Amendment 1

Safety of Rwanda (Asylum and Immigration) Bill - Report (1st Day) – in the House of Lords at 3:15 pm on 4 March 2024.

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Baroness Chakrabarti:

Moved by Baroness Chakrabarti

1: Clause 1, page 1, line 2, after “The” insert “first”Member’s explanatory statementThis amendment is consequential to the amendment at Clause 1, page 1, line 5, in the name of Baroness Chakrabarti, to add the purpose of compliance with the rule of law to that of deterrence.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, after such a thorough Committee, which showed this House—if not the Government or their flagship policy—in the best light, I will be brief and urge others to do the same. This way, those seeking important votes will avoid self-harming delay and highlight any deliberate filibustering by others.

My amendments in this group, shared with the noble Viscount, Lord Hailsham, the noble and learned Baroness, Lady Hale of Richmond, and the right reverend Prelate the Bishop of St Edmundsbury and Ipswich, would add the purpose of compliance with the international and domestic rule of law to deterrence in Clause 1. They require actual evidence of real implementation of the Rwanda treaty before that country is presumed safe, and only that this be presented by government to Parliament. That is all. I have revised my approach after the suggestion by the noble Lord, Lord Howard of Lympne, that initial decisions be in Parliament’s accountable hands, rather than those of others. While still finding the forced transportation of human cargo completely repugnant, I note my noble friend Lord Blunkett’s distinction between offshoring and offloading by ensuring that those granted asylum be returned to the UK under the treaty.

These are wholly reasonable amendments, but if the Government still cannot accept them, I will urge my noble friend Lord Coaker to test the opinion of the House on his single requirement, respecting the rule of law, which is surely completely incontrovertible for those, such as the Prime Minister, who now claim to be liberal patriots. That was two minutes. I beg to move.

Photo of Viscount Hailsham Viscount Hailsham Conservative

My Lords, I begin by saying how much I regret the death of my noble friend Lord Cormack. He was a great friend of mine and a close colleague for more than 40 years in the House of Commons and here. He was also a very close Lincolnshire neighbour, and he rendered great service to the city and county. He was a very considerable parliamentarian, and I know that he intended to participate in these debates. He would have made a significant contribution. His is a very great loss.

I hope I will be forgiven if I remind your Lordships that, for the reasons I expressed at Second Reading and in Committee, I am a root and branch opponent of the Bill. In my view, many of its provisions are objectionable in principle. Moreover, I do not think it will achieve its intended policy objective: to deter illegal migration across the channel.

However, I recognise that the Government are determined to have this Bill, so our purpose at this stage should be to address some of its more objectionable characteristics. It is in this spirit that I address the amendments in this group and adopt the approach of the noble Baroness, Lady Chakrabarti. I can and I will support any of the substantive amendments included in this group that are moved to a Division. However, I especially commend to your Lordships Amendment 3 in the name of the noble Baroness, Lady Chakrabarti, which I have signed.

One of the Bill’s great deficiencies is that it purports to describe Rwanda as presently a safe country when both the Supreme Court and this House have decided otherwise. The Government rely on the treaty as being sufficient evidence of present safety. In my view, that is clearly not a sustainable position. It is possible that Rwanda will become a safe country—that is, when the treaty is ratified, when its provisions have been implemented, when the infrastructure is in place and working, and if the country’s culture has changed. That may all happen in the future; it has not happened yet. On any view, it will require assessment.

Proposed new subsections (1B) and (1C) in the noble Baroness’s Amendment 3 are designed to provide a mechanism for such an assessment. The amendment provides that the initiative lies with the Secretary of State. That takes account of the observations my noble friend Lord Howard of Lympne made at Second Reading, when he stressed the importance of proper democratic accountability. The amendment ensures just that. I commend Amendment 3 to the House. However, if others in this group are the subject of Divisions, I shall support them.

Photo of Baroness D'Souza Baroness D'Souza Crossbench

My Lords, I will speak to my Amendments 10 and 43 in this group. I remain concerned about the potential constitutional fallout from this Bill, despite what my noble friend Lord Hannay has referred to as a “sterile” issue. There must be a reference to its remarkable impact on vital constitutional elements, such as the rule of law, the separation of powers and parliamentary sovereignty. Although these are probing amendments, such is the gravity of these possible consequences that they surely deserve to be noted, if not in the Bill then at least in the record of its passage.

The Supreme Court has stated unequivocally in a former judgment:

“The courts will treat with particular suspicion … any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny”.

In this Bill, the Government are doing just this by writing into law a demonstrably false statement—that Rwanda is a safe country to receive asylum seekers—thereby forcing all courts to treat Rwanda as a safe country despite clear findings of fact.

It is clear that the Bill subverts the rule of law, the key elements of which are abiding by international law, equality before the law, respect for fundamental human rights and guaranteeing access to the courts. These rights are negated by this Bill, and as such it is a legal fiction. The longer-term impacts might be considerable—for example, could the Supreme Court in future rule, with any authority, a Prorogation unlawful?

The Bill in its present form enjoins all relevant courts and officials to deem Rwanda a safe country and specifically disallows any rational challenge by the courts. In Committee the noble Lord, Lord Clarke of Nottingham, expressed the hope that there will be a challenge, thereby enabling the Supreme Court to strike the Bill down as unconstitutional. Should this happen, a review of the Bill’s impact on the rule of law in the UK would prove invaluable evidence.

