I have always walked in sunlight; it is others who have perhaps walked through a veil of shadows. We will draw a veil over that. In the spirit of my hon. Friend’s helpful intervention, I have mentioned to him that I thought that clause 5 was unnecessary. It is even more unnecessary now, because the reforms that I referred to in a previous speech on the Bill about rule 39 have now been clarified by practice direction. The threshold that the European Court will apply will be, again, a much higher one. I therefore think that the occasions where we could see it invoked in the Rwanda case would be vanishingly small—in fact, non-existent. It seems to me that any harm that might be judged to have been caused is clearly revocable in the form of a return of those individuals from Rwanda. That, frankly, should have been the position the last time round; the reforms of the European Court make that even clearer.
That makes a powerful general point, which supports the excellent arguments made by my hon. Friend the Member for Ruislip, Northwood and Pinner (David Simmonds) about the direction of travel of the Court. I strongly agree with him about the recent climate change decision, which was a wrong turn. We should be very much going back to fundamental human rights, and not talking about socioeconomic rights or trying to make everything into some form of right. Surely it is better to legislate for statutory duties and obligations by public bodies, rather than creating nebulous rights that then become the province of the courts. Herein lies the difficulty that we still encounter in the second batch of amendments—Lords amendments 3B and 3C—which I am still minded to support.
Whether we like it or not, the Supreme Court assessed evidence and substituted its own view for that of the decision makers. The noble Lord Howard of Lympne made a powerful speech in the other place about the wisdom or otherwise of going down that road. I agree with a lot of what the noble Lord said. I do not like it when I see courts of higher record in effect relitigating matters of evidence, which is what the Supreme Court did, but that is the situation that we have. That is why the Bill has come forward, and my abiding concern about deeming provisions, which I accept are not unprecedented, is that they should match reality.
That is why I press my right hon. and learned Friend the Minister to answer some of the points made in the other place about the progress being made by the Government of Rwanda, not only in legislating for its treaty obligations—it has a monist system, so the treaty is already in force—but in carrying out the obligations it agreed to in the treaty, namely the reform of its appeal system and the use of trained advisers. Those are all measures that would go a huge way to reassuring not just me but any court that might be seized of this matter in the near future that all is proceeding well. The Scottish
Lord Advocate seemed to concede in the other place that there needed to be full treaty implementation before the treaty was ratified. If that is the case, we are arguing over little. That is why I still commend those amendments.
I will now deal with the next questions, which relate to the arguments again trenchantly put by my hon. Friend the Member for Ruislip, Northwood and Pinner. I agree with him about the danger of proxy judicial reviews based on the Children Act 1989 and care legislation. We need to take great care about that. Like him, I am not persuaded that there is merit in supporting the Lords amendments on that issue.
I am also encouraged—though still concerned—about the modern-day slavery position. I am encouraged that here alone in the Government’s response to the Lords amendments, they have come up with an amendment in lieu: amendment (a) to Lords amendment 9. I am prepared to support that, bearing in mind the sensitive and important nature of this legislation and the need to avoid us riding a coach and horses through the progress we have made, in terms of this country’s leadership on modern-day slavery. I am prepared to give the Minister the benefit of the doubt and support the amendment in lieu.
My abiding concern remains for a class of people who served our country, who endured great danger in Afghanistan, who still find themselves in danger in a third country—namely Pakistan—and who may well fall foul of an entirely unintended consequence as a result of this legislation, however well intentioned it may be. That is why I am still not persuaded on Lords amendment 10B. The Government have moved on that—we are in an iterative process with the Lords messages—and I agree with the right hon. Member for Kingston upon Hull North (Dame Diana Johnson), who reminded us of the invaluable role that the deliberative Chamber has in making sure that legislation is tested and up to the level of events.
We should not ignore what was said in the Lords about the evidential situation in Rwanda. That is the reality, and that is why when we pass legislation here, we should do everything we can to avoid legislative fiction. It is not good law. It creates a glass jaw, which can be broken by litigation and by judicial challenge, and we find the courts once again back in a position where I do not think any of us, least of all Conservative constitutionalists, want to see them. Let us legislate with care on this matter, and let us get it right.