My Lords, the policy of offshoring asylum seekers for assessment and resettlement abroad will indeed be costly, to judge from the down payment already made. Its likely deterrent effect is at best uncertain. However, as a lawyer, I start by acknowledging three things. The policy was given statutory force in the Illegal Migration Act, which we passed last year. It is consistent in principle with the refugee convention, which does not oblige us to settle asylum seekers here, but only to avoid sending them to places where their lives or freedoms are threatened. The principle was not called into question by the Supreme Court’s recent ruling.
The only issue that remains is safety. This Bill, said the Minister in the Commons,
“puts beyond … doubt the safety of Rwanda”.—[Official Report, Commons, 12/12/23; col. 751.]
How could it? The Supreme Court has already found that Rwanda operates a profoundly dysfunctional asylum system. We know from our own International Agreements Committee, whose conclusions we supported last Monday, that work still needs to be done to build institutions, change attitudes and monitor compliance. A solution may be within our grasp, but it is not a legal fiction, still less a legal fantasy. A way must be found of determining whether Rwanda is and will remain safe in reality.
When we are concerned about the safety of a country, we often consult the Foreign Office travel advice. Expertly informed and responsive to events, it is a valuable resource. However, in expecting Parliament to come to a judgment, in the words of the Bill,
“that the Republic of Rwanda is a safe country”,
the Bill makes no provision for expert scrutiny, second thoughts or revision of that judgment. Flattering as it may be for some of us to be treated as infallible, to cast Parliament as decision-maker in this changeable and fact-specific context is fraught with constitutional danger. If we are persuaded to take on that role, we will surely need, at least—as the noble Lord, Lord Kerr, has hinted—an independent body on the ground to tell us when the deficiencies already identified have been remedied, and a mechanism for ensuring that, when conditions change, the verdict can change.
Ouster clauses—even partial ousters such as those in Clause 4—are among the most fundamental attacks on the rule of law because they challenge, as the noble Lord, Lord German, said, Dicey’s first principle. Indeed, more impressively still in my book, they challenge the first principle of my noble friend Lord Hennessey that nobody—not even the Government—is above the law. However, the very seriousness of these issues means that we owe the Commons the courtesy of our careful consideration of them. For that reason, I will not support the amendment in the name of the noble Lord, Lord German, tonight.
Finally, I turn to Clause 5, with its proposed exclusion of the right to seek interim measures from the Strasbourg court. I view with dismay the proposal to defy successive rulings of the court, whose opinion on the matter is decisive under Article 32 of the ECHR, to the effect that these measures are binding on the states party to the convention. As we acknowledge in our own legal systems, and have previously acknowledged in this context too, the effective adjudication of any case can depend on a workable system of interim measures. Perhaps the Minister will tell us whether interim measures will be a feature of the new Rwandan asylum law, which, as far as I am aware, no one has yet seen.
We did, it is true, in the end accept Section 55 of the Illegal Migration Act, but that was presented as a negotiating ploy—perhaps a productive one, since the court is now in the course of improving its procedures for interim measures. This clause, however, is different. No such conditions are mentioned in it. The crocodile, having devoured the bun offered by the international court, now proposes to kick it into the water with a casual swipe of its tail. Some will say that this pass is sold, but I hope that, if only out of self-respect, your Lordships will push back hard at this casual dismantling of international protections that are as necessary now as they ever were.
4.56 pm