Photo of The Bishop of St Edmundsbury and Ipswich The Bishop of St Edmundsbury and Ipswich Bishop

My Lords, I shall speak in favour of Amendments 1, 3 and 5 tabled by the noble Baroness, Lady Chakrabarti, to which I have added my name. I do not believe that we can enshrine in law a statement of fact without seeing and understanding the evidence that shows such a statement to be true, in particular when such a statement of fact is so contentious and for which the evidence may change. Ignoring for a second the strange absurdity of such declarations, we must also consider the real impact that this could have on the potentially vulnerable people whom the Government intend to send to Rwanda. As my most reverend friend the Archbishop of Canterbury, who is in his place, said at Second Reading,

“in almost every tradition of global faith and humanism around the world, the dignity of the individual is at the heart of what is believed”.—[Official Report,29/1/24, col. 1014.]

Sending those who seek refuge in the UK to a country of questionable safety does not respect this dignity, so I support amendments that require further evidence of the safety of Rwanda before anyone is sent there.

Photo of Lord German Lord German Liberal Democrat

My Lords, we support all the amendments in this group. It is absolutely critical that domestic and international law is complied with. This should not be up for debate. It is who we are. It is what we stand for. If we seek to deviate from our domestic and international legal obligations, our role on the world stage and our ability to have influence globally is significantly diminished. We cannot shy away from the consequential impact this will have on other countries choosing to follow suit. As the United Nations Human Rights Council put it last Friday,

“international standards on the independence of the judiciary are closely linked to the rule of law and the separation of powers. ‘Provisions of the Rwanda Bill could undermine the principles of the separation of powers and the rule of law in the United Kingdom’”.

That is sufficient for us to support all these amendments.

Photo of Lord Howard of Lympne Lord Howard of Lympne Conservative

My Lords, I begin by associating myself with the remarks of my noble friend Lord Hailsham about the late Lord Cormack. I cannot add anything to what my noble friend said, but it is entirely true that Lord Cormack is a great loss and we shall all miss him tremendously.

I am grateful to the noble Baroness, Lady Chakrabarti, and my noble friend for their references to my earlier intervention in these debates. I am not sure that the further interpretation that they place on my intervention is entirely justified or that I would entirely go along with it, but that is perhaps a matter for debate at a later stage.

The amendments in this group are all based on respect for the rule of law. A critical part of respect for the rule of law is the separation of powers, something much referred to in our earlier debates, and it is to that subject that I propose to address these remarks. As Anthony Speaight KC reminds us in his recent Politeia pamphlet, there is no such thing as the absolute separation of legislature, executive and judicial powers in our constitutional arrangements. Our Executive are rooted in our legislature and in any event, as Mr Speaight and others have pointed out, there are precedents for this legislation—for the proposition that Parliament can deem certain countries to be safe—including the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, passed under the Blair Government. The principle in that legislation was challenged in the case of Nasseri but was upheld by the Court of Appeal and the House of Lords. That, of course, is essentially what this Bill does: it deems Rwanda to be a safe country.

However, there is an even broader principle that is relevant here and is at the root of why this legislation is necessary. We have traditionally recognised the separation of powers between the Executive and the judiciary. That principle can be expressed in the proposition that decision-making is the responsibility of the Executive, but that the courts have the responsibility to review the lawfulness of those decisions.

That responsibility of the courts is what we know as judicial review. Its scope has been expanded greatly in recent years in ways which have not found universal approval but its principle is accepted as an important part of our constitutional arrangements. However, judicial review does not involve the courts substituting their own decisions for those of the Executive. It involves, in essence, an assessment of whether it was reasonable for the Executive to make the decision in question.

That was the approach that the Divisional Court took in the case that gave rise to the Bill. The Divisional Court held that the Government’s decision was lawful and I imagine that, if things had rested there, the Government would not have asked Parliament to consider the Bill; but, as we know, things did not rest there.

The Court of Appeal, by a majority, and the Supreme Court held that the Divisional Court had applied the wrong test. The correct test, said the Supreme Court at paragraph 34 of its judgment, requires the court to decide the issue for itself—to substitute its own decision for that of the Executive—and that is exactly what the Supreme Court did. It took that approach because it was following a decision of the European Court of Human Rights in a case called Soering; but as the Supreme Court itself recognised at paragraph 28 of its judgment, while the Human Rights Act requires it to take into account decisions of the European court, as is now well established, it does not require it to follow them.

I suggest to your Lordships that, in resolving to decide this issue for itself, the Supreme Court was trespassing on the province of the Executive. If there is any breach of the principle of separation of powers in this matter, it is not the Government who are guilty but the Supreme Court. All the Government are doing in the Bill is to reassert their responsibility, as traditionally understood by the principle of the separation of powers, for executive decision-making. There is a reason why it is the Government and not the courts who have that responsibility: because it is the Government and not the courts who are accountable. The courts are accountable to no one—they pride themselves on that—but accountability is at the heart of democracy. That is why the Government are fully entitled to bring forward the Bill and why much of the criticism directed at them for doing so is, for the reasons I have given, fundamentally misconceived. That is why I oppose these amendments.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 3:30, 4 March 2024

My Lords, that is a very interesting speech but what we are being asked to do here is to vote on an opinion. The noble Lord knows that most of us do not agree with that opinion. I will speak on the Bill only once today. I am deeply offended that it was ever brought to us. It is a mess of a Bill; it is illegal and nonsensical.

We in your Lordships’ House are being asked to indulge in pointless chatter for the whole day, and for another day. It is pointless chatter because, whatever we say, the Government will not listen to us. This is partly fuelled by the Labour Front Bench, which seems to be rewriting the Salisbury convention that we do not try to stop anything in the Government’s manifesto. In fact, the Labour Front Bench is now suggesting—it has been articulated on numerous occasions—that the Lords must not interfere with any legislation or decision by the Government or the Commons because they are elected and we are not. Then what is the point of your Lordships’ House?

The point is that we have centuries, possibly millennia, of experience and knowledge. We had the opportunity to stop this foolish Bill, but the Labour Front Bench decided that we would not and whipped its members to abstain. That is an abnegation of their responsibility, and I am horrified by it. It grieves me that they might win the election and then behave in the same way. I think they are hoping that the current Government are going to respond in kind and not block any Bills, but that is a false hope.

