That this House takes note of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda for the Provision of an Asylum Partnership Agreement to Strengthen Shared International Commitments on the Protection of Refugees and Migrants.
Relevant document: 4th Report from the International Agreements Committee (special attention drawn to the agreement)
My Lords, there are two Motions in my name on the Order Paper, and I shall speak to both. The first ask the House to take note of the fourth report of the International Agreements Committee, which I have the honour to chair. The report addresses the UK-Rwanda asylum partnership agreement, known as the Rwanda treaty. The second Motion invites the House to agree with the committee’s unanimous conclusion that the Government should not ratify the treaty
“until the protections it provides have been fully implemented, since Parliament is being asked to make a judgement, based on the Agreement, about whether Rwanda is safe”.
Both Motions are tabled on behalf of the committee and not on behalf of the Labour Party.
The second Motion engages Section 20 of the Constitutional Reform and Governance Act 2010. I will explain the significance of this and comment briefly on the statutory framework under which the committee’s report was produced before turning to the substance of the issue. The mandate of the International Agreements Committee is to scrutinise treaties laid before Parliament which the Government propose to ratify. Section 20 of the Constitutional Reform and Governance Act, or CRaG, gives Parliament 21 sitting days to review a treaty. The main essentials of the process for parliamentary scrutiny of treaties have not changed for 100 years, since 1924, when Foreign Office Minister Sir Arthur Ponsonby made a commitment that the Government would lay all treaties before Parliament for 21 days before ratification. CRaG codified this practice in legislation but did not substantially alter it.
The International Agreements Committee has previously reported on a range of deficiencies in the CRaG scrutiny process. This is not the occasion to debate those in detail, but the committee’s current report does highlight that consideration of the Rwanda treaty brings into sharp focus the inadequacy of a 21-day scrutiny period for reviewing treaties of significant public interest and political importance. Our task in this case was made more difficult by government delays in publishing key information and providing responses to our inquiries.
Our consideration of the Rwanda treaty also highlights the limits on Parliament’s role in the scrutiny of treaties, which is weaker than in many other countries. If either or both Houses wish to express concerns about a treaty, Section 20 of CRaG provides that they must pass a resolution before the end of the 21-day period that the treaty should not be ratified. If the House of Commons passes a Section 20 Motion, the Government must lay a Statement and wait a further 21 days before they can proceed. That process can be repeated, which means that, in theory, ratification could be indefinitely delayed, so long as the Commons continues its objections. The Government, however, can override a Section 20 Motion passed by this House.
My Lords, the noble and learned Lord, Lord Goldsmith, presided with very great skill over this report on an extremely difficult set of issues, as he has described in the last few minutes.
Before I make an additional comment, I will observe that we are concerned with a small but dangerous and damaging part of a much wider picture. When I say “small”, I have in mind one estimate that suggests that there are about 60 million people in Africa, the Middle East and central Asia who, even now in the present situation, wake up each morning considering migrating, mostly heading for Europe. Indeed, there between 5 million and 6 million migrants already in Turkey—that is just a start.
We have to lay beside that the fact that 90% of the world’s territorial surface has no inhabitants at all. So what I am saying is that there is something badly out of balance with this entire scene and the adjustment of handling migration and refugee problems in the totally changed conditions of the 21st century. Nevertheless, the urgent problem remains for us of how to halt the appalling trade and tragedy of illegal immigrants coming by extremely dangerous means into the United Kingdom.
As the noble and learned Lord, Lord Goldsmith, made clear, the report is not about the safety of Rwanda Bill, which comes before the House next week—and should, in my view, be agreed and passed as quickly as possible. But the report does include useful advice on signing the subsequent treaty, which is worth taking note of—I hope that the Government will take note—and which will assist in ensuring that the whole process works effectively and serves its various purposes.
Also, I am glad that the report is free of the rather patronising tone one hears in some comments about Rwanda and its judiciary and legal systems, as though they could not possibly have high enough standards. I can understand the Rwandan Government’s exasperation, and that of senior legal figures there, at the implication that their system somehow has to be reinforced, made over and renewed to bring it up to scratch so that it can be called “safe”. Despite a very dark past, Africa has changed radically—particularly Rwanda, which has changed most rapidly of all in the last few decades. We need to keep that in mind when making our judgments. People also forget that Rwanda is not only evolving into a modern state but is a signed-up member of the Commonwealth and its charter, which insists on full respect for the rule of law and human rights. So I hope that the House will find the first Motion useful.
My Lords, it is an enormous pleasure to follow the two noble Lords, and in particular my noble and learned friend. I congratulate not just him on his remarks but the whole International Agreements Committee, a cross-party committee, on, among other things, the succinctness and clarity of this report, which I hope we will all take as a model for the vital work that the committees of your Lordships’ House do. That clarity and succinctness are so important to expressing the message, and I think we have heard it delivered with enormous precision. I shall try, therefore, not to be repetitive. There are many noble Lords to follow in this debate.
I have a few additional comments, if I may, on the treaty. It is light on numbers. The actual number of asylum seekers who would be sent—transported, even—to Rwanda under this scheme is not there. These numbers may exist in some private communications between the two states, but they are not in the treaty. What is in the treaty is the suggestion that it would be for the Republic of Rwanda to make a case-by-case judgment on accepting each individual asylum seeker. That is very interesting because, among other things, it would mean that the Republic of Rwanda would get to do a case-by-case assessment that it is now impossible to do through any Minister, official or court here in the UK. I find that strange.
I will also comment on the question of whoever comes back under this treaty: whoever comes back to the United Kingdom from Rwanda. There is a lack of clarity here, but I understand that Ministers in the other place commented that those who commit crime having been sent to Rwanda would be sent back to the United Kingdom—which again smacks of no little irony, because it would mean that criminals could come back to the United Kingdom but not recognised convention refugees under the scheme. That is a slightly odd view of deterrence, in my view, which we repeatedly hear is the Government’s ambition here. What kind of deterrence is that? Some might even suggest that there is the potential perverse incentive to commit crime if you want to end up in the United Kingdom.
