I am another supporter of Amendment 3. Clause 1 is an example of the current vogue for starting Bills not with operative provisions but with preambular statements of the obvious, a custom which is always irritating but normally harmless. However, there is harm, not just silliness, in Clause 1(2)(b) with its rather grand invocation of
“the judgement of Parliament that the Republic of Rwanda is a safe country”,
a judgment for all time, apparently, that there is no provision to revisit or change. That invocation is unnecessary and contrary to principle. It is unnecessary because there are other ways for Rwanda to be declared or deemed safe. The Secretary of State could be entrusted with the decision or, if it really is necessary for Parliament to take it, there could at least be a power for the Secretary of State to amend it in the light of changed conditions, as was the case with Section 75 of the Illegal Migration Act 2023.
It is contrary to principle because it requires us to come to a judgment on a fact-specific life-and-death matter on which, frankly, we are ill equipped to adjudicate. Of course, this is not the first time that such a thing has happen. It was tried in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, when the countries of the European Economic Area—all signatories to the ECHR—were deemed, beyond rebuttal, to be safe. That experiment, a requirement of European Union law, was not a successful one. Its unwieldiness was demonstrated in the case of Nasseri. The Judicial Committee of the House of Lords dismissed a challenge to the safety of Greece but, through the noble and learned Lord, Lord Hoffmann, whom I am delighted to see in his place, indicated that the courts might have to issue a declaration of incompatibility if the deeming provision was contradicted by the evidence. The issue was sensibly addressed in the Nationality and Borders Act 2022 by transforming the irrebuttable presumption into a rebuttable one.
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No such good sense is on display in Clause 1(2)(b), which is a much more contentious provision because of its very different context. It asks us to state definitively that Rwanda is safe, when all the evidence points the other way—in particular, the verdict of our own Supreme Court, which identified defects that it did not consider solvable in the short term, and the judgment of our International Agreements Committee, which we endorsed by a healthy majority when we voted on it on 22 January.
Of course, we can do anything we want, but this does not mean that it is sensible to do so. As the Joint Committee on Human Rights put it in its report of this morning:
“the courts remain the most appropriate branch of the state to resolve contested issues of fact”.
A unanimous Constitution Committee, on which I serve, went a little further last week when it described this clause as “constitutionally inappropriate”. It invoked both the rule of law and the separation of powers.
I emphasise the practical point that this clause puts Parliament on a quite unnecessary collision course with the courts, both domestic and international. Amendment 3 would not solve all the Bill’s problems; it would not even stop Clause 1 from being pointless, but it would at least render it harmless and that is why I support it.