We Greens will vote for any amendments that come up today, but, quite honestly, we are wasting our time.

Photo of Lord Green of Deddington Lord Green of Deddington Crossbench

My Lords, I shall be extremely brief. Some important points have been made, but I want to focus on the exact drafting of Amendment 3, which is clearly central and what the vote will be about. The puzzling aspect is that new subsection (1B) makes the condition that

“the Secretary of State has considered all relevant evidence … and is satisfied that the Republic of Rwanda is a safe country for the processing of asylum and humanitarian protection claims”.

Fine, no problem, but then it goes on to say:

“before successful claimants are returned to the United Kingdom by request of the Secretary of State under Article 11(1) of the Rwanda Treaty”.

I have looked at Article 11(1), and it does not say that. It says:

The United Kingdom may make a request for the return of a Relocated Individual”.

Paragraph 12(c) of the Explanatory Notes describes that as a response

“to the Supreme Court judgment by … Creating a mechanism for the UK to require the return of a Relocated Individual”.

Which is it? Does this provide for the Secretary of State to bring people back or, as the noble Baroness implied, is that the outcome that is the purpose of the whole thing? I think that is the case, but the language needs to be cleaned up, or perhaps the noble Baroness would confirm it so that we know what we are voting for.

Photo of Lord Clarke of Nottingham Lord Clarke of Nottingham Conservative

My Lords, I begin by paying tribute to my old friend Lord Cormack, whom I knew for 60 years. I first met him when I was fighting the then ultrasafe Labour seat of Mansfield and he was fighting the ultrasafe Labour seat of Bassetlaw next door in the 1964 election. From that time, he was a very good personal friend of mine for well over 50 years in Parliament, when we both got there on a rather better basis for our political careers. He was an extremely good man. It has to be admitted that he was always regarded as speaking too much in the Commons and the Lords, as he was always forthright in his views, but that rather ignores the fact that overwhelmingly he spoke very sensibly and extremely well, and the principles that guided him throughout his political career were extremely sound. We will all miss him.

I will not repeat the arguments that I have made previously. I just acknowledge that my noble friend Lord Hailsham has made a speech every word of which I agree with. The Government are in an impossible position. Another good personal friend, my noble friend Lord Howard, made a brilliant attempt to defend that position and to try to demonstrate that the Bill is compatible with the things that he holds as dear as I do—the rule of law and the separation of powers—but I fear that he fails. His arguments might apply if we were talking here about a matter of political judgment on a given set of facts that the Government were making a policy decision about. However, the Bill is solely about asserting a fact as a fact regardless of any evidence, and regardless of the fact that five Supreme Court judges unanimously considered that evidence and came to the conclusion, which is not too surprising, that Rwanda is not a safe country.

I cannot recall a precedent in my time where a Government of any complexion have produced a Bill which asserts a matter of fact—facts to be fact. It then goes on to say that it should be regarded legally as a fact interminably, until and unless the Bill is changed, and that no court should even consider any question of the facts being otherwise. It is no good blaming the Human Rights Act; I do not believe that it was in any way probable that the British courts were going to come to any other conclusion. If the Labour Party allows this Bill to go through, I very much hope there will be a legal challenge. The Supreme Court will consider it objectively again, obviously, but it is likely that it will strike it down again as incompatible with the constitutional arrangements which we prize so much in this country. I too will be supporting any of the amendments in this group as introduced. It is a very important principle that we are seeking to restore.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, I will be brief, but I would like to associate myself with the remarks of the noble Lords, Lord Clarke of Nottingham and Lord Howard of Lympne, and the noble Viscount, Lord Hailsham, concerning Patrick Cormack, who was a dear friend of many of us. He was kindness itself to me when I became a Member of another place in 1979 and there were many issues on which we worked with one another, not least those around Northern Ireland. He did great service in uniting people around a complex and very difficult question during the years that really mattered. We were in touch with one another in writing just two weeks before his death. He had gone back to Lincoln to care for his wife Mary; he was deeply troubled about how ill she was, but he hoped soon to be back in his place. We will all miss him not being in his place and contributing to your Lordships’ House.

I would like to put just two points to the noble Lord, Lord Sharpe of Epsom, or to his noble and learned friend Lord Stewart, whoever will reply on behalf of the Government. I put a question during Committee concerning the report of the Joint Committee on Human Rights, on which I serve. I asked the noble Lord, Lord Sharpe, at that stage whether, before we considered this Bill on Report, we would have a proper reply from the Government to that Select Committee report. It is deeply troubling that there has been no reply and deeply troubling that Select Committees, not least one that is a Joint Committee of both Houses, can give a view about this Bill, specifically around the question of safety, and in a majority report say that it does not believe it right to say that Rwanda is a safe place to repatriate refugees to, yet not to have a response to those findings before your Lordships are asked to vote on amendments on Report. That is my first point.

My second point also concerns safety—the safety of our reputation as well. I was troubled to read in reports over the weekend that £1.8 million will be spent for each and every asylum seeker for the first 300 who are to be deported. That was described by the chair of the Home Affairs Select Committee in another place as a staggering figure. The Home Office declined to give information about it because of what it said was commercial confidentiality. I cannot believe that such a lame reply would be given, and I do not expect the Ministers to use that excuse when they come to reply today. It is not right for Parliament to be asked to take awesome decisions that will affect the lives of ordinary people, and to do so without giving all the facts being given to Parliament first.

