Rwanda: Memorandum of Understanding

Question for Short Debate

Asked by

To ask His Majesty’s Government why they used a Memorandum of Understanding rather than a treaty as the vehicle for the agreement with Rwanda on the transfer of asylum seekers. Relevant document: 7th Report from the International Agreements Committee

My Lords, I am delighted, after four months, to see the International Agreements Committee’s report on Rwanda debated here; albeit, I have to say, because of my success in a ballot rather than because of its importance. Yet this issue is important to the asylum seekers involved but also for the future of our parliamentary role in scrutinising the action of Ministers.

Thanks to the Constitutional Reform and Governance Act 2010, treaties must be laid before Parliament for 21 days, where they can be debated, evaluated and, in the case of the Commons, their ratification endorsed or delayed. That is a powerful stay over the ability of government to make international treaties without parliamentary consent.

Today, we will hear from members of the International Agreements Committee who wrote this report: the noble Lords, Lord Kerr of Kinlochard, Lord Lansley and Lord Razzall, the noble and learned Lord, Lord Morris of Aberavon, and the noble Earl, Lord Sandwich, together with one of our newer members, the noble Lord, Lord Udny-Lister. On behalf of this House, they and other members of the committee examine every treaty and report on it. However, with the Rwanda accord, we see an issue with enormous human rights and rule of law implications, potentially affecting the lives of thousands, yet the agreement was signed not as a treaty but as a memorandum of understanding. This allowed the Government to bypass Parliament; indeed, it came into force on signature without any opportunity for parliamentary scrutiny.

Two weeks ago, on 12 January, two Lords committee reports on the usurping of parliamentary power by Ministers were debated in this Chamber. It was stated:

“The abuse of delegated power is in effect an abuse of Parliament and an abuse of democracy.”—[Official Report, 12/1/23; col. 1536.]

My Lords, I congratulate the noble Baroness, Lady Hayter, on securing this debate and, indeed, on her persistence in doing so. I think the committee, of which I was then a member, was absolutely right to conduct an inquiry and to challenge, as we did, the Government’s decision to use a memorandum of understanding as the basis for this arrangement with Rwanda. By deliberately making the arrangement—of course it is not an agreement, according to the Government—not binding in international law, the Government deliberately put it outside the scrutiny of the Constitutional Reform and Governance Act. So there is a very simple principle at stake in this debate: should significant international agreements be scrutinised by Parliament?

This agreement is in fact both significant and controversial. The cost is high. The risk of non-delivery is also high. There was insufficient evidence of potential effectiveness, such that the Permanent Secretary at the Home Office at the time had to seek a ministerial direction on value-for-money grounds before proceeding. The High Court has determined that domestic legislation gives the Government the necessary powers, but this does not preclude the possibility that removals to Rwanda of some individuals may conflict with the provisions of the refugee convention. This and the lack of any enforcement powers in the arrangement further strengthen the case for scrutiny.

The Government should recognise that their use of the prerogative power subsists by virtue of the Government’s control of Parliament. The sovereignty they enjoy is that of the sovereign in Parliament. When they fail to recognise this, or abuse the privilege, they hasten the day when we will need to legislate to specify when and how the Government can enter into such agreements and in what circumstances Parliament must assent. I think that in this case the Government got the procedure wrong. I hope that today the Government, whether or not they persist in the policy, will accept that they got it wrong and undertake not to repeat that error.

My Lords, I refer to the register and my support from RAMP. One reason why the MoU is such an important political issue, as agreed by the committee and the Government, and also a moral issue, is the widespread fear about the implications for children wrongly assessed as adults. I welcome the assurance in a Written Answer that

“no one undergoing an age assessment, or legally challenging the outcome of an assessment, will be relocated until that process is fully concluded”,

but I am advised that where the child has been assessed as an adult at the border, even if they subsequently challenge that assessment, they may still be issued with a notice of intent, which can create acute anxiety, especially as they have only seven days to respond. Can the Minister say whether that advice is correct?

Given the many procedural errors identified in the High Court Rwanda judgment and the chief inspector’s comment that the age-assessment process for those arriving by small boats was “perfunctory”, how can we have confidence that unaccompanied children who do not understand the age-assessment process or have no legal support will not be wrongly issued with a notice of intent? Can the Minister explain why, when we have been told that no decision has yet been taken as to whether families with children might be relocated, Care 4 Calais reports that 42, or one-fifth, of its clients issued with a notice of intent since last August have children?

My Lords, I share the views of the noble Baroness, Lady Hayter, and the noble Lord, Lord Lansley, somewhat cynically, that the Government have chosen this memorandum of understanding rather than a treaty so it should not be subject to parliamentary approval under the relevant legislation. That would mean a full parliamentary debate, permitting the treaty to be rejected. We have been unable to debate the Rwanda situation until today. Surely there should have been a debate on whether Rwanda is a safe country to send asylum seekers to, particularly in light of the recent history of genocide and ethnic cleansing in that country. It is even more important because many people do not realise that if a migrant seeks asylum in Rwanda and their application for asylum is granted, they only stay in Rwanda and lose the right to come here.

Few can doubt that our policy towards asylum seekers is in a mess. It is not just a failure to deal with migrant boats across the channel. I thought the Member of Parliament for East Worthing and Shoreham could not have put the problem better with his question to the Home Secretary at a recent Home Affairs Select Committee meeting. He asked her how a teenage migrant seeking asylum from an African country—and not Syria, Ukraine or Afghanistan—could apply for asylum. Her reply was that if the migrant arrived in the UK, they could put in an application on arrival; that would be the process. When Tim Loughton pressed her on how the migrant could arrive here legally, she had no answer. The disgrace of the current situation is demonstrated when the Home Secretary cannot answer a key question from one of her key supporters.

