Lord Hope of Craighead:

Moved by Lord Hope of Craighead

At end insert “, and do propose Amendment 3B in lieu—

3B: Clause 1, page 1, line 12, leave out “is a safe country” and insert “will be a safe country when the arrangements provided for in the Rwanda Treaty have been fully implemented and for so long as they continue to be so.””

My Lords, with the leave of the House, I shall speak also to my Motion B2 and to Amendment 3C in lieu.

I asked for these amendments in lieu to be put down because I believe that Lords Amendments 2 and 3, to which I propose Amendments 3B and 3C in lieu, raise important issues to which further thought needs to be given by the other place. I should make it plain that it is my intention, if I do not receive a satisfactory reply, to test the opinion of the House on both amendments.

Clause 1(2) of the Bill states that

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

That proposition lies at the very heart of this Bill; everything depends on it. Careful thought therefore has to be given to the use of the word “is” in that statement. What does it mean? What are its consequences and what does it lead to? I have been teased by some Members on these Benches behind me for picking on one of the shortest words in this entire Bill, but there is a really important point here. I am doing what lawyers tend to do and that is to look at words and ask what they really mean. That is why I suggest that we have to get that word right.

The Act will come into force on the day on which the Rwanda treaty enters into force—that is what the Bill says. This means that your Lordships are being asked to say that, as from that very moment and without more, Rwanda is a safe country. I do not believe that your Lordships have been told enough to enable that judgment to be made. Moreover, as the Bill stands, the assumption seems to be that Rwanda will continue to be safe for ever after, come what may, because the decision-makers referred to in Clause 2 are required conclusively to assume that Rwanda is a safe country without any qualification whatever as to what may happen in the future. No provision is made anywhere in the Bill for what should be done if the facts were to change and everyone could see as clearly as daylight that Rwanda was no longer safe.

In view of a point that the Minister made a moment ago, I want to make it plain that I do not for a moment question the good faith of the Government of Rwanda when they entered into the agreement or when they seek to give effect to what the treaty says. I do not for a moment question their determination to fulfil the obligations that they are undertaking. That is not what my amendments are about. My first point is that before Rwanda can be judged to be a safe country, these obligations must be put into practice. Ratifying the treaty is an important step, but that is not enough. It needs to be implemented before Rwanda can be considered safe. Secondly, there must be some way of dealing with the situation if, for whatever reason, the facts change.

I do not want to take up time going over the ground in support of my first point. We discussed it very fully in Committee and on Report and we had the benefit of the report by the International Agreements Committee, under the chairmanship of the noble and learned Lord, Lord Goldsmith, which was approved by this House by a very large majority. It set out a list of the things that needed to be done before the treaty is put into operation. However, if the noble and learned Lord will forgive me, I will refer briefly to the Home Secretary’s letter of 14 March in response to his report, and to his reply of the same date. What they say reinforces my point that the treaty must be implemented before Rwanda can be considered safe and that the Bill should say so.

In his letter, the Home Secretary did not address any of the issues raised by the report. All he said was that the joint committee provided for by the treaty

“met last month to discuss readiness for operationalisation. Implementation continues apace” and that more steps needed to be taken. There were no further details. In his reply, the noble and learned Lord said

“since the Bill asks Parliament to declare that Rwanda is a safe country based on the provisions of the Treaty, it is important that Parliament should be satisfied that the Treaty has been fully implemented. That can only be done by updating Parliament in detail on the outstanding issues highlighted in the IAC Report”.

He asked for a “substantive response” by the end of last week

“so that Parliament has this information as it considers the final stages of the Bill”.

I am open to correction but, as far as I am aware, there has been no such response. We cannot let the matter lie there. That is why it is so important that Parliament should be advised by the monitoring committee that the mechanisms listed in the treaty for its implementation have been created, before Rwanda can be considered a safe country for the purposes of the Bill. I am grateful to the Minister for setting out what these measures are, as the treaty provides. That is what my amendment in lieu seeks to achieve.

As for my second point, which is about the future, there was an interesting feature about the debate in the Commons on Monday. We often complain that the Commons pay no attention to what we say, simply disregard our debates and carry on without listening or picking up what we have said. However, on this occasion, my amendments were picked up by three very experienced lawyers speaking from the Conservative Benches in the other place.