I simply say that I have been reading the magnificent book East West Street by Philippe Sands KC. When we consider the way in which this country responded at that time to people such as Philippe Sands’ family, who had fled from Lviv, in what is now Ukraine, and when we consider the generosity of spirit and the response from people in both Houses of Parliament and all political traditions, that seems to contrast sadly—dismally—with how we are responding at this time through the Bill. I hope the Ministers will be able to reply to my points.

Photo of Lord Lilley Lord Lilley Conservative 3:45, 4 March 2024

My Lords, I have listened to and read the debates so far with great respect. They have been dominated by distinguished noble Lords who are lawyers, and I am not. I want to raise two questions of fact and ask those noble lawyers, and indeed the distinguished prelates, why they have not mentioned them until now.

The first point has just been mentioned by my noble friend Lord Howard. Contrary to what has been asserted many times—that Parliament cannot by law state whether or not a country is safe—in 2004 the Blair Government did just that. They introduced legislation which created an irrebuttable presumption that a number of listed countries were safe. It was subsequently tested in the courts and upheld. Why have none of the noble Lords who have asserted that we cannot do that mentioned and dealt with the fact that we have done it in the past?

The second factual point was raised by the noble Lord who spoke from the Lib Dem Benches. He said that, if we do this sort of thing in the Bill, which gives us the right to override international law and not necessarily to respond to decisions and demands of the European court, we will forfeit our respect and ability to influence people in the international arena. Why does he, and others who have made similar points, not mention the fact that the French Government have done just that? They have returned an asylum seeker to Uzbekistan despite the order of the European court that they should not, and despite even a ruling of the Conseil d’État that they should bring him back. Have they lost all respect in international fora? Have they lost any ability to influence public opinion internationally? Why does that not get mentioned in this place?

Photo of Lord Clarke of Nottingham Lord Clarke of Nottingham Conservative

I cannot claim to remember this clearly, but did anybody challenge with evidence the earlier cases that my noble friend tries to cite as a precedent? If anybody had had evidence showing facts to be contrary to what was then laid down in statute, does my noble friend think it would have survived a challenge in today’s Supreme Court?

Photo of Lord Lilley Lord Lilley Conservative

I cannot say what today’s Supreme Court would do, but the supreme courts of our country in those days did entertain a challenge. Greece, in particular, was not thought to be safe, and presumably they would not think now that France is safe. They upheld the right of the Executive to make those decisions and did not try to supersede them or consider evidence as to whether the accusations were correct.

Photo of Viscount Hailsham Viscount Hailsham Conservative

This is a different situation. Here we have the expression of opinion by the Supreme Court being displaced by the Government through legislation.

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords, I do not think it is relevant to cite France. The fact is that this country has a great reputation for upholding the rule of law and international law, and we play a great part across the world. This Bill is threatening that reputation and that role. France does not have that reputation or role, in my opinion.

Photo of Lord Lilley Lord Lilley Conservative

I am not sure what the noble Baroness’s question to me is, but, as a great Francophile, I am sorry to hear her abuse the French nation in that way.

My noble friend said that this was different because the Supreme Court has expressed an opinion. Amendment 5 says that a purpose of the Bill should be to uphold the rule of law. As I understand it, the rule of law in this country for 1,000 years has meant that laws made and approved by our elected representatives are partially implemented by the courts, and all of us—citizens, public officials, Ministers and police, and even lawyers and bishops—are subject to those laws. If we do not like the law, we can try to persuade our elected representatives to change it. If Parliament feels that the courts have interpreted laws in a way that Parliament did not intend or that is out of line with the values and interests of the public who elect it, Parliament can change the law. That is what we are doing. We have a perfect right to do so as long as Parliament remains sovereign.

Photo of Lord Murray of Blidworth Lord Murray of Blidworth Conservative

As a member of the Joint Committee on Human Rights, I was in Rwanda last Thursday. More particularly, I was in the Rwandan Parliament. I can confirm to your Lordships’ House that, on Wednesday last week, the Rwandan Chamber of Deputies ratified the treaty by 64 votes to two. Rwanda is a monist country, unlike this country, which is dualist. That means that the international obligations of Rwanda are enforceable in domestic courts. Once ratified by the Senate of Rwanda, the treaty will have effect legally within Rwanda.

Noble Lords will recall that the basis upon which the Supreme Court found Rwanda to be unsafe was particularly set out in the judgment. Each and every paragraph of the treaty obtained by the United Kingdom Government with the Government of Rwanda was targeted at the decision of the Supreme Court. Noble Lords will notice that, with the approval and ratification of the treaty in Rwanda, there is simply no basis upon which it can be said Rwanda is unsafe. These amendments are unnecessary.

Photo of Lord Dubs Lord Dubs Labour

If that is so, why or how is it that a number of refugees from Rwanda have been given asylum protection in this country?

Photo of Lord Murray of Blidworth Lord Murray of Blidworth Conservative

As the noble Lord will be well aware, the treaty is directly reflective of all the Supreme Court’s concerns about the safety of Rwanda. The fact that there are refugees from a certain country does not mean that that country is of itself always and everywhere unsafe.

Photo of The Archbishop of Canterbury The Archbishop of Canterbury Bishop

My Lords, at this stage of the debate on this group, we are looking at two distinct things. One is the question of whether Rwanda is safe. If, as the noble Lord just said, it is unquestionably safe, it seems to me that these amendments are not a problem because, at that point, the Secretary of State can easily say, “It’s safe”, and they will have evidence of that, for this and future Governments.

However, the object of this group is the rule of law, which is the main subject we are looking at. Going back to the development of international human rights law, particularly in the period after 1945, there is a difficulty in totally separating domestic and international law. The rise in international human rights law grew out of the horrors of the 1940s. In 1933, the German Government were legally and properly elected, and passed horrific laws that did terrible things, starting from within a few weeks of the election of Adolf Hitler. That continued, and most historians agree that the first two elections gave the Nazi Party a legitimate majority.