My Lords, I am happy to follow the noble Baroness. I am grateful for the committee’s work, especially since the Commons is not debating the treaty. These Benches agree with the conclusions of the unanimous cross-party report and will support the Motions. I am also grateful to the Minister for his comprehensive reply and fulsome response to a letter that I wrote to the Foreign Secretary in December.
Some outside the House may say that, over the coming weeks, we will be approaching our work in a constitutionally unusual way. The Government are insistent that we are constituted in the way that we are with the powers that we possess, but that we should not use them—in some form of appeal to the law to make us good at scrutiny, but not yet. We will do our job and we will scrutinise properly, and on the treaty too.
The treaty builds on the MoU, in certain areas with clarity, I accept, but in most other areas with assertion and optimism. Together with the Bill, the Government respond to the Supreme Court ruling not by addressing its substantive points but by setting them aside and presenting Parliament with alternative facts.
These Benches oppose the treaty and the Bill, which place the United Kingdom at material risk of breaching our international law commitments and undermining the rule of law by ousting the jurisdiction of the courts. They will lead to further substantial costs to the taxpayer, fail to provide safe and legal routes for refugees, and fail to include measures to tackle people-smuggling gangs.
The House will recall that, on 13 April 2022, at the start of all this, the Home Office Permanent Secretary said that there was insufficient evidence to back up the Government’s assertion that the agreement with Rwanda would provide value for money, so he sought and received a ministerial direction. Some £120 million had been spent. It is utterly unacceptable that, after repeated questions on funding from me and others in this Chamber, in 2022 and 2023, only in December last year was it disclosed that a further £120 million was committed at that time—secretly by Ministers, with no disclosure.
My Lords, it is a privilege to take part in this debate and I am very grateful to the Government for allowing us to have it within the CRaG period. It was also a privilege to be a member of the International Agreements Committee. Thanks to our excellent chairmanship and the wonderful work done by our staff, we were able to complete this report within the CRaG period despite the Christmas Recess.
I used to work in international relations and was until recently a trustee of the Refugee Council, so I cannot debate this treaty without recording my profound objection to an arrangement that is incompatible with our responsibilities under the 1951 refugee convention, its 1967 protocol and, of course, the European Convention on Human Rights. But I acknowledge that that is more for next week’s debate than today’s. My concern is primarily with the policy and the Bill that we will be looking at next week, not the treaty, which is intended to salvage the policy from its Supreme Court shipwreck.
On the policy, I will make just one point. I simply remind the House yet again that there is no precedent for the way it dishonours our convention commitments. The Government keep referring to what the Australians did in 2012, but that was different: the asylum seekers they diverted to Papua New Guinea were not handed over to the Papua New Guinea authorities. Australian officials went and heard in Papua New Guinea their claims for admission to Australia. Like the arrangement the Italians have been considering with Albania, this was offshoring; what we are talking about is offloading. Those we offload to Rwanda are never to get a hearing for their claim to asylum in this country. We intend to wash our hands of them and declare them inadmissible: Rwanda’s responsibility, not ours. This is unprecedented and unconscionable.
On the treaty itself, I have only three points to make. First, as a member of the International Agreements Committee, I of course support the report we unanimously agreed. It follows the scope and logic of the Supreme Court’s reasoning. As the noble and learned Lord, Lord Goldsmith, explained, in considering whether Rwanda would be safe for those sent there, it focuses on the court’s assessment of the risk of refoulement—enforced return to the country they first fled. I would have wished to draw the canvas a little broader, looking beyond the procedural reforms that Rwanda has apparently agreed to make and trying to judge how safe for refugees wider Rwandan society actually is. Without looking back to the genocide 30 years ago, when more than half a million in Rwanda lost their lives, I might have noted, as the Supreme Court did, that only three years ago our Government were criticising the Rwanda Government in the UN Human Rights Council for
My Lords, this treaty with the Republic of Rwanda underlies the safety of Rwanda Bill. If were not ratified by Parliament, the Bill would lose its foundation stone; but today, as I hope Members understand, this House cannot by its own resolution block the ratification process. Only a resolution passed in the other place can do that.
I have read with care the committee’s report. It sends an important message to the Government, but—and this is important—whatever it says about the arrangements in Rwanda going forward and its anxieties about whether they will be effective, it does not complain about the terms of the treaty. I stress that. The treaty, as this careful report notes, puts into legally binding form the arrangements previously set out in the 2022 memorandum of understanding, with enhancements, which, the report notes, if effective—I emphasise the word “effective”—will provide important safeguards for persons transferred to Rwanda. That is what the report says. Of course, we shall know whether that is so only if and when the Bill becomes law and the process begins.
To adopt what my noble friend Lord Howell has said, this report provides a useful agenda for the Government—and, indeed, for all of us when we debate the Bill. The report acknowledges that the treaty will improve the protections previously set out in that earlier memorandum. It identifies practical steps that need to be taken before the protections could be deemed operational, and such that they might make a difference to the assessment reached by the Supreme Court.
Like my noble friend Lord Howell, I hope that the Government will read this report with care and not just pay lip service to it. The report argues that evidence is also needed that the arrangements have been effective in practice. One can see that that evidence will be available only if the process is embarked upon and after it has been in practice; that is, if it has taken place.
My Lords, the creation of our International Agreements Committee is a rare constitutional highlight of the past five years. I congratulate it on the scrutiny that it provides in the context of a statutory framework that leaves much to be desired and on the decision that it took in May of last year to focus particularly on treaties which are novel or have significant implications for politics or public policy, human rights or expenditure. The UK-Rwanda treaty might be thought to qualify on all those grounds. We can be grateful for the committee’s thorough and perceptive report, and for the opportunity to debate it at a stage when the debate can still be useful.
