Amendment 39

Safety of Rwanda (Asylum and Immigration) Bill - Committee (3rd Day) – in the House of Lords at 5:15 pm on 19 February 2024.

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Baroness Chakrabarti:

Moved by Baroness Chakrabarti

39: Clause 4, page 4, line 12, leave out from “question” to end of line 14Member’s explanatory statementThis amendment, and other amendments to Clause 4 in the name of Baroness Chakrabarti, restore the jurisdiction of domestic courts by rendering the future safety of Rwanda (evidenced by UNHCR advice) a rebuttable presumption and restoring the ability for UK courts and tribunals to grant interim relief.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, this group goes to the heart of domestic, constitutional, rule-of-law concerns about the Bill. I share Amendments 39, 44, 49, 50, 52 and 53—the bulk of the group—with the noble and learned Baroness, Lady Hale of Richmond, and the most reverend Primate the Archbishop of Canterbury. The noble Viscount, Lord Hailsham, is also a supporter of this group but gallantly withdrew his name because he is prevented from being here today. These amendments will restore the proper jurisdiction of our courts. In a moment, the noble and learned Baroness, Lady Hale, will explain them, but for now I beg to move.

Photo of Baroness Hale of Richmond Baroness Hale of Richmond Judge

My Lords, I shall explain why I am proud to support this vital group of amendments to Clause 4 proposed by the noble Baroness, Lady Chakrabarti. They restore to the courts of this country the role which is properly theirs under our centuries-old constitutional arrangements, which respect the separation of powers between Parliament, the Executive and the judiciary.

I must apologise to the Committee that prior commitments prevented me speaking at Second Reading—although I was there for the all-important closing speeches—and attending the first two days of the Committee’s considerations. I have, however, followed the proceedings closely and have been hugely impressed by the quality of the debate.

I agree with so many noble Lords that reversing the very recent findings of fact in our Supreme Court with absolute and for ever conclusions as to the safety of Rwanda, ignoring international law, and disapplying the Human Rights Act are of the gravest concern. However, it is also of the gravest concern that the Bill ousts the jurisdiction of His Majesty’s courts and tribunals to consider matters which are properly theirs to consider, in a constitution which respects the rule of law. It is for the courts to decide whether the Executive have violated, or propose to violate, the rights of individuals—rights they are given, as the Supreme Court made clear, not only by international law and the Human Rights Act but by other UK statutes and by the common law of the land, of which we are so rightly proud.

Amendment 39 restores to the Executive the ability to consider the general safety of the Republic of Rwanda, not just the particular circumstances of a particular individual. This reflects the concerns already expressed in Committee, not only that the situation in any country may change very quickly but that it makes no sense to be able to examine the circumstances of a particular individual but not the evidence that hundreds or even thousands of people may be imprisoned or tortured there. This amendment would also cater for the concerns raised by the previous group of amendments about members of a particular social group.

Amendment 44 restores the same ability to evaluate such vital country information to courts and tribunals considering decisions to remove individuals to Rwanda.

Amendment 49 restores the ability of decision-makers, whether in government or in our courts and tribunals, to look at evidence that the Republic of Rwanda will or may refoule people. Refoulement, as the Committee well knows, means sending people to places where they are at risk of persecution.

Amendments 50, 52 and 53 also restore to our domestic courts and tribunals the jurisdiction to grant interim relief to claimants, preventing their removal to Rwanda until their cases have been properly considered. Amendment 48 in the name of the noble Lord, Lord Coaker, also restores the jurisdiction of courts and tribunals over possible refoulement but not the possibility of granting interim relief, so, with respect, though commendable in itself, it does not go quite far enough.

I remind the Committee that Clause 5 of the Bill allows for the possibility that a Minister of the Crown may comply with interim measures of the European Court of Human Rights. As a matter of sovereignty, it would be odd indeed if an international court could grant relief to people within the United Kingdom when our own courts and tribunals have been deprived by statute of any say at all. In my experience as a judge at the highest level in this country, there is a great deal of respect between our own courts and the European Court of Human Rights in Strasbourg. If and when Rwanda were to become a safe country, our courts would find it so and the Strasbourg court would almost certainly agree. On the other hand, if our own courts are unable to consider the matter, the international court would have to scrutinise the decisions of the UK Government with great care—an outcome which many noble Lords may think regrettable.

Photo of The Bishop of Chichester The Bishop of Chichester Bishop

My Lords, my noble friend the most reverend Primate the Archbishop of Canterbury regrets that he cannot be in his place today to speak to the amendments in this group tabled in the name of the noble Baroness, Lady Chakrabarti, and the noble and learned Baroness, Lady Hale. I wish to associate my remarks with theirs and to emphasise how important the restoration of the jurisdiction of the domestic courts is in considering also UNHRC evidence and the ability to grant interim relief. This is no mere technicality. This jurisdiction might make the difference between sending an asylum seeker to Rwanda while their claim, or an aspect of their claim, is pending or not doing so.

Many of those who have been earmarked for removal will have fled from perilous circumstances in their places of origin. What they need is the certainty of knowing that they will not be removed from the country in which they seek asylum while their cases are pending. Clause 4 includes provisions for a court or tribunal to grant interim relief if they are concerned that the person faces a,

“real, imminent and foreseeable risk of serious and irreversible harm” in Rwanda.

