseas aid policies? Let us look at the examples of sub-Saharan Africa or the Sahel, where the French have recently exited, or are about to do so, and where the UK has an important counter-terrorism presence. In those places, fragile states that are becoming failed states are causing more push factors. In addition, some adversaries of this country, such as Russia, through its proxies in Africa, are trying to disrupt democratically elected Governments in order to create a migration crisis; they are happy to see people coming up through north Africa and into Europe. Given his international experience, does he agree that we have to have a more holistic view of this policy in the context of global foreign policy?

Photo of Jerome Mayhew Jerome Mayhew Conservative, Broadland

I am grateful to my right hon. Friend for those excellent points. They highlight one reason why the merging of the Department for International Development with the Foreign and Commonwealth Office to form the Foreign, Commonwealth and Development Office has the potential to link those two areas of policy. The challenge with push factors is substantial and it is that they have only just started. He is right to refer to malign actors such as Russia in the short and medium terms, but there is a much bigger factor that this House needs to consider over the next 20 to 50 years: climate change. The likelihood is that there will be very significant mass migration from sub-Saharan Africa when large areas of countries, perhaps entire countries, may become functionally uninhabitable through water scarcity and heat. What we have seen currently in push factors will be nothing compared with what we see in the future, so it behoves us, as a responsible Government, to design and implement an immigration policy that is fit for purpose, not just for now, but for the future.

Photo of Bob Seely Bob Seely Conservative, Isle of Wight

I find it frustrating when people, especially Opposition Members, talk about the need for safe and legal routes. As a statement of fact, there were 10 such routes into the UK in the past decade—there are currently nine—which have been responsible for 50,000 refugees coming to this country since 2015. Overall, the number of refugees or people granted asylum in this country from 2015-16 is approaching the population of Manchester; we are talking about a number in the upper 400,000s—that is twice the size of the city of Portsmouth. When Opposition Members talk about the need for safe and legal routes, I assume that none of them has any clue what they are talking about; would my hon. Friend care to comment?

Photo of Jerome Mayhew Jerome Mayhew Conservative, Broadland

I am pretty settled with that last sentence. We have been a place of safety for about 80,000 from Ukraine; we have opened our arms to some 250,000 British nationals of Hong Kong descent; we have had the Syria programme, which I believe involved about 20,000; and we have had the Afghan resettlement programme, which involved about 18,000 to 20,000. All those have been safe and legal routes. The big difference is that the British Government, representing the British people, decided that those were the people we wanted to help. They were the most vulnerable, and we took the decision, not criminal gangs from abroad.

Photo of Luke Evans Luke Evans Conservative, Bosworth

It is exactly that: the British people decided. Does my hon. Friend believe that the right approach is for Government to consult with local authorities on how many asylum seekers and refugees they can support, enabling them to come up with a number that Parliament will be able to vote on? That is pragmatic and practical while warm and welcoming to those who need help.

Photo of Jerome Mayhew Jerome Mayhew Conservative, Broadland

My hon. Friend makes another good point. We must not forget that our asylum policy depends on the support and acceptance of our people. If we have a policy that is rejected by people because they feel it is unfair and does not represent their views, then we run the risk of throwing the baby of asylum and welcoming people with vulnerabilities from around the world out with the bath water. The Bill helps to maintain a welcoming stance to asylum seekers who are decided on by the Government, while maintaining public support for the policy as a whole.

Several hon. Members:

rose—

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham

As the author of the safe and legal routes amendment to the Illegal Migration Bill, I will shed a little light on this matter. My hon. Friend is right that we have generous safe and legal route schemes already, but they are mostly limited to set groups of people. The importance of the schemes the Government are working on is that those people who are genuine asylum seekers and genuinely fleeing persecution can be accommodated in some way, but those schemes would be subject to a cap. Although there are hundreds of thousands—millions—who might want to come here, the Illegal Migration Act sets a cap for safe and legal routes so that it is the number of people we can cope with and they are the right people. We will take in the most vulnerable people, separating them out from the people who have no credible case for coming to the United Kingdom, which is why the Bill is so important.