It is enough for me to refer as briefly as I can to what they actually said. Sir Jeremy Wright began the debate by saying that he could not accept my amendments because they transferred authority to say whether Rwanda remains a safe country to the monitoring committee. He said that could not be right, as the Bill is intended to give Parliament that authority. I accept that criticism and, indeed, my Amendment 3C in lieu does my best to make it clear that the authority lies with Parliament and not with the committee.

The debate in the other place did not end there, however. Sir Bob Neill said that he thought my amendments were fair and honest if facts change:

“Facts change, and if Parliament sets itself up as an arbiter and decider on fact, it must have a means of changing its decision if the facts change … Can we find a way forward?”

Sir Jeremy Wright then agreed. He said that my amendments, flawed as they were, raised the valid issue of what happens if Rwanda at any point falls below the standard expected of it to justify its safe-country status:

“it is simply not sensible for Parliament not to be able to say differently, save through primary legislation, if the facts were to change”.

He said that the Government should give some thought to the situation under the Bill:

“It must be right for Parliament to retain the capacity to reconsider and if necessary revise it”.—[Official Report, Commons, 18/3/24; cols. 678-80.]

Then Sir Robert Buckland said that he agreed with Sir Jeremy Wright’s point about giving authority to the monitoring committee to decide that Rwanda is no longer safe. He went on:

“The amendment is capable of perfection … there is force in their lordships pursuing that point, so that we marry up the reality with what we want to achieve legally”.—[Official Report, Commons, 18/3/24; col. 717.]

I regard that as an invitation for us to pass my amendment and send the matter back, so that the other place can consider the point. That, indeed, is what my amendments in lieu seek to do. Furthermore, in his reply, the Minister in the other place said that he would consider the points raised carefully, so my amendments, if approved by your Lordships, would give him that opportunity.

The point, however, really is this: if we do not send the matter back, the opportunity disappears because the point is not raised again. I know that some noble Lords feel that the Commons must have the last word, and that it is not really right to keep sending things back again, but on this occasion, in view of these invitations, I really invite those Lordships who are minded to take that view to think very carefully, because if we do not send it back, there is a hole in the Bill that needed to be filled and will be left empty and unfilled.

The noble and learned Lord quite rightly quoted the views of Sir Jeremy Wright, Sir Bob Neill and Sir Robert Buckland from the debate in the Commons on Monday night. He could also, in fairness, quote the response from the Minister, Mr Tomlinson. His response, if I have it right, was that what the Government were looking for by compensation for whether the Bill was actually working in practice was that this was the role of the monitoring committee. There is a danger here of extending the law beyond what is reasonable. There comes a certain point where the law has to be left where it is and the people on the ground—namely the monitoring committee, which is an independent body—have to be the guardians of what happens. Surely that is the role of the monitoring committee, and if it always has to refer back to Parliament, surely there is something deficient with its set-up. I therefore ask the noble and learned Lord to consider that. I understand why he would want this to be referred back by this House, but there is a role for the monitoring committee that we should not ignore.

I am extremely grateful to the noble Lord for his point. I imagine that the monitoring committee was put there at the request of His Majesty’s Government because something needed to be done to keep an eye on what was going on in Rwanda. It is made up of people who are independently appointed, with no allegiance to either Government, so one can trust them as looking at the matter dispassionately, and therefore their advice can be trusted. That is why I have introduced the monitoring committee into my amendments as the best way of finding out whether the treaty is being properly implemented.

If I followed the noble Lord’s intervention correctly, I agree with what he is saying. However, on the other hand, I accept the point made by Sir Jeremy Wright that, in the end, Parliament has to have the final say based on the advice which it receives. There has to be some mechanism so Parliament can comment on it before the fact that Rwanda is safe is reversed. How that is to be done I simply do not know, which is why I am anxious that the Government should be able to have another look at it and decide how best to proceed. However, I thought it right that Parliament should have an opportunity to comment before the conclusion is reached that Rwanda is no longer safe. I hope that answers the noble Lord’s question.

The Minister in the other place said that my amendments should be resisted because they risk

“disturbing the independence and impartiality of the monitoring committee”.—[Official Report, Commons, 18/3/24; col. 663.]

