It is a pleasure to follow the right hon. Member for Kingston upon Hull North (Dame Diana Johnson), the Chair of the Home Affairs Committee. I rise to speak to amendments 28, 29 and 30 tabled in my name. Although they would amend clause 9, they relate to the operation of clause 2; hence their selection for debate today.
It is important that we focus on what clause 2 actually means, what its effect is and what the changed reality is with regard to the position in Rwanda—and, indeed, the position between the United Kingdom and Rwanda—since the decision of the Supreme Court in November and since the facts on which it based its decision, which relate to the spring and early summer of 2022. There is no doubt that matters have moved on significantly. We have not only a treaty between the United Kingdom and Rwanda, which was signed late last year, but an indication in the form of a policy document published by the Government, and indeed further information, as to the hard and fast changes that the Rwandan Government will be making to, in effect, answer the questions asked of it by the Supreme Court decision.
The Supreme Court decision really was not about the law; it was about the evidence. When we look at what the Supreme Court justices decided, we see that it was very much narrowed down to whether refoulement was still likely, bearing in mind the position of Rwanda. The Court decided that it was, and that is the sole reason why the policy was held to be unlawful. Other grounds were tendered in that case, including one on retained EU law. A specific ruling of the Court was that that did not apply; the law was clear that that part of retained EU law had fallen with our departure from the EU. Other aspects of the appeal
were not ruled on by the Court. The decision was not, for example, based on compatibility with the ECHR. Importantly, the decision was not based on a challenge, which was upheld, to the legality of the removal of people to third countries.
In my view, it is neither illegal nor immoral to seek third-country assistance when it comes to this unprecedented challenge. Indeed, other European countries either are doing it or wish to do it. My right hon. Friend the Member for Newark (Robert Jenrick) was right to say that other countries are looking to what happens here and to the precedent that we might set.
In setting precedents, we have to tread carefully. That is why the amendments that I tabled are very much focused on the factual reality and the need to ensure that Rwanda does indeed carry out its policies. When we look carefully at the policy statement, we see that particular tasks will need to be completed, including new operational training for decision makers in Rwanda—I think the latest figures show that over 100 people have now been trained to implement the deal—and the need for clear standard operating procedures with regard to the reception and accommodation arrangements for asylum seekers, the safeguarding of their welfare and access to healthcare.
Of course, there needs to be strengthened procedural oversight of the migration and economic development partnership agreed in 2022 and the asylum processes under it. That means that bodies have to be set up—the new MEDP co-ordination unit and the MEDP monitoring committee of experts. The involvement of experts is needed, certainly in the early days of the decision making to be made by the new body, which will be set up by the Government of Rwanda. There will be a new appeal body that consists of panels of three judges, with subject-matter experts, including Rwandan judges and judges from other Commonwealth jurisdictions. All those details are important, because they go towards answering the question, which I think will be answered in the affirmative: that individuals in the scheme will not be at risk of refoulement and, therefore, there will not be a breach of the 1951 convention.
That reality has to match the deeming provision. I know that my hon. and learned Friend the Minister will be anxious to ensure that deeming provisions do not either perpetuate or encourage legal fictions. This is difficult law, but it is not unprecedented. Deeming provisions are used often in tax legislation. The leading authority is fairly recent: Fowler v. Her Majesty’s Revenue and Customs back in 2020 in the Supreme Court, in which Lord Briggs made it clear that deeming provisions creating statutory fictions should be followed as far as required for the purposes for which the deeming provision was created, but the production of unjust, absurd or anomalous results will not be encouraged. That is clearly somewhere that the courts do not wish to tread or to encourage, and neither should we as a Government or a Parliament.
We must dovetail the coming into force of the deeming provisions with the reality on the ground in Rwanda, so that we create not a statutory fiction but a series of facts reinforced by statute. That degree of care does not have to take ages—it can be done in weeks, bearing in mind the quick work that has been done already. That would go a long way to satisfying the natural concerns that many of us have about the use of such provisions. We
understand why they have to be made, and we do not oppose the principle of their use, but I simply caution that we take care to make sure that we get that co-ordination right.
Many of us have been down the road of discussing ouster before, and it can take many forms. There have been examples where ouster proceedings and clauses have clearly not worked, and they are not the sole province of this Government. Previous Labour Governments tried to enact bold and sweeping ouster clauses, only to find that their efforts fell flat either before the Act became law or as a result of court intervention. I think of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, when Labour tried to be too extensive and expansive.
Experience has taught us that where we have clearly defined reasons—and, importantly, limited exceptions—ouster clauses will work. We had a recent example of that in the removal of the Cart jurisdiction in the Judicial Review and Courts Act 2022, where my hon. and learned Friend the Minister finished the job that I started. In the consultation on the judicial review, my noble friend Lord Faulks and others embarked upon those provisions at my direction. That worked—it has been tested not just in the High Court but in the Court of Appeal in the Oceana case, and it is held to be sound and watertight. Why? Because there was a clear rationale behind it, and there were limited exceptions. Herein lies the danger posed by the otherwise well-intentioned amendments by my right hon. and hon. Friends: without those limited exceptions, we are setting the Bill up to fail. That is what history has taught us.
I am a strong believer that it is from this place that the core of our constitution comes. It is from Parliament that our constitutional authority is derived. To contradict the hon. Member for Aberavon (Stephen Kinnock), who in many respects couched his remarks well, we do not have a separation of powers constitution. We have a checks and balances constitution, where each part of the body politic respects each other. I do agree with him that restraint is an important principle.