Sir Robert Buckland is a former Lord Chancellor, Secretary of State for Wales and Solicitor General, and is MP for South Swindon.
The water temperature in the English Channel is about nine degrees today. For hardy or rough swimmers, this would mean exposure for only a few minutes and preferably in a wetsuit. For migrants travelling in a flimsy and unseaworthy small boat, it means a high risk of death.
Yesterday, on the first day of 2024 that illegal migrants have made it across from France, five people had already lost their lives, adding yet more tragedy to the hundreds who have already died. Add to that the thousands who are dying in the Mediterranean whilst attempting to cross in dangerous vessels, and the UK’s small boats scandal is but a part of a much bigger problem facing Western Europe.
Most of the British public does not like uncontrolled illegal migration. Neither do I. They rightly worry about its effect on public services and the ability of our system to cope. They are particularly exercised about the failure to remove people once their applications have been determined, and the delays in the system
I, too, am exercised about it. When I was in government, I worked with my friend and colleague Priti Patel to help create a system that, for the first time, meant that people who do not enter our country by lawful means were treated much more restrictively than those who do. The Government then chose to pass the Illegal Migration Act last year without trying to implement many of the provisions and policies of the 2022 legislation.
What has happened since, and has been tremendously positive, is the practical work of the Prime Minister on reaching a returns agreement with Albania, which has led to a 90 per cent reduction in unlawful entries from Albanian nationals and a reduction in small boat numbers last year by a third. This is solid and real progress, demonstrating that our policy has to involve a range of different elements. This week, we will focus on the Rwanda plan, which is but a part of the Government’s approach.
In the 2022 Act, we also provided in law for the offshore processing of asylum claims. The principle of using third countries to assist in dealing with asylum claims is neither immoral nor illegal. Other countries, from Australia to Denmark, have used or sought to use such facilities. When the Government announced its Rwanda plan in April 2022, this was in line with the thinking of many governments seeking to deal with growing accommodation and cost pressures.
What was somewhat novel about the proposal was that, rather than using UK law and process to deal with asylum claims, the responsibility for determining claims and the future of the asylum seekers sent there was to rest exclusively with the Rwandan authorities. In other words, the entire process was to be a matter for Rwand -, not Britain. In doing this, the necessity of being able to have the evidence to show that Rwanda’s processes meant that it was a “safe country”, not just in terms of the 1951 Convention on Refugees but also according to our own domestic law, became paramount.
Permission to appeal court decisions to the UK Supreme Court is only granted where an arguable point of law of general public importance ought to be considered. The Rwanda appeal was somewhat unusual in that, although the matter was unquestionably of a high level of significance, the matter really hinged on evidence rather than the law itself.
The Court looked at the position, not as of late 2023 but as of mid 2022, when the policy was first announced. It was not satisfied on the evidence that, as things then stood, Rwanda was a “safe” country that rendered this policy a lawful one. With admirable speed, the UK and Rwandan governments then moved last month to sign a Treaty to strengthen protections for refugees and migrants. Whilst the Treaty provisions themselves have direct applicability in Rwandan law and apply in UK Law via the Constitutional Reform and Governance Act (CRAG) ratification procedure, more domestic legislation was needed to deal with the question of the safety of Rwanda.
Although the current Bill only weighs in at a slim ten clauses, I still believe in the maxim: “less is more”. I have proposed some amendments that do the following things: remove the legislative fluff that does nothing to strengthen the law and risks creating more opportunities for litigation; stop the risk of cases having to go straight to the Strasbourg court rather than being dealt with here in the UK, and avoid further legal confusion about the effect of interim ECtHR measures.
I also think it best to make sure that the provision in Clause 2 that means that courts and tribunals will have to deem Rwanda conclusively to be a safe country should only take effect when our Government is satisfied that Rwanda has implemented all of its obligations under the new treaty to refine and improve its legal processes, ending the risk of return to countries of origin (or refoulement, in the language of the Refugee Convention). This will remove the argument that Parliament should not legislate to “change the facts” when the reality is that nothing has changed.
If we want to see planes taking off in 2024, then we should be making this Bill as clear and concise as possible. Amendments that seek to strengthen the Bill by totally removing any exceptional or limited claims (for example, terminal illness or pregnancy) will weaken it by making successful legal challenges to its provisions more likely.
The policy of using third countries to process asylum cases will not be helped by an unnecessary increase in tension between Parliament and the courts here in the UK. As Conservatives, we should be finding ways to preserve the balance within our constitution, rather than creating more flashpoints. The exceptional demands placed on our system by the Brexit process should not be treated as a precedent for legislation that deliberately pushes constitutional boundaries. In both the UK Internal Markets Bill of 2020 and the Protocol Bill of 2022/3, the prospect of exceptional legislative steps helped to concentrate minds in coming to sensible compromises on issues relating to the Northern Irish border, for example.
I know that all colleagues are trying to find a solution to this most challenging of problems. I very much hope that, this week, we will show that we can rise to this challenge.