Through debate on this group of amendments, we are considering whether courts and tribunals may benefit from greater discretion for the express purpose of the well-being and future risk of the individuals themselves. We have seen the multiple difficulties faced by the Government in sending asylum seekers to Rwanda. Bearing that in mind, is it really plausible that, having sent an asylum seeker to Rwanda, the Government will then be able to return them to the United Kingdom on the basis of evidence that should have been considered while their case was reviewed here? This seems neither efficient nor plausible.

There is also a need to consider advice from the UN Refugee Agency in reviewing the safety of Rwanda, recognising its crucial role in administering many of the services to support more than 110 million people who are forcibly displaced around the world. That agency serves on the front line in supporting people, and it understands the particular challenges faced by those seeking safety. The agency knows of what it speaks; the courts and tribunals should be able to draw on this expertise as they make their judgments.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I very strongly support what has been said but want to draw attention to the statement, published today, from the UN High Commissioner for Human Rights. I will not read the whole statement, just one paragraph which is supportive of this group of amendments. It states:

“The combined effects of this Bill, attempting to shield government action from standard legal scrutiny, directly undercut basic human rights principles. Independent, effective judicial oversight is the bedrock of the rule of law—it must be respected and strengthened. Governments cannot revoke their international human rights and asylum-related obligations by legislation”.

Has the Minister read this and what is his response to the UN high commissioner?

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

My Lords, I rise very briefly on that point to support the noble Baroness. We have heard in previous groups the concerns of the noble Lords, Lord Hannay and Lord Kerr, who is not in his place, and other noble Lords, that the debates which we are having in this House are being keenly viewed outside this House and very keenly in the United Nations Human Rights Council.

It is a depressing fact today that the top news story on the UN global news website is commentary on this Bill going through this Parliament. The UN Human Rights Council, which will be gathering next week, will be discussing the atrocities in Sudan and the Israel-Gaza conflict. It is a time of great turmoil and danger for many people, but the fact that the UN Commissioner for Human Rights, Volker Türk, today in the preparatory meetings of the council singled out the United Kingdom and the safety of Rwanda Bill as an illustration of the undermining of basic principles of the rule of law and of the risk of delivering a serious blow to human rights is deeply troubling.

The statement referred to by the noble Baroness, Lady Lister, which was made today, said:

“Settling questions of disputed fact—questions with enormous human rights consequences—is what the courts do, and which the UK courts have a proven track record of doing thoroughly and comprehensively. It should be for the courts to decide whether the measures taken by the Government since the Supreme Court’s ruling on risks in Rwanda are enough”.

The statement continued:

“You cannot legislate facts out of existence”.

I appeal to Ministers considering this Bill. Many in the world are watching us. We have led in these areas. We should be leading the discussions in the Human Rights Council about global abuses of the rule of law and human rights. We should not be being singled out for abusing them ourselves.

Photo of Lord Deben Lord Deben Conservative

My Lords, I rise to support these amendments for a very fundamental reason. The separation of powers is crucial for the freedom of all our people and I find it very distressing that the Government have not understood how deeply offensive this element of these proposals is.

It is deeply offensive simply because it purports to say that something is true which is not true. It suggests that the sovereignty of Parliament extends to the decision on whether something is or is not. That is a decision which has always been the purview of the courts, simply because the courts have a structure that enables them to listen to the evidence on all sides and make a decision at the end.

I fear that the Government have presented this because it is inconvenient that the courts should take a part in it. The price of liberty is inconvenience. You cannot be a free nation unless you accept that there are processes that are embarrassing to Governments, to Oppositions, to people of standing, to people who have got other views. You have to accept that it is the price we pay. This Government are suggesting that, because they have got to get something through before the end of the year because they said they would, they can claim that inconvenience is something they will not accept.

Down this route, if we go it, we move towards losing freedom not just of the people we talk about today but all the rest of us. That is why I appeal to your Lordships to accept this fact: by doing this to these people, we do it to ourselves. No man is an island—it is true that we are all part of the same human beings. I am not surprised that the most reverend Primate the Archbishop of Canterbury has put his name to this. There is a deeply important religious, as well as secular, truth. Once you distinguish in the rights between people, you say about people as a whole that they are not each worth something. It is fundamental, and inconvenience is no excuse. We should insist that the Government restore to the courts the rights that people have fought for down the ages, which we have held in this nation as sacrosanct for hundreds of years, and which they have the gall to suggest we should throw aside because it is inconvenient.

Photo of Baroness Whitaker Baroness Whitaker Labour 5:30, 19 February 2024

My Lords, I want to follow the remark made by the noble and learned Baroness, Lady Hale, when she referred to the general safety of Rwanda outside the particular circumstances of anybody who might be sent there for asylum. I apologise that I was not able to be at Wednesday’s meeting, but, on reading Hansard, I noticed that the noble and learned Lord, Lord Stewart of Dirleton, did not answer a point made by the noble Lord, Lord McDonald of Salford, regarding the renewed imprisonment of the journalist Dieudonné Niyonsenga. These were grave allegations. If the Government are aware of the general safety within the justice system of Rwanda, have they made representations about the renewed detention and alleged torture of this journalist, which has become a source of international concern?