I also congratulate the British and Rwandan Governments on putting their MoU into the form of a treaty, as the committee recommended, and on starting to address some of the defects identified by the Supreme Court. However, and without doubting the good faith of either Government, it appears that as the Supreme Court anticipated, those defects will not be fully addressed in the short term. The UNHCR, from its position on the ground, spoke last week of the need for
“sustained, long term efforts, the results of which may only be assessed over time”.
That chimes with my experience when reporting, some years ago, on the analogous policy of deportation with assurances. The object of the policy was to enable non-British terrorist suspects to be deported to their countries of origin, even when, without specific guarantees, those countries could not be considered safe. Guarantees were negotiated by way of treaty, MoU or exchange of letters with six countries in the Middle East and north Africa. I travelled to Jordan and Algeria in 2014 to see how they were being implemented on the ground. My conclusion was that, contrary to the views of some lawyers and UN rapporteurs, but consistent with the view of the European Court of Human Rights, such arrangements can, with the right partner, be delivered, at least in the national security context, both effectively and compatibly with international law. Indeed, the mutual legal assistance treaty with Jordan, negotiated by James Brokenshire and Theresa May, was successful in meeting the conditions laid down by the courts for securing the departure of the dangerous extremist Abu Qatada for trial in Jordan. However, to negotiate and, in particular, to implement such an arrangement, particularly a broad-ranging one, requires what my co-author Professor Clive Walker and I described as “the most laborious care”. In the oral evidence that I was invited to give to the committee, I detailed some of the practical obstacles to independent monitoring, even in Jordan where there was a strong political will to make the arrangement work.
My Lords, I welcome the opportunity to speak today and thank the International Agreements Committee for its excellent report. I will just say that as Lord Bishops we take no position on this Bench based on tribal loyalty and we are not whipped. Instead, because of what our Christian faith teaches us about care for the stranger, we have spoken with one voice on these Benches.
I am focusing on the issues before us today; friends on this Bench will speak to wider points in the coming weeks, as the Bill is discussed. As has been said, this treaty is the central plank of the Government’s case that Rwanda is a safe country for asylum seekers. As others have commented, it is remarkable for the Executive to request that parliamentarians declare another nation state safe, and safe ad infinitum, on the basis that one drafted international agreement answers all the concerns of the Supreme Court. If Parliament proceeds to, in effect, substitute its judgment for that of the Supreme Court, where does that leave the constitutional principle of the separation of functions and what precedent is this setting?
The question is not whether both parties are willing and capable of delivering on the treaty, but whether the provisions will become operational in reality. Both the committee and the High Court question Rwanda’s ability to fulfil its commitments in the short term in light of the evidential deficiencies of the present asylum system in Rwanda, as has been mentioned. Furthermore, the UNHCR has not observed any systemic changes that will address the court’s concern. Future assurances, however sincerely offered, are not on their own a strong enough basis to legislate a country as safe.
The role of government is indeed to create law, but it is not to create injustices. Therefore, if the Government are so confident that the treaty obligations placed on Rwanda will ensure that the Rwandan partnership is lawful, why not make this argument again before the judiciary? As the Government are not pursuing this course of action, the International Agreements Committee has recommended that the treaty not be ratified until Parliament is satisfied that the protection it provides has been fully implemented.
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This is the first occasion since CRaG came into force in 2010 that either House has considered a Motion under Section 20 of CRaG, which perhaps illustrates the inadequacies of the current framework for treaty scrutiny in general and the specific concerns that the committee has about the way the Government have proceeded in relation to the Rwanda treaty—I will expand on this as I address the substance of the report.
The treaty was negotiated between the UK Government and the Government of Rwanda as a response to the judgment of the Supreme Court on 15 November 2023 that the Government’s policy of sending asylum seekers to Rwanda was unlawful. The Supreme Court found, relying heavily on evidence from the United Nations High Commissioner for Refugees, that there were deficiencies in Rwanda’s asylum system and evidence of refugees being sent on to unsafe countries—a practice known as refoulement—in breach of Rwanda’s international obligations. The Supreme Court did not doubt the good faith of the Government of Rwanda but found that the practical application of asylum and refugee law was inadequate. On this basis, the Supreme Court concluded that there was a risk of refoulement in relation to any asylum seeker sent by the UK to Rwanda.
The Rwanda treaty sits alongside the Safety of Rwanda (Asylum and Immigration) Bill, which will have its Second Reading in this House on 29 January. This debate is not about the Bill, but aspects of the Bill are relevant to our consideration of the treaty. In particular, Clause 2 of the Bill provides that:
“Every decision-maker must conclusively treat the Republic of Rwanda as a safe country”.
Clause 2 is an ouster clause and has the effect that the Bill’s declaration of the safety of Rwanda could not be subject to appeal or judicial review in any legal proceedings.
The Government’s case is that the new arrangements they have negotiated with Rwanda, which are now set out in a legally binding treaty that replaces the previous memorandum of understanding, change the factual position considered by the Supreme Court and thus allow Parliament to conclude definitively that Rwanda is safe. The Home Secretary’s foreword to the policy statement accompanying the Bill and the treaty published on 12 December referred to the treaties as containing,
“significant new protections in response to the Supreme Court’s conclusions”.
And went on to say:
“This work will enable Parliament to conclude that the Supreme Court’s judgment has been addressed and that Rwanda is safe for relocations under the Migration and Economic Development Partnership”.
The committee therefore considered that its job was to consider whether the protections in the treaty do indeed enable Parliament to conclude now that the Supreme Court judgment has been addressed and that Rwanda is, in fact, safe. The committee agreed that, on paper, the enhancement provided by the treaty undoubtedly improves the arrangements under the memorandum of understanding. First, the treaty includes an explicit obligation that no person sent to Rwanda will be removed to any other country, except back to the United Kingdom at its request. Secondly, a new system to process asylum claims will be established, with safeguards to ensure compliance with refugee law, including new institutional structures with international judges. Thirdly, the role of the independent monitoring committee is enhanced, with additional staff to support its functions. Fourthly, a binding mechanism to settle disputes between the parties is established. These are all important changes, and the committee acknowledges the efforts of both Governments to address the issues raised by the Supreme Court.