Photo of Jerome Mayhew Jerome Mayhew Conservative, Broadland

I am in accord with every point my hon. Friend made. There is real anger on the doorsteps. I am lucky to represent the seat of Broadland and Fakenham in Norfolk, and I was knocking on doors just before Christmas. Of the 100 or so doors I knocked on, I had 20 decent conversations with constituents. This is rural Norfolk, but 19 of those 20 conversations raised illegal migration as a key issue—that is the reality of the views of the people I represent. We would be mad in this House if we did not accurately reflect those views. I will take a final intervention.

Photo of David Simmonds David Simmonds Conservative, Ruislip, Northwood and Pinner

Will my hon. Friend join me in paying tribute to the East of England Local Government Association and the East of England Strategic Migration Partnership? They have done amazing work supporting the resettlement of British passport holders from Hong Kong, Syrians coming through the Syrian resettlement scheme and Ukrainians coming through the Homes for Ukraine scheme. Does he agree that it would be more acceptable to his constituents to hear that those individuals have come to the UK through arrangements agreed with local authorities that have the capacity to support them, rather than, as I witnessed when I visited the Jungle camp in Calais, through rich smugglers, who say to people that the more they can pay, the more likely they are to be able to break into the UK through a backdoor?

Photo of Jerome Mayhew Jerome Mayhew Conservative, Broadland

My hon. Friend is exactly right. My constituents are generous minded and welcoming, but they do not like inherent unfairness. Typically, those who arrive are young men aged 20 to 40. Where are the women and children? Those young men are relatively rich because they have been able to pay £3,000 to £5,000 to the smugglers. Worse still, they may be indentured and end up in slave labour, trying to pay back a debt that will never be repaid. We have a terrible situation that needs to be addressed.

The Government have taken effective action that we can see in hard data from last year, not just because I say it. At a time when migration to the European Union is going up by about a third and to Mediterranean countries by fully 80% last year, the suite of interventions that the Government have already made have been so effective that they have reduced migration in this country by 36%, which is over a third. That is not because of Rwanda, but in addition to Rwanda. It is because we have increased French patrols on the coast by 40% and we have tracked down boat supplies in places like Romania, removing the ability of the gangs to physically get people across the channel.

We have increased raids on illegal workplaces, which were part of the pull factor for illegal migrants. More importantly, we have cut a deal with Albania, which has meant that, whereas the year before about 20,000 people who came from Albania claimed asylum, with the returns policy recognising that Albania is a safe country—just as Rwanda is, by the way—the number of potential migrants coming across the channel has decreased by more than 90%. If we want an example of why the Rwanda policy should work, we need only look at Albania and at the results that this Government have already achieved. I commend the Government for their hard work, the hard yards, and the incremental gains, which show that, although we are not all the way there, we are seeing 36% reductions already and counting. Our proposals in this Bill for the Rwanda relocation will make an enormous difference.

We have heard from Government lawyers that the current process is likely to reduce the number of appeals by 99.5%. Yes, there may be the odd one who continues to appeal, but that last-minute process of repeated appeals will be removed. That is why I do not feel the necessity to support the amendments and will be supporting the Government.

Photo of Michael Tomlinson Michael Tomlinson Minister of State (Minister for Illegal Migration) 6:30, 17 January 2024

With your permission Sir Roger, may I on behalf of His Majesty’s Government pass on my sincere condolences to the family and friends of Sir Tony Lloyd, the former Member of Parliament

Photo of Roger Gale Roger Gale Deputy Speaker and Chairman of Ways and Means

Order. I am sorry to have to interrupt on such a sensitive issue, but Mr Speaker intends to make a statement about that later.

Photo of Michael Tomlinson Michael Tomlinson Minister of State (Minister for Illegal Migration)

I am very grateful for that guidance.