I simply do not understand that, because the members are all independent and nothing in my amendments would in any way undermine their independence. I am very glad that the Minister here, when he was introducing this debate, did not put that point forward as a reason for resisting my amendments.

As for the Commons reasons set out in the Marshalled List, which I think the Minister here endorsed, they say that

“it is not appropriate … to legislate for Rwanda adhering to its obligations under the Treaty”, as those obligations

“will be subject to the monitoring provisions set out in the Treaty”.

However, that fails to address the problem that is created by the use of “is”, especially should something go wrong and it is apparent to the monitoring committee that Rwanda is no longer safe. I think the Minister was suggesting that in some way it was wrong that the Government should enter into discussions with the monitoring committee, and that in a way that would undermine its independence. However, I am not asking for that. I am simply asking for it to receive advice—that is all. The advice is given; I am not suggesting that it needs to be discussed or indeed that there should be any sort of conversation, simply that it would be given.

I have probably said enough to make my points clear, and for the reasons I have given, I beg to move.

My Lords, I will update the House on a further development in relation to the amendment in the name of the noble and learned Lord, Lord Hope. We had the privilege in the Constitution Committee this morning to have the Lord Chancellor give evidence to us. We spoke of the Rwanda Bill and raised specifically with him the question that the effect of the Bill is to say that Rwanda “is” a safe country, and that the Bill once passed means that for ever and ever it will be treated as a safe country. His response, unprompted, was that one of the great protections was the monitoring committee. He said that if the monitoring committee said that the provisions of the treaty were not being adhered to and that was made public—he envisaged that it would be made public —the consequence would be that it could lead to some sort of parliamentary debate or occasion. What he had in mind was not the automatic non-application of the Bill, as with the amendment of the noble and learned Lord. However, there is not much difference between what the noble and learned Lord proposes—namely, that if the monitoring committee says it is not being adhered to, it stops applying—and what the Lord Chancellor said: namely, that there would be the opportunity for a parliamentary occasion. Therefore, I strongly support what the noble and learned Lord said. An unanswerable part of his argument is that this must be sent back to the Commons so that it can express a view and we can hear more from the Lord Chancellor in relation to this.

On a completely separate point, I apologise for interrupting the noble Lord, Lord Sharpe, before the Question was put. He said that the Rwandan Government— I am not sure quite how it works—were going to put a Bill somehow to the Rwandan Parliament to implement the terms of the treaty. That is separate from the point that the noble Lord, Lord Murray, made. Could the noble Lord, Lord Sharpe, give an assurance to the House that the treaty will not be ratified and, therefore, that the Bill will not come into force until the Rwandan Bill has gone through its Parliament and been given effect to?

My Lords, Rwanda is a safe country, Rwanda will always be a safe country. How can I say that? Because shortly we will have an Act that makes it legal fact. But, no matter how often I repeat it to myself, I just cannot make it stick. That is why I think these two amendments in lieu from the noble and learned Lord, Lord Hope, are so important. I refer to Amendments 3B and 3C, which will undoubtedly improve this Bill substantially.

I will mention one other factor. A few kilometres away, over the border in the Democratic Republic of the Congo, there is a war going on. More than 100 armed groups are involved in this conflict, and the M23 is in an escalating battle for Goma with the Democratic Republic of the Congo’s troops. This is just a few miles across the border. The situation was described by UNHCR as “catastrophic”. Hundreds of thousands of people have been displaced. This is just across the border from Rwanda. I am not going to get into arguments about whether Rwanda at this precise moment is safe, but surely we need to look at what is happening just over the border and put in the amendments the noble and learned Lord has suggested so that we can deal with the situation should it change.

My Lords, I wonder whether we are making rather heavy weather of this. Surely, the objective is that, if the situation changes in Rwanda, we stop sending people there. Do we not have a thing called an embassy? Could it not tell us? Is it not going to be in touch with the people on the ground and the administrators of the scheme? It can advise the Government, and if the Government say it is going badly, out we go—pack it up. It is quite simple.

