My Lords, I have four amendments in this group: Amendment 6, 14, 20 and 26. They are all part of a single package. They are designed to address, in a slightly different way, the points that have been debated in the two previous groups. In a way, we are on very familiar ground, because we have covered the ground in considerable detail, particularly in the exchanges with the noble and learned Lord, Lord Stewart, at the end of the last group.
I take the Committee directly to the wording of Clause 1(2)(b). That clause states, as we know, that the
“Act gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country”.
I am concerned with the word “is”. By way of preamble, I am not speaking entirely for myself in being unduly troubled by the fact that the Government are asking
your Lordships to reverse the finding of the UK Supreme Court of 15 November last year. The court said that there were:
“substantial grounds for believing that the removal”
of claimants
“to Rwanda would expose them to a real risk of ill treatment, as a consequence of refoulement”.
In other words, it was not a safe country as defined for the purposes of the Bill by Clause 1(5).
However, that finding was based on the evidence which was before the court. Indeed, that was evidence which was before the Divisional Court a year before in 2022, as the noble Lord, Lord Murray of Blidworth, reminded us. In a sense, it was talking about material which has moved on. At least, other things have moved on since the facts were gathered together, which was the basis of that finding. It is important to note that the document which was available at that time was not the treaty but the then memorandum of understanding between the two Governments, entered into in April 2022. That had some quite important differences to what we now find in the treaty.
As all judges know, decisions on matters of fact are open to review if there has been a material change of circumstances. I am very far from saying that there has been a sufficient material change to justify a different finding, but in principle, that finding is open to be looked at again if the circumstances change. Certainly, things have moved on since 2022. As I mentioned a moment ago, there is a new treaty. As for Parliament taking upon itself the responsibility of making the judgment referred to in Clause 1(2)(b), I suggest that one has to be quite sanguine about it and just recognise that there are circumstances where judgments can be looked at again. No judge is going to be particularly aggrieved if people suggest that this should be so.
If I was still in the Supreme Court, I would just shrug my shoulders at this and let Parliament carry on and do what it likes, as indeed it can. The President of the Supreme Court, the noble and learned Lord, Lord Reed of Allermuir, is a Member of this House, but unfortunately, he is disqualified by reason of his office from coming to address us. There is a mechanism by which, if he was unduly troubled, he could submit in writing his views for us to take into account. So far as I know, he has not done that, and I am not greatly surprised that he did not think it necessary to do that.
When I said that Parliament can do what it likes—even if, as is plainly the case here, what it is doing is plainly in conflict with our international obligations and therefore deeply regrettable—it must think very carefully about what it is doing. It must be careful in the choice of words. If it is going to take the place of judges who are very careful in their choice of words when they issue their judgments, it must exercise the same degree of care and skill. That is all the more important in view of the way the Bill gives effect to the judgment. It is surrounded by so many barbed-wire fences, all designed to prevent that judgment ever being challenged in any UK court under any circumstances. This means that the judgment your Lordships are being asked to make is crucial to the safety, lives and well-being of everyone, wherever they come from, who are at risk of being removed to Rwanda.
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As I have said many times in this House, words matter. That is why the choice of the word “is” is so important. I suggest to your Lordships that its use here is so wrong, as the exchanges at the end of the last group demonstrated so powerfully. It refers to the state of facts when the treaty comes into force, which, looking at the end of the Bill, is the Bill’s commencement date. It asserts that from that very moment, simply because the treaty is then in force, Rwanda is a safe country.
Furthermore, the use of the word “is” asserts that it continues to be a safe country and must be treated as such by any decision-maker for ever after, whatever has happened and whatever the circumstances, so long as the Act remains in force. I simply cannot, in all conscience, make that judgment. The words “is a safe country” would be fine if one were simply creating a slogan or defining an aspiration, but that is not what we are dealing with. This is legislation that, as Clause 9(2) tells us,
“applies to any decision by a decision-maker relating to the removal of a person to the Republic of Rwanda that is made on or after the … Treaty enters into force”.
It has no regard to the safety of all those who are at risk of removal, wherever they come from, if they are exposed to the risk of refoulement while they are there.
There is a crucial difference between building legislation around a judgment of fact relating to the laws of physics, or propositions about things that have existed for all time and will not change, and what your Lordships are being asked to form a judgment about here. For example, there could be no objection to Parliament basing legislation around a declaration that, in its judgment, the earth is round. That might have startled some people a century or so ago, but not now, as we know it to be true and, furthermore, we know that it will never change. What we are dealing with here is human behaviour: people will have to implement the Rwanda treaty, so one has to be assured that they have the practical ability to fulfil the assurances being given.
I do not for a moment doubt the integrity and good faith of the Government of Rwanda. The parties have committed themselves to clear and binding obligations as to how the treaty is to be secured. They have committed themselves to taking all steps necessary or appropriate to ensure that these obligations can be, and are in fact being, complied with. But when you have to rely on people to achieve those things, there is always a question of whether they will always do what they are told to do, or indeed whether they are capable of doing what they are told to do. That is why the treaty itself provides for a monitoring process to see that what the treaty provides for actually happens.