May I start by turning to those who have contributed to this debate? I thank my hon. Friend Tim Loughton for his powerful points, challenging, forensic and learned points. He once again questioned what solutions are being offered by the Labour party, and he was right to do so. Answer came there none.

May I thank my right hon. Friend Sir John Hayes? As so often, he debated in poetry, and I will come back to some of his remarks in due course. I also thank the Chair of the Home Affairs Committee, Dame Diana Johnson. She was right to ensure that she did not make a Second Reading speech, but she did mention one or two amendments and other matters, and I shall turn to those in due course.

I thank my hon. Friend David Simmonds. He is always thoughtful, measured and so often right, and I am grateful to him for his contributions and also for his interventions during the latter stages of this debate. Alison Thewliss cited Robert Burns and asked what he would have to say to those on the Conservative Benches. My hon. Friend and neighbour, Simon Hoare, rather cheekily from a sedentary position suggested that Robert Burns might say to Conservative Members, “How can I join you?” That was not the gist or the thrust of her speech, but it was a cheeky intervention that I enjoyed none the less. I shall turn to her amendments in due course.

I listened to my hon. Friend Nick Fletcher, as I always do, and I hope to be able to turn to some of the points that he made and hopefully allay some of his fears. He said sometimes the Chamber empties, or is not as full, when he speaks. That sometimes happens to Ministers as well—that not everyone is back when they are responding to Members’ contributions. But my hon. Friend is here, and I am grateful to him for sitting through so much of this debate and for his characteristic courtesy.

My hon. Friend Tom Hunt spoke with passion, as he always does, and I am grateful to him for his contribution. My hon. Friend Bob Seely spoke at some length, and I am grateful to him for that. He delved into the principles of the ECHR, and he was enticed by my right hon. and learned Friend Sir Robert Buckland to make some pronouncements on some of its judgements, which I thought was a little mean. None the less, my right hon. and learned Friend did proffer one suggestion, namely the case of Hirst, and I am grateful to him for that.

I am grateful to my hon. Friend Jerome Mayhew for his intervention and for being on duty not only in Westminster Hall, but also here in this Chamber.

The course of the debate has been constructive, on the whole. I agree that it has been broadly thoughtful and instructive. We have had exchanges on scripture, and as a lawyer, it was a joy indeed to hear the word “otiose” not once or twice, but several times. We once even heard “otiose with bells on” from my hon. Friend Sir Robert Neill, and I am grateful to him for that. I have not heard that expression before; it must be a legal reference that I brushed past in my youth.

We also heard about box sets from my right hon. Friend Robert Jenrick and Patrick Grady, and I will need to do a bit more research on that. We touched on ECHR membership, although my right hon. Friend the Member for Newark rightly said that this was not the place to have that full debate, but he set out some of the parameters for future debates that I am sure we will have.

Clause 1 sets out the rationale for the Bill. It sets out the legal obligations and how the treaty to which the Government of Rwanda have agreed addresses the concerns that were set out by the Supreme Court. Amendments 39, 40, 41 and 42, tabled and addressed today by Alison Thewliss, and amendments 43 and 44, tabled by Stephen Flynn, seek to exclude the core of those provisions. The hon. Member for Glasgow Central was clear about her intention in that regard. The treaty is binding in international law and, in accordance with Rwandan law, will become domestic law in Rwanda on ratification. That is set out in detail and confirmed in article 3(6) of the treaty. It rules out anyone relocated to Rwanda being removed from there, except to the United Kingdom. That is an important part of the treaty, set out in article 10(3), and that is regardless of whether the individual is found to be a refugee or to have another humanitarian protection need. That removes the risk of refoulement.

Everyone relocated to Rwanda will receive the same treatment. Those with refugee status, those with a humanitarian protection need and even those without that status will be able to stay in Rwanda and will receive the same rights and treatment. That addresses head on the concern that the Supreme Court set out. The asylum decision-making process is being significantly reformed. Annex B of the treaty—if I have time, I might turn to the details of that—contains strengthened monitoring arrangements, and there are also strengthened monitoring arrangements to ensure adherence to the obligations.

