My Lords, I am again grateful to the noble Lord. However, his second central point was the big constitutional one: that Parliament is sovereign—that is pretty much it—and that the Supreme Court’s decision on 15 November was mere opinion rather than a determinative finding of fact in our system. I am afraid that I must disagree with him on that, in essence for the reasons outlined later in the debate by my noble and learned friend Lord Falconer. He in turn echoed some of the points made by the noble Lord, Lord Clarke of Nottingham, at Second Reading about the dangers that lie in the future should it be possible, in our country, for Governments with large majorities, of whatever stripe, to use legislation to change not only any old finding of fact but a finding of fact that was made recently by our highest court. That is not only silly, to echo the noble and
learned Lord, Lord Garnier, but very dangerous in a democracy that is built, fundamentally and first, on the rule of law. Parliamentary sovereignty follows, but Parliament, and the Executive in particular, must have a little respect for the independent referees of our democratic system.
I was grateful to the noble Baroness, Lady Helic, for making the international point that follows from that: that the domestic rule of law is the bedrock of our system, but a quarter of the way into the 21st century, so is the international rule of law. All sorts of terrible consequences come when we do not respect that. She cited wars of aggression and war crimes that, in turn, drive a displacement of people that is leading to the refugee crisis that Governments around the world are trying to respond to. Therefore, she is a great proponent of the international rules-based order, as we know from her other work.
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I am also very grateful to the right reverend Prelate the Bishop of Southwark for speaking on behalf of his Benches. He reminded us of our duty of care to refugees. Like me, he and the Church are uncomfortable with offshoring at all. None the less, they are engaging with the process—not a wrecking process but a constitutional compromise. That is the spirit with which I have tried to address the objections from the noble Lord, Lord Howard.
Therefore, I am also grateful to the noble Lord, Lord Hannay, for asking what, ultimately, is the Government’s problem when what we are trying to do is to make sure that there will be further factual assessments to meet, for example, the tests of your Lordships’ International Agreements Committee, to make sure that Rwanda has become safe, per the terms of the treaty, before we deem it so. These are not wrecking amendments, but an attempt to do our duty.
On the contribution from the noble Viscount, Lord Hailsham, I hope that he will not be cross with me for suggesting that he has really done his father proud today. That famous speech that so many of us read as students about the “elective dictatorship” was in itself an answer to his noble friend Lord Howard, although it was made in 1976. Parliament is not just the House of Commons. Whether we like it or not, and whether we would all vote ourselves out of business, Parliament is both Houses in the current system. Parliament is not interchangeable with the Government of the day, however large their majority. We need to have checks and balances, and, at the moment in our system, for all our defects in your Lordships’ House, we are one of the Houses of Parliament, and Parliament is not interchangeable with government.
The noble Viscount went on to talk about how facts must be examined by the due process of law. I know that this might irritate the Minister, but he was right to flag future groups of amendments, because they are all so interchangeable in the scheme of what is a very short, but hugely controversial, Bill. If it is not to be the UNHCR, there must be some other process of examining the facts on the ground before Parliament just signs up with the Government of the day and says that dogs are cats. That is also what I say to the noble and learned Lord, Lord Garnier.
I think that most, if not all, Members of the Committee would agree that the contribution from the noble Lord, Lord Tugendhat, was incredibly powerful and poignant. I repeat the point from Second Reading that this is a very un-Conservative Bill. Whatever one thought about the late Lady Thatcher, she was committed to the domestic and international rule of law. Despite politics that we would find controversial on our Benches, she was committed to the rule of law. Those who served her as Attorneys-General said that that was their experience, too.
My noble and learned friend Lord Falconer of Thoroton represented the Constitution Committee with great precision and not a bit of passion. He spoke of the 70-year commitment that this country has had to non-refoulement, which many of us now believe is part of customary international law rather just one treaty or another. He echoed your Lordships’ International Agreements Committee in saying that a lot more needs to be done before the Rwanda treaty can be the safeguard that the Government rely on. That is a lot of administrative and cultural change on the ground that does not happen overnight; it does not happen overnight in our own Home Office, let alone in the Republic of Rwanda.
I was grateful also to the noble Lord, Lord Alton, for representing the Joint Committee on Human Rights, with its own similar—and further—criticisms of the Bill in its current form. His response to my noble friend Lady Ritchie of Downpatrick was also important in acknowledging the violence that we may be doing to that precious settlement in Northern Ireland every time we violate international law, and the ECHR in particular.
I was particularly grateful to the noble Lord, Lord Horam, for the way in which he engaged—which was similar to the manner in which the noble Lord, Lord Howard, did so—and for his rather honest reflection that we have unsatisfactory safe legal routes to this country at the moment and the Bill does not address any of that. He said he would like to prioritise refugees over economic migrants, and I listened to his comments carefully.
I think I may have dealt with the concerns of the noble Lord, Lord Kerr of Kinlochard, in what I said about the ECHR.
I am so grateful for my noble friend Lord Coaker’s support for the broad thrust of this suite of amendments. In particular, it is so comforting to know that any incumbent Labour Government will be committed to the international and domestic rule of law.
Finally, I say to the Minister, if the Rwanda treaty is, as he said, binding and sufficient, was not the refugee convention of 1951 binding and sufficient as well? It is a slightly circular argument to rely on one and not so much on the other.
We are not traducing Rwanda. We are just honouring the recommendations of committees of this House, and of our Supreme Court. That is why we must have in the Bill a commitment to compliance with the law; we must substitute “is” safe with “may become” safe, because that is the truth; we must have some kind of independent fact-finding assessment before we say
that Rwanda is safe; safety must be only a rebuttable presumption, as in keeping with prior statutes—including Conservative asylum statutes; and the courts must not be ousted from their proper role in our constitution, which is fact finding and rights protecting. However, for the moment, I beg leave to withdraw my amendment.