Winston Churchill’s advocacy of the European Court of Human Rights after the Second World War grew up in order to give a fallback where domestic law was not doing the right thing, by linking it to international law and ensuring that there was a stop that said, “You can do this perfectly legitimately domestically, but that doesn’t mean it’s always right and always the right thing to do”. Let us be clear: we are not in a situation remotely like that. The Government are not doing something on the scale of what we saw at that stage. But they are challenging the right of international law to constrain our actions.

The point of international law is to stop Governments going ahead with things that are wrong. The noble Lord, Lord Lilley, made two very good points, particularly in his questions. But one thing I was brought up believing and even, believe it or not, something I was told when I was trained as a clergyman—we do get trained, although that may sound surprising from time to time—was that it is a basic rule of ethics and morality that two wrongs do not make a right. So the fact that we have done the wrong thing in the past does not automatically make it right today.

Photo of Lord Tugendhat Lord Tugendhat Conservative

My Lords, it is a privilege to follow the most reverend Primate. I begin by saying how much I agree with every word that my noble friends Lord Clarke and Lord Hailsham said about my old friend Patrick Cormack. He was a good man and will be very much missed. I cannot add to what they said, but I say this humbly and with great warmth.

At this stage of the proceedings, our task is to try to persuade the House of Commons to improve the Bill. Failing that, it is to draw attention to the implications of leaving the Bill as it is. I support this amendment, and others that will follow, because I believe that the failure to amend the Bill will have profound implications. The Government will, in fact, be behaving like the ruling party in George Orwell’s Nineteen Eighty-Four. Normally, Nineteen Eighty-Four is invoked in relation to government behaviour, laws, events and so forth in tyrannies and dictatorships. This country is no dictatorship—it is a democracy. Nevertheless, in this Bill the Government are seeking to achieve by Act of Parliament what in Nineteen Eighty-Four the ruling party and its apparatchiks sought to achieve by torture.

Many noble Lords will remember the scene towards the end of the book in which Winston is being interrogated by O’Brien and is forced to say that Oceania is and always has been at war with Eastasia, although he knows for a fact that it was until recently at war with Eurasia. When O’Brien holds up four fingers, Winston is obliged to say that he sees five, as an act of obedience to the party. However many fingers O’Brien holds up, the answer is always the same—just as, whatever the evidence to the contrary, Oceania has always been at war with Eastasia. Likewise, with the Bill as it stands, it does not matter what the Supreme Court has said about the present or how conditions in Rwanda might evolve in future—the answer is always the same: Rwanda is a safe country. If the Bill goes on to the statute book in its present form, Rwanda will be a safe country, regardless of reality, until the statute is repealed.

Rather than going down that route, we should take our cue from what Margaret Thatcher told the House of Commons on 17 July 1984—as it happens—when a judge had held that a decision her Government had taken in connection with GCHQ was illegal. She said that

“I, rightly, cannot overturn the decision of a court, and I would not wish to do so … at the end of the judicial process Governments, of course, accept the courts’ final ruling. That is what the rule of law is all about”.—[Official Report, Commons, 17/7/1984; cols. 173-74.]

Photo of Baroness Lawrence of Clarendon Baroness Lawrence of Clarendon Labour

My Lords, I too was in Rwanda last week, and the noble Lord, Lord Murray, seems to have left out what was said in our last meeting with the UNHCR, which talked about international rule of law. On Rwanda not being safe, it said that there is a certain process that Rwanda needs to put in place before it can be seen as a safe place. So the noble Lord gave noble Lords only one part of what was said.

Everywhere we went, everybody said that Rwanda was safe, but it already has so many refugees in different camps. At the moment they are not facilitated within the country but are in camps. The UK is building a vast area of accommodation, and my question to a lot of people was: what will be the impact on the local community when we send more than 300,000 people to Rwanda? Nobody can answer that at the moment. There is still a lot of work to be done by the Rwandan Government for the UNHCR to say that it is a safe place; until that happens, it is not safe.

Photo of Lord Cromwell Lord Cromwell Crossbench 4:00, 4 March 2024

My Lords, I have two brief points. First, on Patrick Cormack, yes, he did speak often and, yes, that was sometimes frustrating, but doubly frustrating was that he was brilliant at synthesising views across the House and lobbing them forward to his Front Bench as quite difficult questions, something I learned to appreciate over time.

Secondly, in his speech just now—all of which I agreed with—the noble Lord, Lord Clarke, was searching for an international precedent for the Bill, as have others. I simply direct him to one also from central Africa, where the president of the country at that time declared by legal presidential decree that there was no AIDS in his country. It made him an international laughing stock, and I cannot help thinking that this Bill feels rather the same.

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

My Lords, it is a pleasure to wind up this group of amendments for His Majesty’s Opposition. We have become used to the quality of the debate on the Rwanda Bill, but I start by associating myself with all the remarks made about Lord Cormack and add my recognition that he was a marvellous individual. In marking his passing, I also mark the passing of my noble friend Lady Henig in recent days. I am sure that fuller tributes will be made to her; we have lost a valued colleague.

The noble Baroness, Lady Jones, presented a challenge to me. If we were to win the next election, we would have the big advantage of being in power and would repeal the Bill. That is the point I make to the noble Baroness.

It is our view, whether or not it is held universally, that it is important for us to respect what we see as the constitutional traditions of the House. We would expect them to be followed were we to be in power, and that is why we take the position we do. I say to the Government, as I have on a number of occasions, that constitutional convention also requires the Government to listen to what the House of Lords says, to respect what it says and to listen to its views and not just dismiss them before they have even been discussed. We have made that point continually throughout this debate.