I am grateful to my right hon. and learned Friend Sir Jeremy Wright for his engagement. I do not believe that his concerns are right. He said “offensive or otiose”. I would suggest that neither is right, and I hope to be able to reassure him, because clause 1 makes clear that Parliament is sovereign and that its Acts are valid notwithstanding any interpretation of international law. I will come back to that “notwithstanding” terminology, which has been so contentious, perhaps, in recent history. What it does not mean is that we are legislating away our international obligations. The purpose of the Bill is to say that, on the basis of the treaty and the evidence before it, Parliament believes that those obligations have been met. It does not mean that we do not care whether they have been met. He mentioned dualism and was right to do so.

The parts of the clause to which my right hon. and learned Friend’s amendments are directed do no more than make clear what we mean by a safe country, which is a key definition applied to Rwanda, namely that the United Kingdom can remove people to that country in compliance with its international obligations and that Rwanda will not remove anyone in breach of any international law. As a former Attorney General, he also mentioned the Law Officers convention. I was grateful to him for that, for so often in this Chamber it goes unnoticed. It is an important convention, and as a former Law Officer myself I abide by it very strictly, as I know he does, so I am grateful to him for reminding the House of it.

Turning to the amendments tabled by and the speech of my right hon. and learned Friend the Member for South Swindon, I am grateful for his contributions not just today but yesterday. It is important that the will of Parliament is made clear and that, following the mammoth efforts between our Government and the Government of Rwanda, the obligations that we have agreed are fully set out. Clause 1 ensures that it is crystal clear that it is Parliament that has considered and concluded that Rwanda is a safe country. I know his concern about this sort of clause, but he will know that it is not unique and that it is not dissimilar to clause 1 of the Illegal Migration Act—[Interruption.] I suspect he is encouraging me not to pray that in aid, but it is a fact all the same that it is not unprecedented to have a clause such as clause 1 in a Bill.

I turn to clause 3. The United Kingdom has a long-standing tradition of ensuring that rights and liberties are protected domestically and of fulfilling our international human rights obligations. We remain committed to that position and will ensure that our laws continue to be fit for purpose and work for the people of the United Kingdom. Though some of the provisions in the Bill are novel, the Government are satisfied that the Bill can be implemented in line with the convention rights.

However, it has become clear that people will seek to frustrate their removal by any means. Therefore, this Bill goes further than the Illegal Migration Act, which was taken through by my right hon. Friend the Member for Newark and my right hon. and learned Friend Suella Braverman. As we have heard, that Act only disapplies section 3 of the Human Rights Act, whereas this Bill, and particularly clause 3, disapplies further elements of the Act. The effect is that the duty under section 6(1) of the Human Rights Act is disapplied for any public authority, including any court or tribunal, that is taking a decision based on the duty under clause 2 of the Bill to treat the Republic of Rwanda as safe.

I turn now directly to the amendments tabled by my right hon. Friend the Member for Newark, starting with his amendments 11 and 18. He is right that the Bill does not seek to disapply section 4 of the Human Rights Act; it does not, in fact, disapply the declaration of incompatibility provisions in section 4. That is the only substantive remedy against the conclusive presumption that Rwanda is safe. Retaining declarations of incompatibility is important, but of course the final say on this matter will rightly remain with Parliament and with the Government because of section 4(6) of the Human Rights Act, which makes it clear that a declaration cannot affect the operation or the validity of domestic legislation.

Photo of Robert Buckland Robert Buckland Chair, Northern Ireland Affairs Committee, Chair, Northern Ireland Affairs Committee

My hon. and learned Friend makes an important point about the extent to which the courts should and can intervene on issues relating to the compatibility of primary legislation with the ECHR. The section 4 procedure allows the courts to express a view, but does not trespass directly upon the functions of this place in dealing with the problem. It simply gives Parliament an opportunity to rectify any situation—or not, frankly. Does he agree that section 4 is a much better mechanism for the courts to use than the clunky, inelegant and sometimes very problematic section 3 procedure?