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

My Lords, it is a great pleasure to follow my noble friend Lady Whitaker, who reminded us of the importance of the law in protecting the rights of individuals against states. It is also a great pleasure to follow the noble Lord, Lord Deben, and yet another speech in which he said that the debates and discussions on these groups of amendments bring us to fundamental principles of democracy, including the rights of law, freedom of speech and the separation of powers. Debating and discussing these in the context of the Bill is an important reminder of the power and responsibilities of this Chamber.

I am pleased to support the amendments of my noble friend Lady Chakrabarti, the noble and learned Baroness, Lady Hale, and the most reverend Primate the Archbishop of Canterbury, on reasserting the role of the domestic courts. To the noble and learned Baroness and my noble friend I say that it shows what a strange world we live in that, when the current Minister for Illegal Migration was Solicitor-General, he is reported to have told the Government that ignoring interim relief would put us in breach of the ECHR and that they should act with great trepidation. Now he is no longer Solicitor-General but is responsible for illegal migration, and he seems to have forgotten the advice he gave the Government. He could do with reading his own advice. All this, of course, is “so we are told”.

We are also told that the Attorney-General has had serious worries about this, but of course nobody can know about that because legal advice is always kept secret. Although he is the Advocate-General for Scotland, the Minister is not acting in a legal capacity but as a Justice Minister of some sort, and no doubt he will have read the comments made in the other place by various Members about how the Bill works with respect to the interaction with the Scottish judicial system. This is a parallel universe in which we exist, but, none the less, these are all extremely important amendments.

In speaking to my Amendment 48, I wish to highlight a particular aspect that goes alongside Amendment 39 and the others in my noble friend’s name. As a barrack-room lawyer, I take on board the point made by the noble and learned Baroness, Lady Hale, with respect to my inadequate amendment and the fact that it does not include interim relief. I apologise profusely for that oversight. In due course, it may return on Report with interim relief.

On a serious point, the Supreme Court said that the main reason it found Rwanda not to be a safe country in general was the risk of refoulement. The Government have gone to great length, in the treaty and in other things they have published, to say that they have dealt with all the concerns the Supreme Court had—although we note that, in its report published a few days ago, the JCHR continues to assert that there are problems that need to be considered.

I draw attention to Clause 4, which allows individuals who have compelling reasons to argue against their deportation under this Bill and the Illegal Migration Act. I remind noble Lords that even this minor concession of allowing individuals to do so, rather than debating the general safety of Rwanda, was regarded as a step too far by many in the Conservative Party and the Government.

My amendment seeks to delete Clause 4(2). I am grateful for the support of the noble and learned Lord, Lord Hope, although he is not in his place, and the noble Lord, Lord Purvis. The particular aspect I draw noble Lords’ attention to is that, although an individual can present compelling circumstances, and try to persuade the Government that this Bill should not apply to them and that they should not be deported to Rwanda, it does not allow them to do so if they say that they should not be sent there as there are reasons why they might be refouled—in other words, sent to a third country.

Under Clause 4(2), they are prohibited from arguing that in the courts. Subsection (2) says this is so

“to the extent that it relates to the issue of whether the Republic of Rwanda will or may remove or send the person in question to another State in contravention of … its international obligations”.

It includes the word “will”. An individual cannot even argue that they “will” be sent to another country, never mind that they “may” be—the Government included the word “will”. I find that extraordinary; it is almost that an individual cannot argue in a court, as a matter of fact, that they will be refouled. They cannot say, “I have compelling evidence that I will be sent to a third country”. It is extraordinary that legislation would say that you cannot as an individual—let alone the point about general safety made by the noble and learned Baroness, Lady Hale, and my noble friend Lady Chakrabarti—argue in a court that you will be refouled. The court could dismiss such an argument, of course, but it would be up to the court—that is the whole point of the courts.

I take the point about interim relief, but I want justification from the Government as to why an individual cannot take that argument to a court, an immigration officer or the Secretary of State. The Home Secretary, or an immigration officer, cannot consider an individual saying to them, “I will be refouled if I am sent to Rwanda”. How on earth is that consistent with the principles of democracy of this country, of which we are all so proud? That is why I tabled the amendment, and I would like to hear the Government’s justification.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, I am grateful to noble Lords for their contributions to an interesting debate on this important point.

Clause 4 provides that a Home Office decision-maker, or a court or tribunal, can consider a claim that Rwanda is unsafe only

“based on compelling evidence relating specifically to the person’s individual circumstances”.

Subsection (2) prevents a decision-maker or the courts considering any claim where it relates to whether Rwanda

“will or may remove or send the person in question to another State in contravention of any of its international obligations”.

Where the duty to remove under the Illegal Migration Act does not apply, subsections (3) and (4) prevent the courts granting interim relief unless that person can show that they would face

“a real, imminent and foreseeable risk of serious and irreversible harm” if they were removed to Rwanda. This is the same threshold that can give rise to a suspensive claim based on serious and irreversible harm under the Illegal Migration Act. Subsection (5) provides that the consideration of “serious and irreversible harm” will be in line with the definition set out in the Illegal Migration Act, with any necessary modifications. Any allegation relating to onward removal from Rwanda is not an example of something capable of constituting serious and irreversible harm, as the treaty ensures that asylum seekers relocated to Rwanda under the partnership are not at risk of being returned to a country where their life or freedom would be threatened.