However, it is plain from the Government’s evidence to our inquiry, and from the background information in the Home Office policy statement, that much work needs to be done before the protections that the treaty envisages could be fully in effect. This includes not just the adoption of new laws, systems and processes but the recruitment and training of personnel.
All these legal and practical steps are set out in our report, but I will highlight just a few of the most important ones. The Home Office told our inquiry that it is still discussing with the Government of Rwanda key aspects of the new asylum processing system. The new Rwandan asylum law, which will underpin this important part of the treaty, will be adopted in the “coming months”, according to the Home Office policy statement. Additionally, the Home Office told us that the process for selecting the co-presidents of the appeal body is still being discussed between the UK and Rwanda. Only after that process has been agreed can the co-presidents be appointed. They, in turn, will need to identify and select the other international and Rwandan judges. The Home Office was unable to tell us how many international judges there would be in total, or how they would be allocated to individual appeals. It is clear that significantly more work is needed on this important aspect of the treaty.
The obligation not to remove asylum seekers to any other country, except if requested by the UK, is central to the Government’s contention that the treaty meets the concerns of the Supreme Court. The treaty provides an added assurance—although it could also be taken as a lack of confidence in compliance by Rwanda—in stating that the parties will co-operate to “agree an effective system” to ensure that refoulement does not take place. We asked the Home Office for further information about this but did not receive a clear answer on when this system would be in place or whether the measures would be published.
The Government also place heavy emphasis on enhanced monitoring arrangements, but, from information we received from the Home Office, it appears that the monitoring committee has yet to recruit its support team. This is important because the noble Lord, Lord Anderson of Ipswich, whom I see in his place, told us, based on his experience of reviewing similar monitoring processes in his previous role as Independent Reviewer of Terrorism Legislation, how resource-intensive effective monitoring is and how important it is to have people on the ground.
Another important new aspect of the monitoring arrangements provided for by the treaty is a process to allow asylum seekers or their representatives to submit confidential complaints, but this system has not yet been set up by the monitoring committee. It is also unclear whether the arrangements are to be subject to public scrutiny. In total, our report identifies at least 10 sets of issues in respect of which, on the basis of the Government’s evidence, significant additional legal and practical steps are needed in order to implement the protections the treaty is designed to provide.
The UNHCR published its assessment of the treaty last week. It also acknowledged that:
“Detailed, legally binding commitments set out in the treaty would, if enacted and fully implemented in practice, address some of the key deficiencies in the Rwandan asylum system identified by the Supreme Court”.
However, the UNHCR, in common with many witnesses to our inquiry, stressed that the changes in the treaty require sustained long-term efforts at capacity building which can only be assessed over time. The committee agreed with that assessment, which is why we concluded that the treaty is unlikely to change the position in Rwanda in the short to medium term.
On 19 December, when the Home Secretary came and gave evidence to us, he told us that he did not intend to “operationalise” the Rwanda relocation scheme until the Government are
“confident that the measures underpinning the treaty have been put in place, otherwise the treaty is not credible”.
The difficulty is that the Government have already presented a Bill to Parliament asking it to make a judgment that Rwanda is safe now. Yet, on the Home Secretary’s own evidence, it cannot be so, because the measures are not in place and have not been shown to be effective. The treaty is held up by the Government as the justification for the measures in the Bill, yet the treaty cannot at present provide a basis for Parliament to judge that Rwanda is safe while so many aspects of the treaty remain unimplemented and untested.
When the United Kingdom ratifies a treaty, the long-standing practice of government is to ensure that all necessary implementing measures are in place before the Government proceed to ratification. It is true that some of the required steps to implement the treaty need to be taken in Rwanda. However, it is clear from the information supplied to our inquiry that the Government are fully engaged with the Government of Rwanda in developing those implementing measures. The Government should therefore abide by their usual practice of satisfying Parliament that all measures are in place before ratifying. That is why the committee has recommended that ratification should not take place until certain conditions are met.
We consider that the Government should return to Parliament when they believe that the treaty is ready for implementation. They should then give Parliament a further opportunity for scrutiny of the treaty arrangements. Only at that point will Parliament be able to assess properly whether Rwanda is safe. The principle of the separation of powers provides a further reason for pausing. It would be constitutionally inappropriate for Parliament to seek through statute to overturn findings of fact by the Supreme Court; I underline findings of fact because that is what the Supreme Court did. It is therefore important for Parliament to be clear that the facts have indeed changed before making its assessment.
If the Government proceed to ratify the treaty immediately after the end of the CRaG scrutiny period, it could enter into force without being fully implemented, because the Government lose control of the timing of entering into force once it has been ratified. Yet, once the Bill is in force, the judgment that Rwanda is safe is a fait accompli, regardless of whether the treaty has been implemented or not.
Before I conclude, I thank all the witness who took the time and trouble to contribute evidence to our inquiry over Christmas and the new year. I thank all my colleagues on the International Agreements Committee, some of whom I am very happy to see in the Chamber, for their co-operation and support. I thank our officials and advisers for dealing with a substantial amount of material submitted in response to our call for evidence, including a very large amount of material submitted at a very late stage by the Home Office. Finally, I thank the Government for offering us such a prominent debate spot within the CRaG period.
The Section 20 Motion I have tabled in unusual—in fact, unprecedented. We are not saying that the treaty should never be ratified, but we are saying that Parliament should have the opportunity to scrutinise the treaty and its implementing measures in full before it makes a judgment about whether Rwanda is safe.
The Government propose in their Bill that the courts will be precluded from considering whether the Supreme Court’s concerns have been addressed, so it is now for Parliament alone to make that assessment. It is the unanimous view of the International Agreements Committee that we need first to see the protections fully implemented and working. For that reason, the committee concluded in its report that the treaty should not be ratified until the protections that it provides have been fully implemented. I beg to move.
