Amendment 17

Part of Safety of Rwanda (Asylum and Immigration) Bill - Report (1st Day) – in the House of Lords at 7:45 pm on 4 March 2024.

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Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland 7:45, 4 March 2024

My Lords, the noble Lord, Lord Ponsonby, has flung down the gauntlet and, on behalf of His Majesty’s Government, I am happy to pick it up.

I am grateful to all who participated in this debate and sincerely echo the words of the noble Lord when he said that there was a refreshing quality to this short debate. I think that the House articulated some important points and contrasting positions were properly and clearly laid out for the consideration of the House.

My noble friend Lady Lawlor opened with the support of my noble friend Lord Frost and I begin by saying, as I said at an earlier stage in the handling of this Bill, that it is important to recognise, as my noble friend did, that the levels of illegal migration to this country, perhaps to the whole of western Europe and other comparatively prosperous parts of the world, are not only placing enormous strain on us economically but straining the fabric of society and straining perhaps also public confidence in the ability of our courts and democratic legislatures to address problems.

I am grateful to both my noble friends for their broad support for the aims and objectives of the Bill. The noble Lord, Lord Frost, put it clearly and accurately in constitutional terms when he repeated that this Parliament may legislate in contravention of international law and that it is a long-standing element of our constitution.

The noble Lord also correctly identified that the high price to be paid for any such step is a matter of reputation. Reputations of countries, as of people, may be easily lost. I echo what he said about how it is difficult to adapt international treaties drawn up at different times and in different circumstances. The noble Baroness, Lady Chakrabarti, intervened on him; it seemed to me that he was not saying that he had had enough of international law but that he wished it to operate in its proper context.

The noble Baroness, Lady Hoey, made an extremely important point, which the noble Baroness, Lady Lister of Burtersett, touched on—the status of the law of the United Kingdom in one of its constituent parts as opposed to another. The Government are considering the judgment in the case of Dillon, to which the noble Baroness referred, in relation to Article 2 of the Windsor Framework and all the available options, including appeal against that decision, very carefully. Our position is that the Bill will apply in full in Northern Ireland and we are clear that nothing in the Windsor Framework, including Article 2, or the trade and co-operation agreement affects the Bill’s proper operation on a UK-wide basis—a matter very important to this Government.

The Government have always been consistent about the position of Article 2. For it to be engaged, it would be necessary to provide evidence that the alleged diminution of rights relates to rights set out in the relevant rights, safeguards and equality of opportunity chapter of the Belfast/Good Friday agreement, concerns a right that was given effect in domestic law in Northern Ireland on or before 31 December 2020 and occurred as a result of the United Kingdom’s withdrawal from the European Union. Nothing in the Bill, which is about matters of asylum and immigration, engages any of those issues. As such, it would be incorrect to claim that its provisions are within the scope of Article 2.

The noble Baroness, Lady Lister of Burtersett, referred to the importance of speed of communication with letters written after earlier stages—I see the noble Lord, Lord Cashman, nodding his head. I apologise to the noble Baroness and to others in the House who were recipients of letters. I signed the terms of the letter off, however inadequate she may ultimately have found it, on Saturday afternoon.

The amendment tabled by my noble friend Lady Lawlor, with the support of the noble Lord, Lord Frost, would limit legal challenges. On one view, it may be seen as undermining the safeguards necessary to ensure that this Bill and the Illegal Migration Act are compatible with the United Kingdom’s international obligations. That Act and this Bill include provision for a person subject to removal to a safe third country to make a limited class of suspensive claim on the ground that they would face a real risk of serious and irreversible harm if they were removed. The threshold for serious and irreversible harm is high and the harm in question must be both imminent and permanent. This reflects the test applied by the European Court of Human Rights.

This legislation provides that a court may grant interim relief which prevents removal to Rwanda only where it is satisfied that there is a real, imminent and foreseeable risk of serious and irreversible harm. These measures are necessary to ensure compatibility with the European Convention on Human Rights and ensure that the grounds by which people can challenge removal are appropriately narrow. As my noble friend Lord Sharpe of Epsom and I have set out from the Dispatch Box on other amendments—I will come back to this—the Bill reduces unnecessary challenges while preserving the principle of access to the courts where an individual may be at real risk of serious and irreversible harm. As a whole, the limited availability of domestic remedies maintains the constitutional balance between Parliament’s authority and the powers of our courts to hold the Government to account.

This country has a strong track record on rights, liberties and protection of human rights internationally. We are committed to enhancing that record. Some of the provisions in the Bill are novel, though not without precedent. Noble Lords will know that Australia has undertaken a similar approach with Nauru and we know that other countries are exploring similar models. For example, Italy has announced a partnership with Albania. The Government are satisfied that the Bill can be implemented in line with the convention rights, so I ask my noble friend to withdraw her amendment.

The theme of the Bill, to echo the words of my noble friend Lord Howard of Lympne, who is no longer in his place, is accountability. It addresses the concern that my noble friends advanced to the House that illegal migration on the scale at which we currently experience it, notwithstanding the successes we have recorded and which I spoke about on an earlier group, is straining both our ability to fund the phenomenon of illegal migration and the electorate’s faith in both the courts and this place.

Removing Clause 3 entirely and disapplying Section 1(5) of the Illegal Migration Act, as Amendments 20 and 21 seek to do, would mean that the Human Rights Act applied in full to this legislation, as well as the Illegal Migration Act, in relation to removals to Rwanda. This would increase the risk that a person challenging their individual removal would frustrate the entire scheme by bringing systemic challenges on human rights grounds. It would also increase the risk of litigation, asking the courts to interpret the Bill in a way that is inconsistent with the clear intent of Parliament, undermining Parliament’s conclusion on the safety of Rwanda being accepted by the domestic courts.

Section 3 of the Human Rights Act requires the courts to interpret the meaning of legislation to make it compatible with convention rights so far as it is possible to do so. Disapplying Section 3 confirms and ensures that the provisions will be interpreted in accordance with the usual principles of interpretation, primarily by applying the ordinary meaning of the provisions. This follows the approach taken in the Illegal Migration Act, which the amendment from the noble Baroness, Lady Chakrabarti, also seeks to disapply. Disapplying Section 2 of the Human Rights Act ensures that considerations about the Rwanda treaty and the safety of Rwanda are firmly located with Parliament, providing that element of accountability which my noble friend Lord Howard of Lympne called for so eloquently. Taken together with the rest of Clause 3 and the Bill as a whole, the provision makes it clear that appropriate deference should be given to Parliament’s sovereign and final determination in the matter.

Clause 3 also disapplies Sections 6 to 9 of the Human Rights Act from decisions, whether by decision-makers or the courts, related to the conclusive presumption that Rwanda is safe and any application of the serious and irreversible harm test. Disapplying Section 6 confirms that public authorities are not bound in domestic law to act in a particular way as a consequence of convention rights. In the context of this Bill, which deems Rwanda a safe country, this is targeted at preventing people frustrating removal by bringing systemic challenges in our domestic courts.

The disapplication of Sections 7 to 9 of the Human Rights Act follows from the disapplication of Section 6. These are the operative provisions of the Human Rights Act that flow from Section 6, providing for judicial processes and remedies. Given that Section 6 is disapplied, these provisions are not needed.

I turn to Amendment 47, tabled by the noble Baroness, Lady D’Souza, and Amendment 18, tabled by the noble Baroness, Lady Chakrabarti. These amendments are designed to expand the current process under Section 4 of the Human Rights Act, and to place pressure on the Government to present legislative proposals to Parliament. In doing so, they seek to oblige the Government to respond to declarations of incompatibility in a certain way. That is expressly—