They did not say so at the time but the Government now maintain that the CRaG Act 2010 overruled the previous understanding that the Government would also draw to Parliament’s attention agreements not given treaty form but which bind the nation and

“involve international obligations of a serious character.”

I argue that the Rwanda agreement, and perhaps Prime Minister Johnson’s agreements with Sweden and Finland on security, match that description, but the Government say that the 99 year-old Ponsonby rule is dead.

The Government also reject the International Agreements Committee’s proposal to agree criteria for deciding whether an agreement should be a memorandum of understanding or a treaty. They say that that would restrict the royal prerogative. Yes, it would; I understand the argument, although of course it would depend on what the criteria were. What I do not understand is that they also reject the alternative course of agreeing criteria in determining which non-treaty agreements are so significant as to justify parliamentary scrutiny—the scrutiny Ponsonby promised. There would not be very many. I recall from my past life that most MoUs are routine—updating, renewing and not amounting to very much. They are small beer, certainly not worth Parliament’s attention. But there are some that are very important, and I would say that the Rwanda agreement is one of them. So I urge the Minister to ask the FCDO to look again at the idea of agreeing criteria for separating the many sheep from the few Rwanda-type goats. Substance matters as much as form—I would say, more so.

I declare my interest in RAMP as laid out in the register. The Lords Spiritual as a whole chose to speak out against the transfer of asylum seekers to Rwanda. We did not do this lightly, knowing the privileged role we hold in the life of our nation, but the memorandum of understanding brings into question fundamental issues about individual rights, our commitment to international law and our moral standing as a nation. It is because of these deep and important questions that I believe the use of an MoU was highly inappropriate.

The Government, in response to the International Agreements Committee in 2020, said that MoUs are used primarily for “technical or administrative matters”, but in this instance, we are talking about the transport of vulnerable people thousands of miles away, before and without considering their claim to asylum. This is not technical or administrative; these are men, women and children, to whom we owe a duty of care under international law. With such far-reaching implications, parliamentary scrutiny and debate should have been facilitated, whether or not the Ponsonby rule, or subsequently the Constitutional Reform and Governance Act, applies to non-treaty agreements. Let me also add that a monitoring board which has yet to meet and which sets its own work plan is not a sufficient level of oversight for an agreement of this nature.

I finish by briefly mentioning our responsibility to children. When announcing the Rwandan partnership, the then Home Secretary said that it would operate as a scheme mainly for single male migrants. However, we now know that Ministers are considering whether families seeking asylum at our borders will be subject to this deportation, the possibility of which I must say I find intolerable. Surely it would be unacceptable for any such extension not to be ratified by Parliament. If the Government do decide to include children in the scheme, which I implore them to simply disregard, they must commit to bringing it before this House. Children deserve the highest level of legal safeguards, in both the letter and spirit of the law.

My Lords, despite being one of those who strongly support the Government, certainly on these Benches, I rise with regret to say that I am in agreement with what has been said by many others. After years of political neglect, our asylum system is clearly broken. I fear that the agreement with Rwanda, which has so far failed to act as a meaningful deterrent, is but a distraction from what needs to be done to break the stranglehold of the criminal gangs who are profiting from the exploitation of people.

Other noble Lords have touched on the technicalities of why it would have been wiser to use a treaty rather than a memorandum of understanding, so I will not labour that point, except to say that I share the concerns of the noble Baroness, Lady Hayter, that an MoU eradicates the opportunity for effective parliamentary scrutiny. I hope that my noble friend the Minister can provide remedies for this concern in his winding up.

It is through the swift deportation of illegal immigrants to their safe country of origin, not through an MoU with Rwanda, that the perilous channel crossings will be brought to an end. I therefore welcome the Government’s commitment to introduce legislation that will see illegal immigrants deported within days if their claims for asylum are rejected. The Government can be assured of my support if that legislation comes here. Recently, the Government’s successful deportation of 43 people back to Albania was a step in the right direction—although a very small one when you consider that some 13,000 Albanians arrived in the UK last year. I wish the Government would direct more attention here. Does my noble friend agree that securing more bilateral agreements, such as the UK-Albania joint communiqué, must be the way forward if we are to secure our borders and have a fair asylum system?

I conclude by commenting on the asylum backlog. Some 140,000 people are waiting for a decision on their asylum claim. That is where efforts need to be directed, to get it under some kind of control.

My Lords, I support my noble friend Lady Hayter of Kentish Town for several reasons, of which three are particularly important. I hope the Minister will offer a satisfactory response to them.

First, MoUs are not legally binding documents; they involve no legal obligations on either side and they are not subject to parliamentary scrutiny. Therefore, to replace them is to emasculate our democracy. There are already threats to democratic practices in our country, and I do not think we need to add to them.

Secondly, given not just this Government’s record on migration but that of the previous one, there is always reason to worry about what they might do with the licence given to them to replace legal documents with memoranda of understanding. The important thing is that memoranda of understanding can easily become a kind of camouflage or cover-up under which you can write almost anything that you want.

Finally, asylum seekers will have no understanding of the prevailing conditions in Rwanda and therefore cannot know what effective representation they should make—hence there is always a danger that the MoU will badly damage their basic rights.

In the light of all this, it is not at all surprising that the United Nations High Commissioner for Refugees has said that this proposal is incompatible with the 1951 refugee convention. It is not just him; a lot of other people have also reached that conclusion. I therefore fully support my noble friend Lady Hayter and hope that the Minister can reassure us that this will not become common practice.