The second Motion also rightly urges that the normal CRaG—Constitutional Reform and Governance Act—processes, for which the parliamentary scrutiny period appears to expire next week on 31 January, should be properly observed by Parliament. Surely that would be wise; I hope that it is not in question. That raises much broader questions, which the noble and learned Lord touched on, about the severe defects in our entire committee system for holding the Executive to account, despite all the excellent and noble work that the clerks undertake. Every other Parliament I know that seeks to run a democracy—I have visited very many, as have many other noble Lords—has a far stronger committee scrutiny power system for treaties and indeed for everything else than we have here. We must face the fact that we are hopelessly behind in the digital age in this area of scrutiny—but I accept that that is a debate for another day.
The last phrase in the second Motion about Parliament having to make a judgment—to which the noble and learned Lord also referred—about whether Rwanda and its legal system are “safe” is the bit that worries me most, and which I realise runs through the whole debate. I have to ask colleagues: what does “safe” mean? It is an entirely subjective concept and always will be. Is our own judicial system safe? I do not know. I am not sure that all our postmasters would agree about the safety of our judicial system now. No amount of elaborate monitoring, training, appeals body advisers and all the rest is going to convince those who do not want to be convinced that Rwanda is safe.
I hope that the first Take Note Motion put forward so eloquently by the noble and learned Lord will be agreed completely and that the second one is seen simply as a useful agenda, since I see the debate about safety never being conclusive except through practice and experience. We will have to wait, put it into place and see how it goes.
My final hope—probably unattainable—is that both major political parties will support this project with the basic unity and balance which is what the public long for from their politicians and media, in combination with an internationally collective all-out attack on the revolting smuggler parasites, thereby saving the lives of many sad and frightened people. This in turn would decisively assist thousands of other genuine asylum seekers and refugees who are fleeing for their lives from terror and oppression and who have arrived here by legal means in receiving the swift and sympathetic treatment that is in line with our nation’s traditional instincts. It will also give us a breathing space to work out together and with all our neighbours and allies how on earth best to cope with the vast coming wave of migration, which no national Government alone can begin to handle—but perhaps that is too much to hope for right now.
I am of course conscious of the Prime Minister’s recent remarks in the special press conference that he held last week for the benefit of your Lordships. We are always available for anyone who wants to come and have a chat but, if they want to do it by press conference, so much the better. Much was said about “the will of the people”, a phrase that has gained so much currency in the polarised and difficult recent years in our country. A lot is said about the will of the people as if it is something that a charismatic—or less charismatic—leader has a direct telephone line to. Perhaps it is not even a telephone any more; perhaps it is telepathic. I suggest that, in a constitutional democracy, as we have heard outlined, instead of there being this sort of telepathic connection between any individual leader and the will of the people, it is Parliament that reflects the will of the people to the best of its ability and represents people in this country while championing the rule of law.
Of course, as we have heard from my noble and learned friend, in the safety of Rwanda Bill, it is suggested that Parliament is now of the view that Rwanda is safe. So everything hinges on Parliament, with the courts having been ousted. It seems to me that, if Parliament is to step up to that awesome responsibility—it is even more awesome than usual—with the courts having been ousted from their usual fact-finding role in relation to the anxious scrutiny of individual refugees’ cases and fundamental rights, it had better be pretty sure that Rwanda is safe. The noble Lord, Lord Howell, questioned the concept of safety—that is, what is and what is not a safe country—but I remind him that even the Government have used this formulation because Clause 1 clearly states that the Bill
“gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country”.
Difficult or otherwise, that concept is a recognised concept of international law.
This is the case not just in relation to the refugee convention. I remind noble Lords that many of us and many international jurists now believe that non-refoulement is so vital to the international rules-based order that it has become a principle of customary international law, binding even countries that do not recognise the convention. That is how important these concepts of safety and non-refoulement are. Like it or not, whether or not it is difficult to debate, safety is in the Bill and it is for Parliament to be very sure before deeming these new facts.
That brings me to another part of the Prime Minister’s rhetoric. We had the sabre-rattling about the unelected House of Lords having to do the right thing but another part of his address was less strident, if I can put it like that. He said that
“we have addressed the Supreme Court’s concerns”.
That was the softer side—the good cop next to the bad cop. If Parliament is to address the Supreme Court’s concerns, my noble and learned friend and his committee must be listened to because, with all due respect to our Commonwealth partner in the Republic of Rwanda, everything that they say is triggered not by what we say or deem with the flick of a pen but by the legitimate and totally noble aspiration that Rwanda will become safer—and even Britain too; perhaps we will all become safer. It is that greater safety in future that our own United Kingdom Supreme Court—not a foreign court, let alone an international one—called for and which my noble and learned friend and his committee are suggesting we should test. His comments on the contradiction between current safety and the Home Office’s evidence to his committee were perhaps the most devastating part of his argument.
Before we hear all the lectures about unelected second Houses, et cetera, I think that your Lordships have a part to play on matters of the rule of law—especially in a country with an unwritten constitution and a Human Rights Act or modern Bill of Rights that is not entrenched and where, even the highest court in the land, our Supreme Court, does not have the strike-down powers that other democracies reserve for their constitutional or highest courts. In such a system, noble Lords are entitled to be a little more muscular than usual on matters such as this that were not in anyone’s manifesto; that risk being contrary to the domestic rule of law, including by ousting the jurisdiction of the courts or changing the reality that was found by the Supreme Court on 15 November; that risk breaching international law, as found not by a foreign or even international court but by the highest court in our land; and that risk breaching human rights that were baked in to the hard-won and precious Good Friday agreement—all this in what may be the last days of the Government, when the temptations to blow dog whistles and to be destructive to consensus and the rule of law are all too great.
For those reasons, I hope that your Lordships approve my noble and learned friend’s Motions.
