Westminster update: Lords continue to speak against Rwanda Bill

Your weekly update from the Law Society’s public affairs team on all the latest developments and debates in Parliament and across Whitehall.
The palace of Westminster in the evening.
Photograph: Thomas Riebesehl

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1. Lords continue to speak against Rwanda Bill

The Rwanda (Asylum and Safety) Bill continued to come under fire from peers of all parties as the bill began its committee stage.

On day one the Lords discussed the implications that the bill will have on the rule of law.

Baroness Chakrabarti (Labour) criticised the government’s attitude to checks and balances and to the UK’s unwritten constitutional settlement.

Lord Garnier (Conservative) also voiced his concern, mentioning that the government “can be as foolish as it likes. It can pass a law saying that all dogs are cats, but that does not make all dogs cats. It can pass a law saying that Rwanda is a safe country, but that does not make it a safe country.’

On the second day, the debate largely focused on the safety of Rwanda on the ground.

Lord Kirkhope (Conservative) tabled an amendment to compel the secretary of state to lay before parliament any declarations of incompatibility from the court under section 4 of the Human Rights Act. This would allow the courts to pass a contrary judgment that Rwanda is not safe.

Many peers pointed out that this amendment would have no real effect as a declaration of incompatibility is not legally binding in any way.

Day three focused on the effectiveness of the monitoring committee, provisioned by the government to ensure the Rwanda policy is operating effectively.

Lord Scriven (Liberal Democrat) pointed out that, if the monitoring committee finds issues with the operation of the scheme, it has no powers to remedy the problems.

Lord Purvis (Liberal Democrat) agreed, and said that the committee has no powers to ensure adherence to the Rwanda treaty, and can only make recommendations to a joint committee.

Baroness Wheatcroft (non-affiliated) questioned the reliability of the committee in itself, stating that two members of the monitoring committee will apparently be in the pay of the Rwandan government. She asked how the Lords can be reassured that the committee will be unbiased.

Peers also raised concerns about the bill being incompatible with the UK’s international obligations, especially in terms of interim measures granted against the UK.

Lord Etherton (crossbench) said that the provisions that allow for ministers to disregard interim measures are in plain breach of international law and the rule of law.

Lord Anderson of Ipswich (crossbench) also said that if a minister decides not to comply with an interim measure, the United Kingdom will be in breach of its international obligations.

Peers were unsettled further by the minister admitting that the decision on the part of a minister not to comply with an interim measure of the European Court of Human Rights will not be amenable to judicial review.

When the minister was pressed on this issue, he said that he was not in a position to go into detailed discussion on the point. He said that the minister deciding on the interim measure will be accountable to parliament on the personal decision about interim measures, but did not explain how.

The bill will go to report stage next on 4 March, at which peers will have their first opportunity to vote on amendments to the bill.

We will be pushing for amendments to address some of the serious issues the bill presents for the rule of law and access to justice.

2. Justice questions: backlogs, delays, and legal aid deserts

MPs used this month’s session of justice questions on 20 February to raise:

  • the shortage of legal aid
  • growing court delays
  • the legality of flights to Rwanda

Shadow justice minister Alex Cunningham highlighted the extensive delays faced by victims of rape and sexual offences before their cases reach court and pointed to growing legal aid deserts across the country, asking how this would be fixed.

Justice minister Mike Freer argued that the government is investing so these serious cases can be brought forward quickly and had increased spending on legal aid cases.

Labour MPs also questioned the crisis in housing legal aid, with Yasmin Qureshi asking what was being done to address the issues raised by the National Audit Office’s report showing the declining sustainability of legal aid.

Freer said £10 million had been invested to address these problems.

We recently published extensive research showing housing legal aid providers are on the brink of collapse.

Finally, conservative MP Sir Edward Leigh said the European Court of Human Rights had been wrong to impose a rule 39 injunction stopping flights of asylum seekers to Rwanda and called on the government to ignore the injunction.

Lord chancellor Alex Chalk argued the court would not need to intervene in cases in future as our domestic courts will have checked whether anyone removed to Rwanda would suffer serious harm.