The implementation of those obligations lies in the future, as do the making and bringing into force of the new Rwanda asylum law—which is not yet in force but nevertheless essential—designed to strengthen the decision-making and associated appeals processes. The Government’s policy statement of 11 January 2024 states that that will happen “in the coming months”, so it seems that it may well not be there when the treaty comes into force. To adopt a phrase used by the noble and learned Lord, Lord Stewart, the arrangements
that we are working towards are a goal for something in the future that we cannot be assured will be there or will be achieved by the date when the Act commences. There are also the 10 points noted by the IAC and now very helpfully listed in proposed new subsection (1A)(c) in Amendment 84 from the noble Lord, Lord German, which was discussed in the last group. I am extremely grateful to him, because it illustrates the point that I am trying to make. That is the background to my amendments, which are very simple.
My Amendment 6 would remove the words “is a safe country”, which I submit are wholly misguided. Indeed, it became clear in the exchanges with the noble and learned Lord, Lord Stewart, that it was embarrassing for him that he was trying to assert that the word “is” really means what it says. I would replace it with the words
“will be a safe country when, and only so long as, the arrangements provided for in the Rwanda Treaty have been fully implemented and are being adhered to in practice”.
That is a formula that I would have thought the Government could perfectly well accept, because they believe that the Rwanda treaty is doing what is needed, so they would not be troubled at all by adopting those words. If they did, it would certainly reassure a lot of us who are deeply worried about the reliability of what we were being told. I encourage the Minister to look carefully at my wording and consider whether there is anything to object to. It does not in any way seek to undermine the Bill. It uses the words that any judge would use if he were forming the judgment that we are being asked to make.
My Amendments 20 and 26 would qualify the directions that are given to every decision-maker, and to the courts and tribunals mentioned in Clause 2, so that they are qualified to the same effect. My Amendment 14, which is an essential part of the package,
“seeks to provide a means by which it can be determined”
whether
“the Rwanda Treaty has been, and continues to be, fully implemented”.
I think that it is the feeling across the Committee that we really cannot just accept the Government’s assurance; there has to be some method of checking that the implementation is taking place and that it will continue to be the case in the future.
Two other means of addressing this vital issue are proposed in this group: in the amendments in the name of my noble friend Lord Anderson of Ipswich, and in Amendment 64 in the name of the noble Lord, Lord Coaker. So there are three solutions on the table. I am simply putting one forward, with no claim to priority in any way; it is just another solution that I suggest should be weighed up against the others.
My approach—which is, I think, in line with the point that the noble Lord, Lord Ponsonby, made in his comments on the last group—is not to do something that would have the possibility of delaying the Bill or its implementation, as might happen if one were using the IAC or another outside body as a monitoring committee. I have based my formula on the provisions of the treaty itself, which I would have thought the Government would not complain about because they, after all, have agreed to these committees being in the treaty in the first place.
On the one hand, a monitoring committee made up of eight independent experts is already in existence. I cannot claim to know who they all are but I know that one of them, Harish Salve KC, of Blackstone Chambers, brings to the task many years of experience in public international law and human rights. From what one can see from the description of his career on the website, one can have a good deal of confidence that he knows what he is doing when he is asked to monitor what is going on there. The key function of the committee under Article 15 is to advise on all steps that it considers appropriate to ensure that the provisions of the treaty are adhered to in practice. That is precisely the point on which we require reassurance. The other committee is a joint committee whose role under Article 16 is to
“monitor and review the application and implementation”
of the treaty. Then there are the objectives of the treaty, which of course are set out in the treaty itself, listed in Article 2, together with the mechanisms needed to bring it about.
My amendment brings together these three points: the monitoring committee, the joint committee, and the objectives of the treaty itself. It proposes that the treaty
“cannot be considered to have been fully implemented … until the Secretary of State has obtained a declaration by the Joint Committee … after consultation with the Monitoring Committee … that the Objectives … have been secured by the creation of”
these mechanisms. It goes on to say that the Secretary of State
“must consult the Monitoring Committee every three months … and must make a statement to Parliament”
if the advice of the monitoring committee is that this is not happening. This provides a sufficiently reliable means of ensuring that what I have set out in my Amendment 6 has been and will continue to be achieved. It is relatively simple and I cannot see that it delays anything, because it uses the mechanisms in the treaty itself, which we are being asked to accept as reliable for the purpose for which it is designed.
As I said at the beginning, my four amendments are all part of a package, and they are designed to correct the wholly inaccurate and, frankly, sloppy use of “is”, which should never have been in the clause in the first place if it is going to be a declaration of what our judgment is. I suggest that my words are far better suited to the judgment that the House is being asked to make and to put it into practice. I beg to move.