The Government may disagree with all the amendments, but to dismiss them as the Government have, before this House has even debated many of them, undermines the constitutional proprieties of the way this country operates. As much as the Government say to us that we should respect those, the Government should respect the amendments your Lordships consider and, on occasion, pass.

I thank my noble friend Lady Chakrabarti for her amendments and for the way she put them. She will see that my Amendment 2 seeks to say that the Act, as it will be, should comply with domestic and international law. I want to focus particularly on the international law aspects but, with respect to the debate we have had on domestic law, I refer noble Lords to the report from the Constitution Committee. The report made a number of challenges to the Government about how simply saying something was a fact in legislation accorded with the separation of powers.

Clause 1(2)(b) says that

“this Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country”.

Paragraph 11 of the Select Committee report says:

“Clause 1(2)(b) could be interpreted as a breach of the separation of powers between Parliament and the courts. It is the role of Parliament to enact legislation. It is the role of the courts to apply legislation to the facts”.

The Bill says that the facts are not convenient so we will change them by legislation, saying that Rwanda is safe by an Act of law rather than by application of that legislation to the facts as they are within the country.

International law is also extremely important. In Committee, the noble Viscount, Lord Hailsham, helpfully pointed out that Clause 1(4)(b) says:

“It is recognised that … the validity of an Act is unaffected by international law”.

That is quite astonishing. The Bill later lists all the various laws and conventions which will not apply. As a country, is that really where we want our legislation to be? My noble friend Lady Lawrence referred to the UNHCR’s view that the Bill is incompatible. Do we simply dismiss that with a wave of the hand and pass legislation to say that it does not matter? Do we say that disapplying the Council of Europe from this legislation does not matter, despite the fact that it was mainly Conservative politicians, not least Churchill and Maxwell Fyfe, who moved forward the legislation on it? All sorts of other conventions are dismissed with a wave of the hand as though they do not matter.

Yet, time after time from the Dispatch Box, both here and in the other place, respect for international law is used as a justification for this country’s actions. The international law of the sea is used, rightly, as a justification for our actions against the Houthis in the Red Sea. When we say that Russia’s invasion of Ukraine is illegal, it is because it breaks international law. We often talk about “foreign courts” as a disparaging term for international courts that we have agreed to join, but where do we wish to take Putin for what he has done in Ukraine? It is to an international court to be held to account by international law. In all these examples, we expect international law to apply to the actions of an individual or a Government.

My amendment says that it matters what this country does, with respect to both domestic and international law, because in all the international institutions of which we are a member we often stand up and say that international law is important and should be applied and adhered to. We do so because we recognise that if it is not, that will be the road to chaos, confusion and the problems across our world getting not better but worse.

The Bill is dealing with a difficult problem that we all wish to see solved. This is not between those who wish to see it solved and those who do not, but about the differences in how we would do it. There is a need to deal with the challenges of the small boats, immigration, migration, refugees and asylum seekers in this country, but let us do it in a way that is consistent with our proud tradition of respect for law—both our domestic law and the separation of powers, and the international law based on treaties that we signed as a free, independent country.

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

My Lords, on behalf of the Government Front Bench, I will first speak about noble Lords who have recently passed out of this Chamber and out of this life. I echo everything said about my noble friend Lord Cormack. I did not know Baroness Henig as well as her colleague, the noble Lord, Lord Coaker, did, but I mourn her loss and those better able to speak about her will do so in due course.

As to Lord Cormack, I can say something. If the welcome which he extended to the noble Lord, Lord Alton of Liverpool, on his entering the other place was as kind, heartening, pleasant and wise as the one which he extended to me on my coming among your Lordships a scant few years ago, I would not be very surprised. The House will miss his contribution to our deliberations.

As the noble Baroness, Lady Chakrabarti, set out, Amendments 1, 3 and 5 add the purpose of compliance with the rule of law to that of deterrence in Clause 1, requiring the Secretary of State to consider all relevant evidence and lay a statement before Parliament that Rwanda is currently a safe country. Amendment 10, tabled by the noble Baroness, Lady D’Souza, would mean that decision-makers cannot conclusively treat Rwanda as safe if the Supreme Court rules otherwise, even if Parliament had declared it safe.

The overarching purpose of the Bill is to deter dangerous and illegal journeys to the United Kingdom, which are putting people’s lives at risk, and to disrupt the business model of people smugglers who are exploiting vulnerable people. Picking up a point that my noble friend Lord Hailsham made, we know that deterrence can work. We have seen this through our Albania partnership, where we have removed more than 5,700 people, and the number of small boat arrivals has dropped by 93%. The number of migrants crossing the channel has fallen year on year for the first time since current records began, with the total arrivals in 2023 down more than a third on 2022. We know that this is not a Europe-wide trend—there has been a 16% increase in detected irregular arrivals to Europe.

This Government’s joint work with France prevented more than 26,000 individual crossings by small boat to the United Kingdom in 2023. Since July 2020, the joint intelligence cell and French law enforcement partners have dismantled 82 organised criminal gangs responsible for people smuggling of migrants via small boat crossings. However, as we know, the small boats problem is part of a larger global migration crisis—one that this Government are committed to tackling, along with our international partners.

The migration and economic development partnership—MEDP—with the Government of Rwanda is one part of our wider programme to stop the boats. This partnership will not only act as a strong deterrent but demonstrate that it is not necessary to take dangerous and unnecessary journeys to find safety, as promoted by the smugglers. This partnership with the Government of Rwanda has now been set out in a new treaty, binding in international law. As your Lordships’ House heard from my noble friend Lord Murray of Blidworth a moment ago, it has been ratified by the lower house of the Rwandan Parliament and is moving on to its upper house. This treaty has been agreed by the Governments of the United Kingdom and Rwanda and was worked on by both parties with close care and attention.