When I visited the reception centre in Kigali in the summer of 2022, I was told that this was an annualised rolling contract, renewable in March each year. So can the Minister confirm that there will be another £120 million committed for next year, over and above the £50 million the Home Office has indicated for the coming year—and will this also be kept secret? Is this being scored against official development assistance? Why is it not being reported on a project basis in a transparent way?
Incredibly, the Home Office now says that part of the £290 million is a credit line to the Rwanda Government—not for the purpose of the treaty, but a credit line. For what, precisely, and to whom? Who are the beneficiaries?
I can inform the House today that, on top of the £290 million, the Government quietly issued a tender last March for a £78 million contract for:
“Collection, transportation, and escorting individuals overseas through an MEDP”.
Given that the only partnership the UK is seeking to agree is with Rwanda, this is now £368 million willing to be committed. Can the Minister be clear what the projection costs are for 2025 and 2026, so that we have transparency.
These Benches want an immigration system that is efficient and fair, allows for regulated movement of people for our economy and takes into consideration need and capacity. We want a system that is not gamed, either from those within the UK or by organised crime abroad, but is one where we reject the pernicious and deliberate conflation of economic migration and those seeking asylum from political and personal persecution. That conflation meant that the previous Home Secretary and the Minister in this House repeated the untruth that
“there are 100 million people who could qualify for our protection, and they are coming here”.
Well, there are not, and they are not—and the Lords Minister stopped repeating this trope only after I cited the condemnation of the UK Statistics Authority, which formally asked Ministers not to repeat it.
The Home Office is a serial offender. Last week, the head of the UK Statistics Authority wrote to my colleague Alistair Carmichael MP about the Prime Minister’s wholly misleading statement on 2 January in which he said he had got rid of the backlog of asylum decisions by the end of 2023. It was misleading because the Home Office ignored 5,000 so-called “hard cases”, as it defines them. In a withering reply, Sir Robert Chote said that it was
“not surprising that the Government’s claim has been greeted with scepticism and that some people may feel misled”.
Furthermore, it should be noted the Home Office went full Kafka last week in sending us supporting evidence for its Bill. That evidence included this treaty, which it negotiated itself. And the justification for the necessity of this treaty, the Government say, is their own Bill.
Part of the pack is an updated country note for Rwanda, which updates one published just last spring. The one with barely dry ink was slightly inconvenient as it said a little too much about Rwanda’s human rights record and problems in processing asylum. Now, the language on human rights has been eased, massaged and sanitised. I emailed the independent inspectorate tasked with reviewing the country note and was told it had not yet concluded a review of the previous one to verify it. The Government, so eager to change the conclusions, did not even wait for the evidence from their own independent inspection body. All these aspects get to the central part of the issue and are why we must verify the treaty’s assertions before they are brought into force.
The Supreme Court’s ruling was clear. In paragraph 104, it says:
“The matters which we have discussed are evidence of a culture within Rwanda of, at best, inadequate understanding of Rwanda’s obligations under the Refugee Convention”.
As the noble and learned Lord, Lord Goldsmith, said, the UNHCR position on Rwanda’s insufficient processes, the UK MoU and now the treaty and Bill are also clear—and it is responsible for interpreting the convention. But the Government have sought to undermine the UNHCR; on 24 May last year, the Minister, the noble Lord, Lord Murray, who is in his place, told the House:
“The UNHCR is clearly a UN body; it is not charged with the interpretation of the refugee convention”.—[Official Report, 24/5/23; col. 968.]
Paragraph 65 of the Supreme Court ruling says:
“The first relevant factor is the status and role of UNHCR. It is entrusted by the United Nations General Assembly with supervision of the interpretation and application of the Refugee Convention”.
There can be no stronger rebuttal of the Government than that.
The Supreme Court also stated:
“It is also apparent from the evidence that significant changes need to be made to Rwanda’s asylum procedures, as they operate in practice, before there can be confidence that it will deal with asylum seekers sent to it by the United Kingdom in accordance with the principle of non-refoulement. The necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring”.
I asked the Government, with regard to their treaty commitment on refoulement, when the proposed mechanisms would be ready. The Minister replied to me, and in his response said:
“This mechanism is in development and will be in place once the partnership is operational”.
“In development”, and a process that may be extended with unlimited extensions. Does
“will be in place once … operational”
mean that they will need to be in place before it becomes operational, or that they will be put in place after the treaty is operational? It is unclear, and the Minister needs to be clear.
Equally opaque is the appeals process, which is fundamental to the court’s ruling. This is covered in Annexe B in the treaty. Given that these need to be in place in advance of the agreement coming into force, when will they be operational? I asked for a planned date. The reply with regard to the judges appointed was:
“The precise number of judges (and precise mix of nationalities) is being considered by the UK and Rwandan Governments … The process for selecting the co-presidents is being developed by the UK and Rwandan Governments and we will set this out in due course”.
We see “in due course” again, and “is being considered”, and “is being developed”. I asked the Government about the training of the judges, which the treaty says will have to be in place, and when that would be complete. Again, it is “being discussed”.
Article 14 also commits to Rwandan security service officers, which they term “liaison officers”, being part of the UK asylum process,
“including the screening of asylum seekers”.
This is quite extraordinary, given that the UK has provided asylum to six Rwandans after the Government had stated that Rwanda itself was a safe country. And there is no treaty restriction on the limits of the access to the operational processes of the Rwandan security services in screening UK asylum applications. Given that I was monitored and spied on after meeting an opposition leader in Kigali, I say to the Minister with great seriousness that this section needs very careful consideration.
Finally, Article 19 covers the resettling of asylum seekers currently in Rwanda to the UK, which the noble Baroness referenced. The Minister replied to me, saying that the UK was now committed to receiving those asylum seekers from Rwanda who are the most vulnerable. If Rwanda cannot accommodate vulnerable asylum seekers in Rwanda, why are the Government proposing to send vulnerable asylum seekers to Rwanda? I also asked how many there were. The Government said:
“As the partnership is not yet operational, we have no figure or specific information to provide to you as to the number of non-Rwandan refugees who may be resettled in the UK or their circumstances. We expect this number to be very small”.
