Amendment 31

Part of Safety of Rwanda (Asylum and Immigration) Bill - Committee (2nd Day) – in the House of Lords am 5:00 pm ar 14 Chwefror 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench 5:00, 14 Chwefror 2024

My Lords, I shall speak in qualified support of Amendment 33, but before I do so I should say that it is a pleasure to follow the right reverend Prelate. Outside this House as well as within the House, I have heard her deploying her calm, compelling advice on a range of subjects connected with refugees and asylum seekers, and she has done so with her usual skill this evening.

Before I get to Amendment 33, however, I need to make two apologies and I hope the court will bear with me. The first is for my absence from the Committee until I arrived back this afternoon. My second apology is that right at the end of the debate at Second Reading, I made a factual error, for which I take full responsibility, although the advice came from elsewhere, when I said that homosexual acts were still illegal in Rwanda. I am glad to say that homosexual acts are not illegal in Rwanda: I was wrong. Having said that, the evidence of how homosexual acts are seen by society in Rwanda is now well behind the law that the Government there have introduced.

I turn to Amendment 33. We heard earlier from the noble and learned Lord, Lord Stewart, about the importance of Parliament as a court. Yes, the lawyers are more familiar than others with the expression “the high court of Parliament”. It is a nice conceit that Parliament likes to deploy from time to time, but it does not actually add up to a statement of fact. Let us just think about how courts operate. I am concerned to some extent about the abstraction of our debates on the subjects we are discussing at the moment. Let us consider what actually happens when a lawyer—say me or one of a number of my noble friends and colleagues around the House—has a client, in a room which they have entered extremely nervously, or in a very unpleasant surrounding in a place of detention, who has a very serious problem on which their whole future depends, whether it is a very long prison sentence, the break-up of the family or being sent to a faraway country where they never intended to go.

What we as lawyers do is, first, to analyse the complaint that is made. Secondly, we give an opinion as to whether there is an injustice. I hope that we are always frank; we sometimes have to be cruel to be kind in telling the truth. But if there is an injustice then we explain that the golden thread of English law actually has a number of strands. Yes, one is the jury system— I heard that replayed on the radio today—but another is that if there is a wrong, there is a remedy for it. It may be difficult to achieve a remedy for the wrong but there is a remedy and a procedure, and that procedure can be taken to a court.

In 50 or more years as a barrister, I have never sat in a room with a client and said, “We’re going to take your case to the court of Parliament”. They would rightly look at me with a face full of risibility and say, “What on earth do you mean? What is that concept all about?” If there is to be a court of Parliament applicable to what we are discussing, I suspect that Amendment 33, spoken to so ably by the noble Lord, Lord Kirkhope, and the right reverend Prelate, at least goes some of the way to showing how such a court could work. As set out in the amendment, it would require “a declaration of incompatibility”, which would not in itself produce a remedy, followed by an act or a failure to act by a Minister, which would then be discussed in this “court of Parliament”.

If we are not to have a normal judicial process, what is suggested in Amendment 33 at least goes some of the way. What is the result? If it goes some of the way and those of us who feel both viscerally and intellectually—the two are not incompatible—opposed to the general design of the Bill are looking for a way to allow the Government to have their legislation, on which they are so determined, but with a mitigation that can be determined through a court in relation to allegations of the generic unsafeness of Rwanda, then there we have the beginning of it, perhaps to be worked into a more sophisticated amendment on Report.

We were told by the noble and learned Lord that Parliament is a court because it cannot bind its successors. However, that sets an unrealistic task for the person who is sitting in the room with a barrister who is desperate for his or her future and is expecting an opinion to be given as to how a wrong can be put right. If Rwanda is demonstrably unsafe, there must be a justiciable and realistically available method of providing a remedy, even if that is by a construct of the sort in Amendment 33.

As for domestic proceedings, for example, I once appeared in a judicial review case for some female litigants who were IRA prisoners. They were being strip-searched in a prison far more often than was appropriate or necessary, so I was able to argue before what is now called the Administrative Court in judicial review that the decision not to stop that strip-searching—a decision by a Minister—was Wednesbury unreasonable, as we would say in the law. That is the normal process we follow and what we are doing here, unless at the very least we include something like Amendment 33, is to allow for there to be no remedy which can be offered to that person sitting in the room with the barrister. I urge the Government to consider this amendment, offered from a highly respected member of their own party, so that it may be a way of finding a compromise which some of us, at least, will be able to accept.