Regarding the amendments tabled by the noble Baroness, Lady Chakrabarti, which the noble and learned Baroness, Lady Hale of Richmond, spoke to in opening, I remind noble Lords that the evidence pack published alongside the Bill details the evidence the United Kingdom Government have used to assess the safety of Rwanda. It concludes that, alongside the treaty, Rwanda is safe for the purposes of asylum processing, and the policy statement outlines the key findings. As experts on the bilateral relationship between the United Kingdom and Rwanda and its development over the past 30 years, FCDO officials based in the relevant geographic and thematic departments, working closely with colleagues in the British high commission in Kigali, have liaised with the Home Office throughout the production of the policy statement.

As my noble friend Lord Sharpe of Epsom and I set out in earlier debates, the United Kingdom Government and the Government of Rwanda have agreed and begun to implement assurances and commitments to strengthen Rwanda’s asylum system. These assurances and commitments provide clear evidence of the Government of Rwanda’s ability to fulfil their obligations generally and specifically to ensure that relocated individuals face no risk of refoulement. In answer to the points raised by the noble and learned Baroness, Lady Hale of Richmond, which were adopted by the right reverend Prelate the Bishop of Chichester, and by the noble Lord, Lord Coaker, from the Opposition Front Bench, among others, the position is that a person cannot argue this fundamentally academic point over a long period of time, occupying court resources. It is a point rendered academic because of the provision of the treaty governing the Bill.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

I am grateful to the Minister for stating clearly that the Government of Rwanda have begun putting the safeguards in place. That is consistent with what he said earlier in Committee—that the Government of Rwanda are moving towards putting safeguards in place—but he accepted that Rwanda will be a safe country only when those are place, which may be after Royal Assent. Will an applicant be able to argue, even after Royal Assent, that Rwanda is not safe until the measures that are being moved towards are put in place?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, on the passing of the Bill, the Act will decree that Rwanda is safe. Just because work is being done to render a place safer it does not make it unsafe.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

The Minister just said that Rwanda is becoming safer, but in his earlier comments he said that it has begun to put measures in place, and he has previously confirmed to me that until they are in place, it cannot be determined that Rwanda is safe. The Bill will decree that it is safe before the measures are in place so that it is safe. Surely someone would be able to argue in a court that it is not safe until those measures are in place. That is what the Minister just said.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland 5:45, 19 February 2024

My Lords, what I said was that on the passing of the Bill, Rwanda is safe. What I say is that it is—

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

I did not. I said that just because safeguards have not yet been fully put in place, it does not mean, as a result, that Rwanda cannot be deemed safe.

Photo of Lord Deben Lord Deben Conservative

If Rwanda is not safe now, but it will be safe, then the period between now and the point at which it will be safe must be one in which somebody could argue that it is not safe, otherwise it does not mean anything. My noble and learned friend has himself said that it is not safe now but will become safe. I am not one who thinks that we cannot have an extraterritorial arrangement, but I do not understand the logic that says that it is not safe now, it will be safe, but you cannot appeal to the courts in between those times otherwise it is just academic. This is a use of “academic” that I do not really understand.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

I reiterate my previous answer: the fact that further work is being done does not mean that the safety or otherwise of a place is conditional on the completion of that further work.

The noble Baroness, Lady Whitaker, cited the question posed by the noble Lord, Lord McDonald of Salford, concerning a journalist. She is quite correct: I did not address that specifically when I spoke earlier. The question was not pressed on me subsequently, but given that the noble Baroness has returned to it, I will look into the matter with officials and correspond.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, any work being done to improve a place is desirable of itself.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour

Does the Minister still stand by the assurance from the noble Lord, Lord Sharpe of Epsom, that nobody will be deported to Rwanda until the monitoring committee is up and running? He is talking as though people will start to be deported the moment this Bill passes, which is not what the noble Lord, Lord Sharpe, led us to believe.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My noble friend Lord Sharpe confirmed to me a moment ago that the monitoring committee is already operational; it is up and running.

Photo of Baroness Wheatcroft Baroness Wheatcroft Crossbench

My Lords, the monitoring committee consists of four people, two of whom are apparently in the pay of the Rwandan Government. Can the Minister reassure us that he thinks it will be completely unbiased?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, in the first instance, the monitoring committee consists of not four but eight people. If I might express the words of my noble friend sitting next to me on the Front Bench, I can give that assurance.

My noble friend Lord Deben quoted John Donne’s line that

“No man is an island, entire of itself”.

I think in that piece of prose, which is one of his sermons, Donne also says the familiar passage about asking not for whom the bell tolls; “it tolls for thee”. None the less, while accepting everything of a universalist nature that my noble friend says about our obligations one to another as humans, I have to say that the Government’s scope for operation is restricted. We can operate within our powers and jurisdiction, must legislate to protect our borders, and cannot seek to exceed our powers.