Sir Robert Buckland is a former Lord Chancellor, Secretary of State for Wales and Solicitor General, and is MP for South Swindon.
The water temperature in the English Channel is about nine degrees today. For hardy or rough swimmers, this would mean exposure for only a few minutes and preferably in a wetsuit. For migrants travelling in a flimsy and unseaworthy small boat, it means a high risk of death.
Yesterday, on the first day of 2024 that illegal migrants have made it across from France, five people had already lost their lives, adding yet more tragedy to the hundreds who have already died. Add to that the thousands who are dying in the Mediterranean whilst attempting to cross in dangerous vessels, and the UK’s small boats scandal is but a part of a much bigger problem facing Western Europe.
Most of the British public does not like uncontrolled illegal migration. Neither do I. They rightly worry about its effect on public services and the ability of our system to cope. They are particularly exercised about the failure to remove people once their applications have been determined, and the delays in the system
I, too, am exercised about it. When I was in government, I worked with my friend and colleague Priti Patel to help create a system that, for the first time, meant that people who do not enter our country by lawful means were treated much more restrictively than those who do. The Government then chose to pass the Illegal Migration Act last year without trying to implement many of the provisions and policies of the 2022 legislation.
What has happened since, and has been tremendously positive, is the practical work of the Prime Minister on reaching a returns agreement with Albania, which has led to a 90 per cent reduction in unlawful entries from Albanian nationals and a reduction in small boat numbers last year by a third. This is solid and real progress, demonstrating that our policy has to involve a range of different elements. This week, we will focus on the Rwanda plan, which is but a part of the Government’s approach.
In the 2022 Act, we also provided in law for the offshore processing of asylum claims. The principle of using third countries to assist in dealing with asylum claims is neither immoral nor illegal. Other countries, from Australia to Denmark, have used or sought to use such facilities. When the Government announced its Rwanda plan in April 2022, this was in line with the thinking of many governments seeking to deal with growing accommodation and cost pressures.
What was somewhat novel about the proposal was that, rather than using UK law and process to deal with asylum claims, the responsibility for determining claims and the future of the asylum seekers sent there was to rest exclusively with the Rwandan authorities. In other words, the entire process was to be a matter for Rwand -, not Britain. In doing this, the necessity of being able to have the evidence to show that Rwanda’s processes meant that it was a “safe country”, not just in terms of the 1951 Convention on Refugees but also according to our own domestic law, became paramount.
Permission to appeal court decisions to the UK Supreme Court is only granted where an arguable point of law of general public importance ought to be considered. The Rwanda appeal was somewhat unusual in that, although the matter was unquestionably of a high level of significance, the matter really hinged on evidence rather than the law itself.
The Court looked at the position, not as of late 2023 but as of mid 2022, when the policy was first announced. It was not satisfied on the evidence that, as things then stood, Rwanda was a “safe” country that rendered this policy a lawful one. With admirable speed, the UK and Rwandan governments then moved last month to sign a Treaty to strengthen protections for refugees and migrants. Whilst the Treaty provisions themselves have direct applicability in Rwandan law and apply in UK Law via the Constitutional Reform and Governance Act (CRAG) ratification procedure, more domestic legislation was needed to deal with the question of the safety of Rwanda.
Although the current Bill only weighs in at a slim ten clauses, I still believe in the maxim: “less is more”. I have proposed some amendments that do the following things: remove the legislative fluff that does nothing to strengthen the law and risks creating more opportunities for litigation; stop the risk of cases having to go straight to the Strasbourg court rather than being dealt with here in the UK, and avoid further legal confusion about the effect of interim ECtHR measures.
I also think it best to make sure that the provision in Clause 2 that means that courts and tribunals will have to deem Rwanda conclusively to be a safe country should only take effect when our Government is satisfied that Rwanda has implemented all of its obligations under the new treaty to refine and improve its legal processes, ending the risk of return to countries of origin (or refoulement, in the language of the Refugee Convention). This will remove the argument that Parliament should not legislate to “change the facts” when the reality is that nothing has changed.
If we want to see planes taking off in 2024, then we should be making this Bill as clear and concise as possible. Amendments that seek to strengthen the Bill by totally removing any exceptional or limited claims (for example, terminal illness or pregnancy) will weaken it by making successful legal challenges to its provisions more likely.
The policy of using third countries to process asylum cases will not be helped by an unnecessary increase in tension between Parliament and the courts here in the UK. As Conservatives, we should be finding ways to preserve the balance within our constitution, rather than creating more flashpoints. The exceptional demands placed on our system by the Brexit process should not be treated as a precedent for legislation that deliberately pushes constitutional boundaries. In both the UK Internal Markets Bill of 2020 and the Protocol Bill of 2022/3, the prospect of exceptional legislative steps helped to concentrate minds in coming to sensible compromises on issues relating to the Northern Irish border, for example.
I know that all colleagues are trying to find a solution to this most challenging of problems. I very much hope that, this week, we will show that we can rise to this challenge.