The Minister’s response to me sought to be reassuring. He said:
“This is not a 1:1 agreement”.
I think most people will be reassured by that—but if it is not one for one, what is the figure and when will we know? Is it capped?
The Government cannot legislate new facts that are more politically palatable; they cannot mislead by deliberately misstating data; they cannot release new reports that sanitise ones that themselves have just been released; they cannot expect us to ratify a treaty when its essential elements remain unclear, with no details of timeframe or even of its commencement. They cannot do these things and expect us to turn away or to say, as some might, “Something must be done; this is something, so we must do this”—or, as the Foreign Secretary told me last week, on the lack of any of the promised new safe and legal routes, we just have to do it because we have to think out of the box. The Supreme Court was pretty clear in paragraph 104 of the ruling that when it comes to safety, thinking in the legal box is a practical necessity. The treaty does not in itself create a new reality, and therefore there are too many outstanding questions for us to assent to its ratification now.
“extrajudicial killings, deaths in custody, enforced disappearances and torture”.
I might have asked whether it is Rwanda that has changed or whether we have just found it convenient to change our tune for domestic political reasons. I might have picked up the State Department’s damning country report two years ago on Rwanda’s human rights record. I would certainly have wished to note Rwanda’s 100% rejection rate for asylum claims there by applicants from Afghanistan or Syria, according to UNHCR, and contrasted that with our 99% acceptance rate, according to the Home Office, for people from those two tragic countries who manage to lodge their claims here. I might have asked what it says about the safety of Rwanda that we are still accepting claims from Rwandan citizens for asylum in this country, as the noble Lord, Lord Purvis, pointed out. Allowing them refugee status here means that we have determined through our processes that they have a real and well-founded fear of persecution back home.
All these issues are relevant, although they are not in the IAC report, but I in no way resile from the report. We agreed it unanimously, and we all acknowledged the efforts the two Governments have made to address the issues raised by the Supreme Court. But—this is my second point—the committee was clear that resolving these issues will take time to assess whether the 10 steps that the Rwanda Government have agreed to take, listed in paragraph 45 of the report, have been taken, are working and are proving sufficient to set at rest the concerns raised by the Supreme Court. None of the 10 steps has yet been taken. There is no new Rwanda asylum law, first instance body or appeals court, no judges have been appointed and no training has been done. It will all take time.
I believe that if the new arrangements set out in the treaty and its annexes are implemented and bed down, the situation for asylum seekers in Rwanda will genuinely improve, but clearly the Government themselves are not confident that these improvements will be sufficient to set Supreme Court minds at rest. If they thought the treaty would crack the problem, why would they now be legislating to prohibit our domestic courts independently assessing whether it has cracked the problem? Why a belt, if the braces are not broken?
Thirdly, Article 10(3) of the treaty states that no one we have transported to Rwanda can be sent on to a third country, whether or not they have asked for asylum in Rwanda and whether or not asylum in Rwanda has been granted. The only place they can be sent to is back here, if we decide we want them back. On the face of it, that is a reassuring fail-safe if the new procedures prove inadequate to prevent removal to a third country. Actually, it is not—because, as the report points out at paragraph 37, Article 10(3) goes on to lay an obligation on us and Rwanda
“to agree an effective system”
to ensure that removals do not in practice occur and to check on where the refugee in question now is. Hang on, that is the clock striking 13 times, casting doubt on all that has happened before. It shows the Rwanda Government acknowledging in the treaty that, despite all the assurances in the treaty, it is possible that refugees will in practice be sent back to the countries from which they originally fled—and well might the Rwandans admit that possibility, because that is exactly what happened with their arrangement with Israel, causing the Israelis to break it off.
So we and they are to agree an effective system to ensure that that does not happen again; but we have not done so, and the task will not be easy given Rwandan geography and society. It is one of the unfulfilled promises listed in paragraph 45 of the report. In the absence of an effective system, up and running and proving effective, Article 10(3) cannot be even minimally reassuring to Parliament or, I would imagine, to the Supreme Court.
In conclusion, the considerations of international law and national reputation, which I mentioned at the outset, convince me that it would not be right to ratify this treaty at any time; and arguments from history suggest that it would be very reckless to do so any time soon. But these are my personal views. The IAC read its remit rather narrowly. What we did was consider whether the treaty can be said now, today, to meet the Supreme Court’s concerns. Our unanimous answer—I repeat, our unanimous answer—based on the overwhelming weight of the evidence that we received, was no: not today, not yet. Our unanimous recommendation is to delay ratification until the outstanding tasks have been carried out and the new systems proven in practice. So I support both Motions in the name of the noble and learned Lord, Lord Goldsmith.
The authors of the report, members of this distinguished committee, are doubtful that the treaty would change the position in Rwanda in the short to medium term. That will arise only if this treaty is in effect and the arrangements have been tested. Clearly, when we debate the Bill, we will have to see what reassurances we receive from the Government. On that basis, the authors recommend that the treaty not be ratified until Parliament is satisfied that the protections have been fully implemented.
It is worth looking again at Article 3(1) and (2) of the treaty:
“The Parties agree that the obligations in this Agreement shall be met in respect of all Relocated Individuals, regardless of their nationality, and without discrimination”.
That is the core agreement. It continues:
“The Parties agree to take all steps that are necessary or appropriate to ensure that their obligations can both in practice be complied with and are in fact complied with”.
That is the obligation on the Rwanda Government and on our Government. It continues:
“Those steps shall include continuing discussions, support”—
that is a matter that the committee was concerned about—
“and the fullest cooperation between the Parties with a view to maintaining and enhancing their practical ability to do so. Both Parties recognise the importance to that end of the monitoring arrangements set out in this Agreement, and the taking of all reasonable steps to ensure that that monitoring is as effective as possible”.