3. SLAPPs bill put before parliament

On 23 February, Labour MP Wayne David’s private member’s bill on Strategic Litigation Against Public Participation had its second reading in the Commons.

Aiming to expand on the measures enacted in last year’s Economic Crime and Corporate Transparency Act (ECCT Act), the bill adds lines on the definition of a SLAPP, including a test to define what is ‘in the public interest’.

The ECCT Act only applies to cases that are related to economic crime, which the government claims is around 70% of SLAPP cases. The difficulty lies in those other, non-economic crime cases which are tricky to define and difficult to legislate for.

We have been feeding in members’ views via the Ministry of Justice who are supporting the bill and through direct engagement from parliamentarians.

While we support the aim of the bill, there are areas which require significant modification if the bill is going to achieve its aim.

In today’s debate, members across the house voiced support for the bill.

Shadow minister for victims Kevin Brennan voiced Labour’s support for further legislation while noting the need for changes if the bill is to successfully tackle all remaining SLAPPs cases without curtailing access to justice.

Andy Slaughter (Labour) also added his support but was more critical of the drafting of the public interest clauses and asked for more detail on the proposed costs regime.

Chris Clarkson (Conservative) noted that the use of subjective tests for determining the merit or type of case is not new and that the courts are capable of interpreting this legislation successfully.

Responding for the government, minister Mike Freer acknowledged that the government fully supports the bill and its aim to extend the provisions of the ECCT Act.

On the provisions for early dismissal and the implementation of the costs regime, he added that he has been working closely with the SRA to ensure guidance is clear. He also raised the issue of the subjective test but noted that, as drafted, the bill includes objective measures as well.

He was clear that the ill must strike a balance between defending against SLAPPs and protecting the right of access to justice.

We will continue to brief on this bill and put forward views from members on both the claimant and defendant side as we move on to committee stage.

4. Post Office: minister gives update on planned legislation

On Thursday 22 February, the government published the statement of intent on the proposed legislation to overturn wrongful convictions connected to the Post Office Horizon scandal.

The post office minister Kevin Hollinrake published a written ministerial statement detailing the scope and substance of the forthcoming bill.

Although we do not yet have sight of the legislation, there are key commitments in the statement that should go some way in alleviating concerns over the unprecedented nature of overturning convictions en masse.

The statement notes the key criteria for convictions to be included, setting out the relevant prosecutors, offence date and offence type.

The statement also notes that the legislation is likely to exonerate a number of people who were guilty of a crime.

The government deems this a price worth paying to ensure that many innocents are exonerated and will seek to mitigate that risk with a requirement, as a condition of access to financial redress, that individuals sign a statement to the effect that they did not commit the crime for which they were originally convicted.

Reassuringly for the legal sector, the statement is clear that the forthcoming legislation “does not set a precedent for the future relationship between the executive, parliament and the judiciary”.

The government notes that “the judiciary and the courts have dealt swiftly with the cases before them, but the scale and circumstances of this prosecutorial misconduct demands an exceptional response.”

We are now expecting a bill to be laid imminently and will be keeping a close eye on the text and implications.

Coming up:

The chancellor of the exchequer will give his spring budget on 6 March.

We have made a submission to the Treasury outlining steps the government can take to unleash the economic potential of legal services.

We are working on a number of bills in Parliament:

Safety of Rwanda (Asylum and Immigration) Bill will begin its report stage in the Lords on 4 March.

Victims and Prisoners Bill began its committee stage in the Lords on 24 January.

Renters (Reform) Bill will have its report stage in the Commons, date to be announced.

Criminal Justice Bill will begin its report stage in the Commons, date to be announced.

Leasehold and Freehold Bill will have its third reading in the Lords on 27 February.

Sentencing Bill will have its committee stage, date to be announced.

Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill will begin its report stage in the Commons, date to be announced.

Data Protection and Digital Information (No. 2) Bill will have its committee stage in the Lords, date to be announced.

Arbitration Bill will have its Lords committee stage, date to be announced.

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