Both the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Purvis of Tweed, raised the point that the progress and content of this legislation are under scrutiny. His Majesty’s Government fully accept that scrutiny and appreciate that it is timely and important because of the scale of the problem that we face. It is a problem faced across all sorts of different countries, and the Government are undertaking to address it by this legislation.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

The Minister may be about to speak on this but I did ask a specific question as to the Government’s response to the absolutely damning statement from the UN commissioner for human rights, which was published today and which the noble Lord, Lord Purvis, also quoted. It talked about

“drastically stripping back the courts’ ability to scrutinise removal decisions” and

“a serious blow to human rights”.

This is serious stuff. I would like to know the Government’s response.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

The noble Baroness indeed anticipated me as I was turning to that point. As she says, the noble Lord, Lord Purvis, had touched on that. I have the statement by the United Nations human rights chief. The Government repudiate the charges that he places when he says:

“The combined effects of this Bill, attempting to shield Government action from standard legal scrutiny, directly undercut basic human rights principles”.

We disagree with that.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

Will the Minister answer a very simple question? Did the United Kingdom vote for the High Commissioner for Human Rights to take his post? If so, by what right does it now repudiate his views?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

Whether or not we as a country voted for him to take his place does not exclude the possibility of disagreement with anything that any official, be he ever so high, may have to say.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour

I am encouraged by the noble and learned Lord’s statement that the monitoring committee is up and running. He will know that the international treaties committee of this House said that

“the implementation of the Treaty requires not just the adoption of new laws, systems and procedures, but also the recruitment and training of personnel. For example, the Monitoring Committee has to recruit a support team”.

Are we to take it that the Minister is saying the committee has indeed already recruited a support team? If not, it is very difficult to see how it could be described as “up and running”.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

That is the information given to me, but I am happy to look into the matter to reassure the noble and learned Lord.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour

Is it that it has recruited a support team, or that it is up and running?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

The point I am making is that I have been told the body is up and running. That does not touch on the matter of the recruitment of a support team, which is the basis of the noble and learned Lord’s supplementary question.

From the Opposition Front Bench, the noble Lord, Lord Coaker, touched on advice said to have been given by the former Solicitor-General and by the Attorney-General. I think he is aware—I have touched on it from the Dispatch Box at earlier stages—of the existence of the law officers’ convention. I will return to it again in a later group, but the essence of that convention is not only that the content of advice given is confidential but also that it is confidential that advice has even been sought. The reason for that, accepted by Governments of every stripe over the years, is to assist with the passage of decision-making and the consideration of legal matters that touch on legislation to be passed. As I said, if I may, I will revert to that in consideration of a later amendment.

The assurances and commitments that the Government have received, together with the treaty and conclusions from the FCDO experts reflected throughout the policy statement, allow his Majesty’s Government to state with confidence that the Supreme Court’s concerns have been addressed and that Rwanda is safe. As the point has been taken in this debate, albeit in passing, I stress once again that this is a matter not of overturning the findings of the United Kingdom Supreme Court but rather of acting on them.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

The Minister is being generous in giving way, but what he just said contradicts what he said previously in Committee. At col. 70 of 12 February’s Official Report, I asked about the mechanisms for safeguards. It had been the Government’s position—until today, it seems—that the requirements of the Supreme Court would be met by the implementation of the treaty, which includes the safeguards within it. These include the appeals mechanism and the training and capacity-building. They have to be in place. If they are not in place, the treaty is not operative. Progress is being made towards them, as the Minister said, but he has just said that the Government’s view is that the requirements of the Supreme Court have been met. These comments are contradictory. This is important because, when I asked,

“can the Minister at the Dispatch Box reconfirm that position: that no individual will be relocated before the safeguards—including the appeals mechanism, the training and the capacity-building—are in place?”, the noble and learned Lord, Lord Stewart, responded:

“I can answer the first part of the noble Lord’s question in the affirmative”.—[Official Report, 12/2/24; col. 70.]

Is that still the case, or did he mislead the House?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

The point I was making was in answer to the point raised earlier in the debate by noble Lords, who were characterising the Government’s actions as going back on, or overturning, the Supreme Court’s decision. As I said, the point is that the terms of the Bill and the treaty are a response to the Supreme Court’s decision.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour

But it is absolutely clear from the policy statement, and from answers that the Home Secretary gave to the international treaties committee of our House, that the position is not complete in Rwanda until it implements new Rwandan asylum legislation, which has not yet been passed. The Home Secretary was specifically asked when that legislation would be passed by Rwanda, and he was unable to give a timeframe. For the noble and learned Lord to say that Rwanda is now safe, when even the Home Secretary accepts that this law has yet to be introduced in Rwanda, seems to completely contradict the Government’s position. I ask him to reconsider the answer to the question: are the Government saying that Rwanda is now safe, without that legislation in Rwanda?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

I think the terms of Article 9 of the treaty are clear. The Act comes into force the day that the treaty comes into force. As to the specific Rwandan legislation to which the noble and learned Lord refers, I am not able to give a categorical answer from the Dispatch Box.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

Will the Minister answer a couple of rather simple questions? Has he read the Rwandan legislation? Does he believe it is in conformity with the treaty?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

The answer to the former is that it does not fall to me to read the Rwandan legislation; but, given that decisions are taken collectively by the Government, I can answer the noble Lord’s second question in the affirmative.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour

The Advocate-General for Scotland may not be the right person to express a view in relation to Rwandan legislation, but I assume that somebody in the Government has seen a draft of this legislation. Could he indicate who that is and what that person’s opinion is?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, I will look into that. Presumably, the Foreign, Commonwealth and Development Office will take this matter under its wing. The noble Baroness, Lady Chakrabarti, refers to the Home Office. We will look into that and provide the noble and learned Lord with an answer.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords) 6:00, 19 February 2024

Could the Minister confirm, for the benefit of all of us, that the Home Office team in charge of the Bill has not seen the Rwandan legislation and has no idea who has?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, what I have said was that I have not seen the Home Office legislation. I have not been called upon to review it.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour

My Lords, I would be keen to know what is the basis for the noble and learned Lord’s assertion that Rwanda is safe, which he is putting forward on behalf of the Government.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, it has been a matter that has been canvassed exhaustively already, but it flows from the treaty which the Rwandan Government and His Majesty’s Government have entered into.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

Could the Minister tell us whether the draft Rwandan law exists?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, again, if the noble Lord is asserting that the relevant Rwandan legislation is a figment of the imagination of the Rwandan Government or His Majesty’s Government, I am not quite sure I can answer that. However, the point is that the treaty and the work going on—which has already been substantially completed—between the British Government and that of Rwanda must indicate that there is such a piece of legislation.

The assurance and commitments to which I have referred, given to and drawing upon the conclusions made by FCDO experts, reflected throughout the policy statement, allow us to state with confidence that the concerns of the Supreme Court have been addressed and that, I repeat, Rwanda is safe. We do not, therefore, consider it necessary to make the proposed changes to Clause 4 to permit decision-makers or courts and tribunals to consider claims or grant interim relief on the basis of Rwanda’s safety generally or that Rwanda will or may remove persons to another state in contravention of its international obligations. That is contrary to the whole purpose of the Bill. The assurances we have negotiated in a legally binding treaty with Rwanda address the concerns of the Supreme Court and make detailed provision for the treatment of relocated individuals in Rwanda, ensuring they will be offered safety and protection with—it must be emphasised—no risk of refoulement.

I turn to Amendment 48, tabled by the noble Lord, Lord Coaker. If I may build on a point I have been making, the treaty makes clear that Rwanda will not remove any individual relocated there to another country, except the United Kingdom in very limited circumstances. Article 10(3) of the UK-Rwanda treaty sets out explicitly that no relocated individual shall be removed from Rwanda except to United Kingdom in accordance with Article 11(1). Annexe B of the treaty also sets out the claims process for relocated individuals and how they will be treated. Part 3.3.2 of Annexe B sets out clearly that members of the first-instance body, who will make decisions on asylum and humanitarian protection claims,

“shall make decisions impartially, solely on the basis of evidence before them and by reference to the provisions and principles of the Refugee Convention and humanitarian protection law”.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

If there is no risk of refoulement because of all those processes, all the legislation and all the things the Minister has just read out, in view of his earlier answers will he confirm that all of that is in place now? Or is it due to be in place? And if it is due to be in place, when will that be? How long into the future will all of the various points that the Minister has read out be in place? At the moment, as it stands under the Bill, I cannot go to the Home Secretary or to any immigration official and say I might be refouled, because I will not be allowed to under the Bill. And yet the Minister cannot tell us that all of the processes to protect me from refoulement are in place. So, what am I supposed to do if I am at risk of refoulement?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

If the noble Lord were to be threatened with refoulement, it could only happen to him once the Bill and the treaty were in place. A person could not be relocated to Rwanda until the Bill and the treaty are in place, and once the Bill and treaty are in place, there is no risk of refoulement.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs)

I am very concerned with what the Minister has literally just told us. The Minister has just said that, once this Bill has passed, there is no risk of refoulement. Article 10 of the treaty says:

The Parties shall cooperate to agree an effective system for ensuring that removal contrary to this obligation does not occur”.

Those are not consistent. The effective system has to be in place, because that is what the treaty says; the effective system is not the passage of this Bill. So can the Minister now correct the record?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, the Government are working with the Government of Rwanda to implement new protections to the Rwandan asylum system, including the introduction of new legislation. I am reverting to a point that was taken earlier, but I give the same answer that I gave to the noble Lord, Lord Coaker. Protections offered by the treaty will prevent refoulement from Rwanda to elsewhere.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

I am grateful to the Minister, who has been very patient with so many concerned Members of the Committee, but everything that he says very honestly in relation to each question suggests that the safeguards are not yet in place. Therefore, Rwanda is not yet safe, because that was the whole point of the treaty: to offer additional protections and to attempt to assuage the concerns of the Supreme Court. How can all of this be academic? This is not a bathroom that has been plumbed in and we are now just painting the tiles; we do not have the plumbing yet.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, the treaty guarantees that anyone relocated to Rwanda will be given safety and support and will not be returned to a country where their life or freedom will be threatened. That directly addresses the Supreme Court’s concerns about refoulement. As to the matter of the use I made of the word “academic”, I was using that in answer to points raised by noble Lords in relation to why the Bill bars the taking of general points of academic interest, which was referring to a point once the Bill and the treaty are in place. Once they are in place, there is no possibility of refoulement from Rwanda without contravention of an international instrument. The point is that, at that stage, argument before the domestic courts would be academic. I give way to the noble Lord.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour

I do not think that the Minister has taken on board what the noble Lord, Lord Purvis, asked him. Article 10(3), which is the provision in the treaty that allows relocation only back to the UK, contains the following phrase:

The Parties—” that is, Rwanda and the UK,

“shall cooperate to agree an effective system for ensuring that removal contrary to this obligation—" the obligation being to remove only to the UK—

“does not occur”.