The committee none the less recommends that the treaty is not ratified, as have several speakers today, until Parliament is satisfied that the protections provided have been fully implemented. However, if it is not ratified there will be no Bill. That will end the process. The time for advancing those arguments is when we debate the detail of the Bill and ask: are we confident that it is right to have a second go?
I suggest that the report does not identify anything objectionable or contrary to principle in the treaty itself. The report’s concern is that the treaty obligations imposed may not be adhered to by the Republic of Rwanda when and if the Bill is passed and the migrants are sent to that country for processing. I remind this House that, as an earlier speaker said, the Supreme Court did not doubt the good faith of the Government of Rwanda. So the true question today is whether Parliament, when it debates the Bill, should have confidence that the aspirations on which it is founded are sound. Will the aspirations contained in the treaty be fulfilled? That is a judgment to be made then by Parliament and ultimately by Members of the other place as the elected representatives.
The second resolution therefore puts the cart before the horse, although obviously I have no problem with the first Motion. I suggest that the treaty itself is entirely reasonable. It contains clear obligations on both parties. The points made in the report can be given effect to either by amendment to the Bill or ultimately by not passing the Bill in its current form. I am not urging either of those courses at this stage, but that is what is open to Parliament.
It is in that debate that the proper forum will arise. First, Parliament is entitled to proceed on the basis that Rwanda now will act in accordance with its obligations under Article 10, which bind Rwanda in both international law and its own domestic law not to remove persons except to the United Kingdom. Secondly, if there is structural failure—even passing imperfections arise in practice—we can be confident that the matter will be taken up in Parliament and that Ministers, particularly in the other place, will be given a hard time. They will be pressured to act and there will be action. The Rwandan Government have made it clear that they see compliance with international law as paramount—not least, as we know, because they wish to replicate their United Kingdom deal with other countries.
In the Bill, as we have heard, Clause 2 will impose an obligation to treat the Republic of Rwanda as a safe country. That is something this House can debate when the Bill comes before it. It will have the committee’s report. If this House is satisfied that the country is unsafe, no doubt it will say so. That may be because, for example, no judges have been appointed; it might be for any number of reasons, but we can address Clause 2 then. But that does not go to the validity or the value of this treaty.
Today, I respectfully submit to this House and to those who have drawn up this very careful report, is not the place to oppose ratification and certainly not for the reasons advanced. If the House divides, I shall of course support the first Motion to Take Note, but I shall vote against the second Motion.
I also recall that when I visited Algeria in 2014, the British embassy did not know the whereabouts of any of the nine men whom we had deported there under that policy. Perhaps that is not so surprising, when even in this country it is possible to lose track of some 5,600 asylum claimants whose claims were withdrawn in the year to September 2023. But it is a concerning precedent when one is looking at the risks in Rwanda, including, of course, the risks of refoulement.
The committee has looked at the evidence before it including, heroically, the almost 600 pages of evidence published by the Government on 11 January. It is not satisfied; as the noble and learned Lord, Lord Goldsmith, has said, it has identified 10 further legal and practical steps that would be required to meet the concerns of the Supreme Court, which it does not anticipate will be met in the short to medium term. These include such vital elements as the new Rwandan asylum law and the implementation of arrangements for monitoring and judicial consideration. The noble Lords, Lord Purvis of Tweed and Lord Kerr, have added to the committee’s concerns in their powerful speeches.
The committee proposes that ratification should be delayed until Parliament can be properly satisfied that the protections written into the treaty have been fully implemented in practice. The committee has little to say about the treaty’s companion piece, the safety of Rwanda Bill. May I suggest two respects in which the Bill reinforces the committee’s recommendations?
First, the Bill is due to enter into force on the same day as the Rwanda treaty, which will itself enter into force immediately on ratification by both parties. Planes could, in other words, be in the air the day after ratification. That does rather demonstrate the practical dangers of ratifying prematurely.
Secondly, as the noble Lord, Lord Kerr, has said, the existence and terms of the Bill confirm the general view that the treaty has not yet rendered Rwanda safe. If the treaty were watertight, it could be defended with confidence in the courts, as was the MLAT with Jordan. Yet the Bill goes to considerable lengths to avoid such scrutiny, challenging as it does so the rule of law, the separation of powers between the courts and Parliament, our domestic human rights settlement, our compliance with international law and the Civil Service Code. If the Government were prepared to wait until things are as they need to be on the ground, and if that wait were as short as they claim it would be, none of this damage to our constitutional fabric would be necessary.
In the end, perhaps, it is as simple as this. The Bill seeks to give the status of law to what it calls
“the judgement of Parliament that … Rwanda is”—
not will be or could in the longer term become—“a safe country”. Our own specialist, cross-party committee, the only one in Parliament, has unanimously given us the clearest possible advice that we are in no position to make such a judgment so, for my part, I do not see how in good conscience we could make it. For that reason, I support both Motions in the name of the noble and learned Lord, Lord Goldsmith, and I shall vote for the second one if, as I hope he will, he chooses to test the opinion of the House.
Given that the Home Secretary has stated that
“we will not operationalise this scheme until we are confident that the measures underpinning the treaty have been put in place; otherwise, the treaty is not credible”,
do the Government concede that this is an eminently sensible proposal that should be given serious consideration? To take one example from the treaty, can the Minister reassure us that judges from a mix of nationalities will have been appointed to the new appeals body before any flights take off to Rwanda? In general, how long do the Government envisage that it will take for Rwanda to put in place the protections outlined in the treaty?
No one on these Benches is denying the complexity of the challenges that irregular migration presents globally and on our shores. The boats must be stopped. The traffickers must be stopped and held to account. Immigration must, of course, be controlled. However, this debate is focusing us on the issue of whether sending people to Rwanda is safe and humane. The Prime Minister has called on Peers to
“get on board and do the right thing”,
but I fear that it cannot be right to assure ourselves that asylum seekers will be protected by a few sheets of paper.