As was set out repeatedly in earlier debates, the Government respect the decision of the Supreme Court in the case of AAA v the Secretary of State for the Home Department. However, I remind noble Lords that the Supreme Court’s conclusions were based on evidence submitted prior to the High Court hearing in September 2022 and did not consider the subsequent, ongoing work that has been undertaken between the United Kingdom and the Government of Rwanda since the partnership was announced, to prepare for the operationalisation of the partnership and, later, to address the findings of the Court of Appeal.

Indeed, the Supreme Court recognised that changes may be delivered in future which could address the conclusions they reached, and as I have just set out, we have done this through the treaty. I repeat: the Bill and the treaty do not overturn or disregard the Supreme Court’s decision; they act on it.

Article 10 of the treaty ensures that people relocated to Rwanda are not at risk of being returned to a country where their life or freedom would be threatened. It ensures that people relocated to Rwanda who are not granted asylum will receive the same treatment as those recognised as refugees, including permanent residence. It strengthens Rwanda’s asylum system, including through the constitution of a new appeal body composed of judges, from Rwanda and other countries, with asylum and humanitarian protection expertise to hear individual appeals. It clarifies the availability of free legal representation for all stages of the process and availability of free legal representation for court appeals, and it enhances the functions of the independent monitoring committee.

The United Kingdom and Rwanda have been working together to improve systems and to develop the partnership. That work and the assurances we have negotiated in our legally binding treaty with Rwanda address the findings of the Supreme Court and make detailed provision for the treatment of relocated individuals in Rwanda, ensuring that they will be offered safety and protection with no risk of refoulement. The implementation of those provisions in practice will be kept under review by the independent monitoring committee, the role of which, as I just set out, was enhanced by the treaty and which will ensure that the obligations under the treaty are complied with in practice. The amendments tabled by the noble Baronesses, Lady Chakrabarti and Lady D’Souza, are therefore not necessary. Although, as the noble Baroness, Lady Chakrabarti, set out, the amendments in her name take into consideration the views expressed by noble Lords in our debates, they would delay the operationalisation of the partnership.

I repeat: the treaty does not override the judgment. It is precisely to address the concerns of the Supreme Court that the Government have concluded this international treaty with the Republic of Rwanda with additional safeguards and guarantees, as well as publishing an evidence pack on what has changed. The changes, along with our wider evidence pack, address the findings of the Supreme Court.

Furthermore, Amendment 3 appears to be intended—here, I follow the reasoning of the noble Lord, Lord Green of Deddington, in his earlier contribution—to require persons whose claims are successful in Rwanda to be returned to the United Kingdom. That goes against the spirit and intention of the treaty. Those relocated to Rwanda will not be returned to the United Kingdom, except in limited circumstances; they will be given safety and support in Rwanda.

As previously set out, it is our view that Parliament and the Government are better suited to address the sensitive policy issues involved in the legislation and the matters with which it deals, and, ultimately, to tackle the major global challenge we face of illegal migration. The Government’s published legal position makes it clear that Parliament is able, with clear and express words, to limit access to the domestic courts. While previous attempts have not always prevailed, Parliament has done that in ways that have been upheld in the courts in the recent past. Those recent successes have been clauses which, while they ousted most claims, did not oust all claims. As the recent judgment in the case of LA (Albania) v Upper Tribunal made clear, the fact that an ouster provision was not a total ouster was an important consideration for the court to give effect to that ouster. The court decided that the ouster did not offend the rule of law and gave effect to it.

The Bill allows Parliament to confirm that it considers that it has sufficient material before it to judge that Rwanda is safe in general, and that that finding should not be disturbed by the courts. The Bill also allows for an exceptionally narrow route to individual challenge to ensure that the courts interpret the relevant provisions in accordance with the will of Parliament, recognising that it is not, however, possible for Parliament reasonably to conclude that Rwanda will always be safe for every potential individual liable to removal at any point in the future irrespective of their specific personal circumstances.

Completely blocking any court challenges would be a breach of international law and alien to the United Kingdom’s constitutional traditions of liberty and justice. The Bill limits unnecessary challenges while maintaining the principle of access to the courts where an individual may be at a real risk of serious and irreversible harm. Taken as a whole, the limited availability of domestic remedies maintains the constitutional balance between Parliament being able to legislate as it sees necessary and the powers of our courts to hold the Government to account.

Regarding Amendments 1, 3, 5, 10 and 43, tabled by the noble Baronesses, Lady Chakrabarti and—

Photo of Lord Clarke of Nottingham Lord Clarke of Nottingham Conservative 4:15, 4 March 2024

My Lords, my noble friend asserts that the Government are complying with the rule of law and respect the position of the courts and so on. Why does the Bill expressly rule out any court in future considering any evidence that Rwanda perhaps is not complying with the treaty that he has described, and why does the Bill expressly rule out the provision of various features of international law when it comes to consider future behaviour by the Government of Rwanda? The terms of the Bill seem to contradict the complete confidence with which my noble friend is putting forward this ideal situation that is likely to prevail for all time on the ground in east Africa.

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

My Lords, the point of the Bill is to move the matter into the diplomatic and political sphere. The Bill and the treaty make the point that the matters are better considered there than they are in the court. That is my answer to the point which my noble friend makes.

Regarding Amendment 2, tabled by the noble Lord, Lord Coaker, I cannot accept that the provisions of this Bill undermine the rule of law. Amendment 2, implying that this legislation is not compliant with the rule of law, is simply not right. The Bill is predicated on Rwanda’s and the United Kingdom’s compliance with international law in the form of the treaty, which itself reflects the international legal obligations of the United Kingdom and Rwanda, as my noble friend Lord Murray of Blidworth pointed out following his recent visit.