Photo of Michael Tomlinson Michael Tomlinson Minister of State (Minister for Illegal Migration)

I hear what my right hon. and learned Friend says about section 3 and I agree with him wholeheartedly. He is right to describe it as clunky, and it has been disapplied in this Bill as well as in the Illegal Migration Act.

If I may say so directly to my right hon. Friend the Member for Newark, I accept entirely his comments that he is here to help the Government and that he believes passionately in this policy. He has had several very frank, open and honest conversations with me about that, both in this Chamber and outside it, and I am grateful to him for putting his points so ably and so clearly, but the disapplication of those sections within the Bill significantly reduces the extent to which public authorities are bound to act as a consequence of the convention rights.

May I turn to clause 5 and the further amendments tabled by my right hon. Friend the Member for Newark? Clause 5 makes it clear that it is for a Minister of the Crown alone to determine whether to comply with an interim measure of the Strasbourg Court. It also makes it clear that the domestic courts may not have regard to the existence of any interim measure when considering any domestic application flowing from a decision to remove a person to Rwanda in accordance with the treaty.

What happened with the Rwanda flight in June 2022 was frustrating, as many Members have mentioned—it was a deeply flawed process and raised issues of natural justice—but changes have been made since then, not least in the Illegal Migration Act. On 13 November, the Strasbourg Court announced the outcome of its review of the rules concerning interim measures. The changes include the naming of judges, interim measures being communicated as formal decisions, and the confirmation of the existing practice of parties being able to request the reconsideration of a decision in the rules. The United Kingdom has responded formally to the Court’s consultation.

Colleagues have raised concerns that, assuming the Bill passes and succeeds in closing down the vast majority of individual claims, our deterrent will be frustrated by a rule 39 interim measure. I say directly to my right hon. and hon. Friends that I understand those concerns. No one who was here in June 2022 and saw the last Rwanda plane left on the tarmac can fail to understand the importance of fixing this issue. That is why the Prime Minister has been clear that he will not let a foreign court block the flights. We simply cannot let an international court dictate our border security and stop us establishing a deterrent. That is why we have inserted clause 5, which is crystal clear that it is for Ministers, and Ministers alone, to decide whether to comply with rule 39 injunctions. We would not have inserted clause 5 if we were not prepared to use it. I confirm to the Committee that we can and will lawfully use that power if the circumstances arise. The discretion is there.

We go further still and we confirm that the civil service must implement any such decision. Today, the permanent secretary for the Home Office has confirmed that if we receive a rule 39 indication, instead of deferring removal immediately, as is currently the practice, officials will refer the rule 39 to the Minister—not to be too grandiose but, in this case, to me—for an immediate decision. As the Cabinet Office has confirmed, it is the responsibility of civil servants, under the civil service code, to deliver that decision.

Colleagues have confirmation that we have the power, we would use the power, and the civil service will give effect to it. If a plane is sitting on that runway, this Government will not stop until it takes off. We all know what the Opposition would do: they would campaign for it to be grounded.

Photo of Jonathan Gullis Jonathan Gullis Conservative, Stoke-on-Trent North 6:45, 17 January 2024

The Minister just said that there will be circumstances in which we will ignore pyjama injunctions. What are the circumstances in which the Government will not ignore them and will therefore comply with them?

Photo of Michael Tomlinson Michael Tomlinson Minister of State (Minister for Illegal Migration)

I could not have been clearer. There is the confirmation that we have the power, we would use the power, and the civil service will give effect to it.

Let me respond directly to my right hon. and learned Friend the Member for Fareham? She spoke powerfully, as she always does, and I always listen carefully to what she says. She set out a number of cases in which medical reasons were cited in court. Medical arguments were presented that, as she said, frustrated the will of this place. In fact, section 39 of the Illegal Migration Act—the very Act that she took through this place with my right hon. Friend the Member for Newark—addresses that exact point about medical records and medical evidence.