My Lords, I am puzzled by this amendment. For 18 years, between 2004 and 2022, we had on the statute book an Act of Parliament which said there was an irrebuttable presumption that certain countries on a list were and would always be safe. I do not recall any Member of this Chamber, or anyone in the other Chamber when I was there, demurring. We had on the statute book an Act of Parliament that had no provision for a monitoring committee, and I do not remember any Member of this Chamber or that Chamber complaining about that. For 18 years, we had provisions which had none of the safeguards that the noble and learned Lord, Lord Hope, wants to include—and I do not recall him or any other Member of this Chamber demurring.

As I understand it, the only difference was that we were required to have that list by our membership of the European Union and still would have that list now if we had not left the European Union—and I do not recall anybody in this House saying it was wrong that that situation should persist or using it as an argument for leaving the European Union, so that we could then get rid of it, as we did. So, I think we are now making a bit too much of the lack of provisions and safeguards around one black country when we had no concerns about a list of white countries.

Is it not the case that that legislation did not simply lack the controls advocated by the noble and learned Lord, Lord Hope? It did not have the controls that are in this Bill. There was no monitoring committee. It simply did not have these controls in that legislation.

My noble friend is absolutely right, as he always is.

My Lords, I declare my interest as set out in the register that I am supported by RAMP. I am grateful for the history lesson, but, as the most reverend Primate the Archbishop of Canterbury told us, two wrongs do not make a right, and certainly it was without the history of my time in this House and beforehand. We are dealing with this issue, this country and a Bill about this country, and doing it in the right way.

These amendments seek to build on a view that this House has already taken. The fact is that the treaty is locked into the Bill and we are being asked to affirm that the treaty has made Rwanda a safe country. That is not the view of this House. This House made a determination that it should not ratify the Bill until such time as the conditions placed by the International Agreements Committee were put into operation.

This discussion has gone on through a variety of different parts of this House and its Select Committees, but the significant one was the Government’s response to the Joint Committee on Human Rights. I know Members hoped that the report would reach us before Third Reading, but in fact it did not. It was published the day after, so we did not have time to consider it at that point. What the Government said in response is something they have indicated in other statements:

“We will not ratify the treaty until the UK and Rwanda agree that all necessary measures in the treaty are in place”.

However, in subsequent discussions the Government could not tell us which measures were in place and which measures were about to be in place. The noble and learned Lord, Lord Stewart of Dirleton, said in one of his responses that we were “working towards” the country being safe. It is clear that the Government are asking Parliament not only to declare a fact contrary to a finding of fact by the highest court in the land but to believe in the effectiveness of measures set out by the Government to ensure safety that are not yet fully implemented.

For example, the Minister has already referred to the fact that domestic legislation has still to be passed in Rwanda, including and in particular laws on the processes for making immigration decisions and laws for dealing with appeals. These new laws are to be followed by appropriate training and guidance for practitioners before they can be put into operation.

We are also mindful that David Neal, the former Borders and Immigration inspector, gave evidence to a committee of this House yesterday. He told the committee there were pieces of work that the inspectorate did in relation to the safety of Rwanda that were not yet in the public domain. In particular, he referred to the Home Office’s Rwanda country information report, which was subject to Supreme Court scrutiny but, as we understand it, is complete but not yet published. Other material has also not been scrutinised by our independent inspector because there is no longer one in place.

We are told by the Government that we have sufficient material before us to judge that Rwanda is safe. Putting aside the question of whether Parliament is the right place for people to judge whether a country is safe—we think it might not be—we are being asked, with the Bill, to make that decision ourselves. That it is safe was not the view of this House, and the House made a decision on what it wanted to see before it could determine that it was indeed safe. Now the Government are intent on telling us to change our minds. That is what the Government have to convince us to do. This House has taken its view. That view is now before us and the Government are asking us to change our minds —without the exact evidence that the House required being provided.

These are all areas of concern that make it clear to us that the very basic safeguards that the Home Office has set out in the treaty need to be fully implemented before the Bill is passed. These amendments are crucial to making that happen because they would protect us both now and in the future. We on these Benches are pleased to support them.

My Lords, we are very pleased to say that should the noble and learned Lord, Lord Hope, wish to test the opinion of the House with respect to Motions B1 and B2, we would be very supportive of them as well. I just say to the noble and learned Lord, Lord Hope, that the change he has made in Motion B1 from “is” to “will be” is a very significant change, and indeed goes to the heart of the problem that this House has considered on many occasions; namely, that the Government’s declaration in the Bill is that Rwanda is safe and in the treaty that it will be safe should the mechanisms contained within the treaty be put in place. I find it incredible that the Government cannot accept what is basically a very simple amendment, which in a sense puts into practice what the Government themselves have accepted.

