I am grateful to the Minister for his thorough response, and to those who have spoken.
I looked at the reference to the Commonwealth when the Bill and the schedule were published. It is worth noting that 76% of Commonwealth countries are not considered by this Government to be safe, because 76% of the Commonwealth is not in the schedule. That is not us questioning it; that is the Government making their own decision.
The Minister, in his typically emollient way, suggested that we do not really understand these clauses and that if we did we should not be concerned because, as he put it, the legislation will have no practical operability. We are in a situation where the Home Office is doing the reverse of virtue signalling, which is to try to create, as my noble friend Lord Paddick indicated, the most punitive and threatening environment, of which the justice department will have to pick up the pieces. The Minister has been at pains to point out that there are many elements which would mean that there is no practical operability, but we are being asked to legislate for this, and on the basis of a lack of agreements.
On Monday, the Minister said to me:
“I suppose that the direct answer is that one would have to negotiate an appropriate agreement with the country concerned”.—[Official Report, 5/7/23; col. 1229.]
As the noble Lord, Lord Kerr, and others indicated, the Government have not done so, but they are still asking us to legislate. The Minister said that, when we are negotiating some of these agreements in the future, there would be a “force of public opinion” on the agreements and debate. But on the only one that we have, with Rwanda, there was no debate or consultation. We were surprised by it. It was not a treaty that was ratified by Parliament; it was an MoU. The International Agreements Committee forced a debate on the MoU in this House, in which noble Lords took part, and the committee raised the concern expressed by the noble Lord, Lord Coaker, about refoulement. Unfortunately, this is the pattern of the Government.
On Monday, the Minister was not even able to confirm to me—he said he would write to me and I am grateful for that—that there are child facilities in the Rwanda agreement, because it was not designed for that in the first place. That addresses the point that the noble and learned Baroness, Lady Butler-Sloss, indicated with regards to those who are children. I referenced
73 children, up to 2022, who would be in the situation of being referred to protection and then on their 18th birthday would receive, under the Bill, a third-country notice, and they would have no idea what that country would be.
5.30 pm
I say to the Minister that it is not the case that someone saying that, as he put it, they do not want to go back to a country is sufficient. The bar in Clause 38(4) is high. It is not a case of someone not wanting to go to a country. It involves an application to the Secretary of State who, under the Bill, has a duty to ask the country itself whether that person would be at risk. What on earth is that country going to say? “That person is going to be at risk, so please don’t send them here”—of course that is not going to happen. That is in the Government’s Bill.
The noble Lord, Lord Kerr, raised a point about the use of “in general”. I am puzzled by the reference to the fact that we have a 20 year-old precedent for this. I would be grateful if the Minister could write to me about that. What we do have in Section 80B of the 2002 Act is the definition of a safe third state. There is no reference to general terms within that. Section 80B(4) says:
“For the purposes of this section, a State is a ‘safe third State’”,
and it has three categories under paragraphs (a), (b)(i) and (ii), and (c), and it has no reference to “in general”. What it does have, in specific terms, under paragraph (c) is that,
“a person may apply to be recognised as a refugee and … receive protection in accordance with the Refugee Convention”.
It is our law that we do not send someone to a country if it is not a signatory to the refugee convention. That is now being absolutely turned on its head, and there is no protection for that. I would be grateful if the Minister in writing to me could indicate how the Bill sets itself against the 2002 Act, which is not being repealed.
A number of other areas in this group have been raised by noble Lords. We will have to return to this. There has been an insufficient response. Simply saying that we need not fear because legislation we are being asked to pass is not a danger because it will not be operable is no way of making legislation. In the meantime, I withdraw my opposition to the clause standing part.