The following are examples of harm that do not constitute serious and irreversible harm. The first is:

“where the standard of healthcare available to” the person

“in the relevant country…is lower than” that available in the United Kingdom. It is there in the statute, in the Bill that we passed last year.

The second example is:

“Any pain or distress resulting from a medical treatment that is available to” a person

“in the United Kingdom not being available to” a person

“in the relevant country”.

That is not, does not and will not constitute serious and irreversible harm.

My right hon. and learned Friend the Member for Fareham is right to be concerned about that, but those concerns have been addressed and met in the legislation we have passed, and in the legislation that is mirrored in the Bill.

Let me turn to the important provisions of clause 8. I will directly address Gavin Robinson and his submissions in response to new clause 3. Nothing in the Windsor framework, including article 2, or in the withdrawal agreement affects the Bill’s proper operation on a UK-wide basis. Any suggestion to the contrary would be to imply that the scope of the rights, safeguards and equality of opportunity chapter of the Belfast/Good Friday agreement is far more expansive than was ever intended.

Photo of Michael Tomlinson Michael Tomlinson Minister of State (Minister for Illegal Migration)

I will not give way.

We are unequivocal that that is simply not the case, and article 2 of the Windsor framework is not engaged. I would be happy to write further to Sir Jeffrey M. Donaldson on that point to set out further detail. I hope I can reassure the hon. Member that we have already achieved the aim he seeks.

Photo of Michael Tomlinson Michael Tomlinson Minister of State (Minister for Illegal Migration)

I will give way, but my hon. Friend must be conscious that we are up against a very tight deadline.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

On the statements he made with regard to rule 39 and so forth, can my hon. and learned Friend explain to the Committee how the Government would be able to prevent a judicial review of the decision taken by the Minister without legislation?

Photo of Michael Tomlinson Michael Tomlinson Minister of State (Minister for Illegal Migration)

My hon. Friend has heard what I said on that point. I respect and admire him; he knows the esteem that I have for him. We have a good-faith disagreement on the effect of clause 5, but the clause is clear: it is for a Minister to decide, and a Minister will decide.

Photo of Michael Tomlinson Michael Tomlinson Minister of State (Minister for Illegal Migration)

May I finish my point in response to the hon. Member for Belfast East? I hope I can reassure him that we have already achieved the aim he seeks. The Bill will apply across the whole of the United Kingdom, in line with the application of our sovereign immigration policy across all four nations of the UK as a territorial whole. I am grateful to the hon. Member for his kind and generous comments about me personally, and for his engagement. I will continue to engage with him on this issue.

We have made progress towards stopping the boats, with small boat crossings down by a third in 2023, but we must do more. The only way to do so is if it is abundantly clear that illegal entry will never lead to a new life in the United Kingdom. The power of deterrence is proven beyond reasonable doubt by the success of our agreement with Albania. Parliament and the British people want an end to illegal immigration, and we need a deterrent. We have a plan—a plan to stop the boats—and I invite all right hon. and hon. Members to back it.

Photo of Roger Gale Roger Gale Deputy Speaker and Chairman of Ways and Means

Amendment 11 has been proposed. Mr Jenrick, do you wish to press it to a vote, or do you wish to withdraw it?

Photo of Robert Jenrick Robert Jenrick Conservative, Newark

With your permission, Sir Roger, I would like to withdraw it. However, if you are agreeable, I wish to press amendment 23 instead.

Photo of Robert Jenrick Robert Jenrick Conservative, Newark

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Six hours having elapsed since the commencement of proceedings, the proceedings were interrupted (Programme Order, 12 December 2023).

The Chair put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83D).

Question put, That the clause stand part of the Bill.

Division number 54 Safety of Rwanda (Asylum and Immigration) Bill — Clause 3 - Disapplication of the Human Rights Act 1998

Aye: 338 MPs

No: 264 MPs

Aye: A-Z by last name