I will just reinforce to the noble Lord, Lord Sharpe, the point that the noble and learned Lord, Lord Hope, made, that the Minister in the other place implied that there was something to think about here and that the Government needed to think about how they responded to Amendments 2 and 3—as they were then—that had gone to the other place. That is why it is really important. Again, it goes back to what I said in the initial part of this debate: when the other place just dismisses amendments, it also denies itself the opportunity to properly reflect on a Bill and how it might improve it. This debate that we are having very much proves the point that we need to pass the amendments of the noble and learned Lord, Lord Hope. The Government may wish to adapt part of it to make it more consistent with what they themselves think. None the less, it is a really important amendment. As I say, we would be happy to support the noble and learned Lord, Lord Hope, should he choose to test the opinion of the House.

My Lords, I am very grateful for the contributions of noble Lords to this debate. I am grateful in particular to the noble and learned Lord, Lord Hope, for the very gracious way he introduced his amendments, as ever.

It is unnecessary, however, to record on the face of the Bill the position the Bill already sets out in Clause 9. This Act comes into force on the day on which the Rwanda treaty enters into force. The treaty sets out the international legal commitments that the UK and 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 UK Supreme Court’s conclusions.

I am very grateful to my noble friends Lord Howard, Lord Lilley and Lord Horam for pointing out, perhaps rather gently, that the noble and learned Lord, Lord Hope, is placing not much faith in the safeguards that the real-time monitoring committee will offer. We believe that this will be much more effective than any other form of scrutiny. My noble and learned friend went through the monitoring committee’s terms of reference in the last group, and I will not repeat those. I will say that the enhanced monitoring that has been discussed—the enhanced phase—will take place over the first three months on a daily basis. An enhanced phase will ensure that monitoring and reporting take place in real time, so that the independent monitoring committee can rapidly identify, address and respond to any shortcomings or failures to comply with the obligations in the treaty and identify areas for improvement, or indeed urgently escalate issues prior to any shortcomings or breaches placing a relocated individual at real risk of harm. That will include reporting to the joint committee co-chairs within 24 hours in emergency or urgent situations. I could go through the various minimum levels of assurance that have been agreed by the monitoring committee, but I fear I would lose the patience of your Lordships.

I have made it crystal clear that the Government will ratify the treaty in the UK only once we agree with Rwanda that all necessary implementation is in place for both countries to comply with the obligations under the treaty. We have assurances from the Government of Rwanda that the implementation of all measures within the treaty will be expedited, and I am grateful for all the work that continues to be done by officials in the Government of Rwanda.

Just to conclude, again I agree with my noble friends Lord Lilley and Lord Howard, that the proper parliamentary response to any changes is of course to change the legislation, either by amendment or appeal. On that basis—

Before my noble friend sits down, he will have heard the noble and learned Lord, Lord Falconer, tell us what the Lord Chancellor said about a parliamentary occasion if the monitoring committee was to advise that Rwanda was not safe. Would my noble friend care to tell us what the parliamentary occasion would be?

Well, no. As I was not party to the comments of the Lord Chancellor, I think it would be very foolish of me to try to second-guess what he may have meant by that comment.

My Lords, I am very grateful to all noble Lords who have spoken in this debate, particularly the Minister, for the careful way in which he replied. There is only one thing I should say, and it is in response to the noble Lord, Lord Lilley: he is absolutely right that there was a list of safe countries in that legislation, and it certainly did not occur to me to question the proposition in that Bill.

But everything depends on the context, and we are dealing here with a Bill that has fenced around with barbed wire every possible occasion, as I said on an earlier occasion, to prevent anybody bringing any kind of court challenge whatever to protect their human rights and other rights in the event of their being faced with being sent to Rwanda. That context transforms the situation entirely from the measure the noble Lord was talking about. That is why, I suggest, it is so important to get the wording of that crucial sentence in Clause 1(2) of the Bill right. It is for that reason that I wish to test the opinion of the House.

Ayes 285, Noes 230.

Motion B1 agreed.