The parties have not yet agreed that. The parties, the UK and Rwanda, therefore accept that, currently, there is not in place an effective system for ensuring that removal contrary to the obligation only to remove to the UK exists. Could the Minister please explain to the Committee how he can possibly say that, at the moment, under the agreement—that is the overarching agreement, not the agreement to agree an effective system for ensuring non-refoulement—such safeguards currently exist? We need an explanation for that.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, the point is that the treaty, while it has not been ratified, is a matter of agreement. I spoke about the work—

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

Further to the Minister’s answer to the noble and learned Lord, Lord Falconer, does the system—the effective system for ensuring that removal contrary to the obligation does not occur—exist?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, I am not fully clear that I follow the import of the question that the noble Lord poses. If he will bear with me, I am going to defer answering that point and will do so with him in writing.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

Forgive me: I am just trying to understand the Minister’s position on the point raised by the noble Lord, Lord Purvis, and pursued by the noble and learned Lord, Lord Falconer. The treaty requires the parties to set up a system—it says they shall agree a system. The Minister is saying that Rwanda is safe and implying that that system has been set up, or at least has been agreed, and will come into force the moment the treaty is ratified. Is that the case?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

The system has been agreed and will come into place along with the treaty.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

Could the Minister then tell us what that system is? When will the House see that system? It would help us to judge how real the remaining risk of removal to a third country is if we could see the system that has apparently been created to ensure that that risk does not come to fruition.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, I will expand on the matter in the correspondence to which I referred the noble Lord.

I will go into more detail about the work that has been and is being conducted between Rwandan and British officials. Officials from the UK and Rwanda have worked closely together to strengthen Rwanda’s asylum system. We have already developed and commenced operational training for Rwandan asylum decision-makers and strengthened procedural oversight of the MEDP and asylum processes.

In November 2023, technical experts from the Home Office, working with the Institute of Legal Practice and Development, delivered a training course aimed at asylum decision-makers in Rwanda. It focused on applying refugee law in asylum interviews and decision-making, and on best practice in assessing credibility and utilising country-of-origin information.

Furthermore, as set out in paragraph 14.1.15 of the published country information note on Rwanda’s asylum system, once the treaty is ratified there are provisions for Rwanda to move to a case-worker model when deciding asylum claims. Under that model, for the first six months Rwanda’s decision-making body will consider advice from a seconded independent expert prior to making any decision in relation to a claim.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

That is a decision not for me to take. It will be taken by the Government collectively. I am not in a position to give a date to the noble Lord, if he was asking me to give one. In the circumstances, I cannot supply him with any further information.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour

The Minister just referred to the independent experts who are going to help the Rwandans in relation to their processing of claimants. Our International Agreements Committee said those independent experts have yet to be appointed. Could he give the House an indication of how the appointment process is going? How many have been appointed, and when?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, that is a matter of detail upon which I will have to correspond with the noble and learned Lord.

The Government of Rwanda are committed to this partnership. Like the UK, they are a signatory to the refugee convention and have an international obligation to provide protection to those who are entitled to it. The Bill is predicated on the compliance by both Rwanda and the UK with international law in the form of the treaty, which itself reflects the international legal obligations of the UK and Rwanda.

Taking together the strengthened Rwandan asylum system and the commitment set out in the legally binding treaty—which, once ratified, will become part of Rwandan domestic law—it is unnecessary for a decision-maker, whether that be an immigration officer or a court, to consider any claim made on the ground that Rwanda may remove a person to another state. Furthermore, as I said earlier, that would delay unnecessarily the relocation of individuals to Rwanda, thereby undermining the core of the Bill.

For the reasons outlined, I respectfully ask that noble Lords do not move their amendments.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Labour 6:15, 19 February 2024

My Lords—before the Minister sits down—it becomes crucial to know when this Act will come into force. This is not a personal observation, but the Minister has given the most unsatisfactory series of answers about what the position is in Rwanda. Clause 9 of the Bill says:

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

On Wednesday, I took the Minister through what the statement and the agreement suggest, which is that the Bill comes into force when the steps required for ratification are completed by both countries. The only step required for ratification that is referred to in the policy statement made by the Government, as far as the UK Government are concerned, is the passage of this Bill. So it appears that the Government are envisaging that, almost automatically on the passage of the Bill, they will treat the agreement as ratified. The consequence is that the Bill will immediately come into force. If that is right, it is pretty obvious that the Bill will become law and the Government can deport people to Rwanda when the safeguards are not in place. Could the Minister confirm that my understanding of when the Bill is going to come into force, which I set out in detail last week, is correct?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

I cannot go beyond the terms of the clause to which the noble and learned Lord refers. Clause 9(1) states:

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

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

As always, I am grateful to the Committee for its deliberations, but on this occasion I am particularly happy to welcome the noble and learned Baroness, Lady Hale of Richmond, to those deliberations, and indeed to what I hope will be a long and happy role as a legislator in your Lordships’ House. I think the Committee will agree that she dealt with this important group of amendments with the expertise and clarity that we would have expected. She pointed out the dangers of the “for ever” conclusion that Rwanda is safe and therefore the inability of our domestic courts to ever look at that issue—something that I think every speaker other than the Minister found unsatisfactory and said so more than once.