As has been stated in the debates on this Bill, the Government take their international obligations, including under the European Convention on Human Rights, seriously. There is nothing in this Bill that requires any act or omission that conflicts with the United Kingdom’s international obligations. Along with other countries with similar constitutional arrangements to the United Kingdom, and again echoing points made by my noble friend Lord Murray, we have a dualist approach, where international law is treated as separate from domestic law and incorporated into domestic law by Parliament through legislation. This Bill invites Parliament to agree with its assessment that the Supreme Court’s concerns have been properly addressed and to enact the measures in the Bill accordingly. The Bill reflects the fact—going back to my noble friend Lord Howard of Lympne’s opening points—that Parliament is sovereign and can change domestic law as it sees fit, including, if it be Parliament’s judgment, requiring a state of affairs or facts to be recognised.

The principle of recognising that certain countries are safe for immigration purposes, as your Lordships heard from my noble friend Lord Lilley, is a long-standing one that is shared by many other countries as part of their respective systems. The European Union states are not the only countries that may be safe for these purposes. Therefore, to act as the Government are proposing in terms of the Bill would not an unusual thing for Parliament to do. There is other immigration legislation in which Parliament recognises that states are generally safe. It is not akin to Parliament stating something to be the case contrary to the actual position. The Bill reflects the strength of the Government of Rwanda’s protections and commitments, given in the treaty, to people transferred to Rwanda in accordance with it. The treaty, alongside the evidence of changes in Rwanda since the summer of 2022, enables Parliament properly to conclude that Rwanda is safe.

In addressing other points raised on this matter, and echoing what I said in response to my noble friend Lord Clarke, my noble friend Lord Tugendhat moved the sphere of literary references governing discussion of the Bill in your Lordships’ House from Alice in Wonderland to George Orwell’s Nineteen Eighty-Four. The point is not that the Government are proposing that Parliament should legislate contrary to the Supreme Court’s findings, but that Parliament should pass a Bill reflecting those decisions and acting on them. We are acting on the court’s decision, not overturning it.

I respectfully echo my noble friend Lord Howard of Lympne’s point, which again echoed his important speech at an earlier stage, that the theme of this matter is accountability—the accountability of Parliament and the Government to face the consequences of their actions and decisions before the electorate.

The importance of Parliament’s judgment is the central feature of the Bill and many of its other provisions are designed to ensure that Parliament’s conclusion on the safety of Rwanda is accepted by the domestic court. The treaty sets out the international legal commitments that the United Kingdom and the Rwandan Governments have made, consistent with their shared standards associated with asylum and refugee protection. It also commits both Governments to deliver against key legal assurances, in response to the conclusions of the UK Supreme Court. We are clear that we assess Rwanda to be a safe country and we are confident in the Government of Rwanda’s commitment to operationalising the partnership successfully in order to offer safety and security to those in need.

In answer to a point made by the most reverend Primate the Archbishop of Canterbury, while Sir Winston Churchill was instrumental in drawing up the body or making possible the creation of the European convention, he did not say anything to alter the constitutional principle of the supremacy of Parliament, to which I have made reference.

I return to matters raised in the submission of the noble Lord, Lord Alton of Liverpool. He posed two questions, the first on the receipt of an answer to points made by committees of your Lordships’ House. I have checked that and it is anticipated that answers to the Joint Committee on Human Rights and the Constitution Committee will be issued by Wednesday.

The noble Lord also raised costs. The point is not that doing nothing does not have costs. We will doubtless return, later at this stage of the Bill, to the enormous expense inflicted on British taxpayers—running to billions of pounds a year—by maintaining the status quo. It is that status quo that we seek to interrupt.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My point on the question of costs was not so much the £0.5 billion, but that the chair of the Home Affairs Select Committee in another place said that this was a staggering amount of money and that it was being veiled by so-called commercial confidentiality. When the Minister publishes his response to the Joint Committee on Human Rights and the Constitution Committee “by Wednesday”, will he undertake to provide further details unpacking the so-called “confidentiality” of this £0.5 billion?

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

If the noble Lord will permit, I will defer answering that question until later.

So it is in order to prevent the current expenditure—the cost of housing asylum seekers is set to reach £11 billion per year by 2026—that the Government propose to act. As I have said, we assess Rwanda to be a safe country and we are confident in the Government of Rwanda’s commitment in that regard. I therefore invite the noble Lord, Lord Coaker, not to press his Amendment 2, and I also invite the noble Baroness, Lady Chakrabarti, to withdraw her amendment. If the amendments are pressed, I will have no hesitation in inviting the House to reject them.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 4:30, 4 March 2024

My Lords, I did not succeed in my urging of brevity, but never mind. I am grateful to all noble Lords none the less, particularly for the very worthy tributes to the noble Lord, Lord Cormack, and my noble friend Lady Henig. They were liberal patriots indeed.

I remind your Lordships’ House that the Prime Minister invoked the rule of law in his Downing Street address on Friday, but I am grateful to the most reverend Primate for reminding us that, in the post-war age, the international rule of law is part of that.

I will not be tempted down the rabbit hole of the slightly unorthodox and creative version of the rule of law presented by the noble Lord, Lord Howard, save to say that he and his noble and learned friend the Minister effectively gaslit the Supreme Court. But they should have compared notes first, because one accused the Supreme Court of trespassing on the province of the Executive, while the other, in his usual soft and seductive tones, said how much he respected our highest court. I guess one of them must be telling us the truth, but I think it was the noble Lord, Lord Tugendhat, who gave the best response to both of them: this is post-truth legislation indeed.

I am shocked if not surprised by the response of the Government and, for fear of some of the specious and nitpicking excuses around my slightly longer amendment, I urge my noble friend Lord Coaker to press his very short, very simple, and incontrovertible amendment requiring compliance with the rule of law. I beg leave to withdraw my amendment.

Amendment 1 withdrawn.