The noble and learned Baroness pointed out the oddity of a situation where there would be at least the possibility of jurisdiction in the European Court of Human Rights in Strasbourg in circumstances where our domestic courts had been stripped of jurisdiction. For those concerned about sovereignty, that seems to be a very odd state of affairs. The one thing that the Bill does not purport to oust is the final jurisdiction of the European Court of Human Rights in Strasbourg—although it attempts to allow Ministers to ignore interim relief from Strasbourg—but it completely ousts all serious jurisdiction of our domestic courts, particularly in relation to the issue of the general safety of Rwanda. That is a very odd and unsatisfactory state of affairs and, again, no one in the Committee other than the Minister appeared to say otherwise.

I am grateful to the right reverend Prelate the Bishop of Chichester and my noble friend Lady Lister of Burtersett for reminding the Committee what the UNHCR said just today about the Government of the UK attempting to shield themselves from judicial oversight. My goodness me—what would we be saying about any other country or jurisdiction in the world that that was said about by the main refugee monitor at the UN? Furthermore, I am grateful to the noble Lord, Lord Purvis of Tweed, for pointing out the significance of this in places such as the UN Human Rights Council, and how shameful it is that an examination of the UK should now be threatening to eclipse the situations in the Middle East and Ukraine. There are almost no words.

When there are almost no words, thank goodness for the noble Lord, Lord Deben. I refer the Committee to Hansard last Wednesday, when he spoke about the “nature of truth” and how we should always be seeking after it and never trying to end that exploration. I say to the Minister that rather more important than any references to John Donne today was the allusion to Al Gore; it is the inconvenient truth that the Government are constantly seeking to avoid with this Bill. It is the inconvenient truth that Rwanda is not yet safe, hence the need for the treaty in the first place and all the mechanisms that need to be brought in and operated under it. This was put so well, repeatedly, by my noble and learned friend Lord Falconer of Thoroton. There is also the inconvenient truth that we still believe in the rule of law in this country. We still believe in anxious scrutiny of individual cases before people’s rights are put in jeopardy. There is the inconvenient truth that, even if Rwanda became generally safe tomorrow, things could change quickly, as they do in countries all over the world, as was pointed out once more by the noble and learned Baroness, Lady Hale of Richmond.

I am grateful to my noble friend Lady Whitaker for pointing out very real concerns about journalists currently detained in Rwanda. We wait for responses “in due course” from the Government about reports of torture of the journalists currently incarcerated there. I was grateful for the support of my noble friend Lord Coaker on the Opposition Front Bench. I thought, if I may say so, that the courtesy and deference he gave to the noble and learned Baroness, Lady Hale, and the mutuality of respect between them, boded well for the attitude of a future Labour Government. I will hold him to that in due course, I hope.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

Yes, in due course.

I say to the Minister that I am sure the Committee is very grateful for his patience and courtesy, as always, but this was a very difficult couple of hours. I do not know whether the word “decree” was a Freudian slip or just some straightforward, slightly shameless honesty. We now live in a country in which we are going to determine something as important as whether another country is safe for asylum seekers, not by fact finding or seeking after truth, as the noble Lord, Lord Deben, would like, but by decree. I cannot believe that I am now living in a country where facts of such importance are determined, in effect, by Executive decree.

It is not even by parliamentary decree because Parliament will not have the opportunity to examine all these shadowy mechanisms under the treaty. My noble and learned friend Lord Falconer, with the able assistance of the noble Lord, Lord Purvis of Tweed, attempted again and again to get answers about these but answers came there none. When will this legislation be brought into Rwanda? Who has seen the draft legislation? Who are the experts? All these are things that the Supreme Court was concerned about.

I remind the Committee that the Supreme Court never doubted the good faith of the Rwandan Government. It just felt that, on the evidence, the mechanisms and cultures were not yet there on the ground. The Minister, courteously and kindly, could not answer any of those questions. Therefore, in addition to stripping our domestic courts of their jurisdiction over such important matters, the Government have singularly failed to assure this Committee that Rwanda is safe and that we should “decree” it so.

I will end unconventionally with a comment made by one of your Lordships’ security staff to me earlier in the day. For obvious reasons, he shall remain nameless.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

He or she or they—I have sort of admitted that it was a gentleman. He said to me that he had heard various comments I have been making. I said, “I am sorry for that; it is all rather depressing, isn’t it?” He said, “My Lady, I think there are all sorts of people that we would like to kick out of our country, but we don’t want to kick out our values”. I think that was a pretty good summation, worthy of any Member of the Committee.

Finally, I say to the Minister: if Rwanda is so safe, or if it will become safe and be safe for a long time, there is nothing to be afraid of in this group of amendments. The Government should not be afraid of His Majesty’s judges or the courts that have been the pride of this country and admired all over the world for so long. For the moment only, however, I beg leave to withdraw my amendment.

Amendment 39 withdrawn.

Amendments 40 to 45 not moved.