Lord Judge:

Moved by Lord Judge

182: After Clause 78, insert the following new Clause—“Compatibility with Refugee ConventionNothing in this Act is intended to undermine the obligations of the United Kingdom under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees.”Member’s explanatory statementThis new Clause reflects the Government’s stated intention that the Bill complies with the Refugee Convention and ensures that any ambiguity around interpretation of provisions is resolved in compliance with the Convention and its Protocol.

The noble Baroness, Lady Chakrabarti, has had to leave and has left me to speak. I start by apologising to the Committee that I did not speak at Second Reading. I hope that every Member of the Committee will be satisfied that, by sitting here till 10 pm on the Thursday when we are all supposed to be going home, I have done due penance. I shall also be very short.

The Government have expressly and repeatedly asserted, and continue to assert, that they will make sure that the Bill is compliant with our obligations under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees—good. Nevertheless, for all the assertions, for many of us—I include myself in it, although I only had to listen to the debate on the television—our concern about some of the provisions in the Bill arises simply from the fact that we do not see compliance or even consistency. That is an issue which will have to be resolved when we come back; today is not the time to list the various provisions in the Bill which seem non-compliant or inconsistent.

The purpose of the amendment is first to ask for the Minister to confirm, here at the Dispatch Box, that nothing in the Bill is intended to undermine the obligations of the United Kingdom under the convention. That would be a start. We then would presume that if the Government did not accept the proposals to amend that will come up on Report, that would have been based on the advice of government lawyers. You do not need to be a lawyer to know that there is a privilege position between the advice given by the lawyer to the client, but there is of course nothing to prevent the client saying, “It is my privilege”—which it is—“and I am prepared to disclose the advice that I have been given.”

Speaking for myself, I would need a great deal of convincing that the Bill as it now stands is compliant. If the Government were so advised and prepared to disclose their legal advice, we could examine it. I do not expect them to do so; that would be launching into the unknown in a way that no Government ever would.

In the end, this amendment is down really as no more than a marker, a warning, that the issue of non-compliance with the convention—to avoid its long title—is live and kicking, but it would a great start if the Minister were prepared to accept at the Dispatch Box the words that I have used in the terms of the amendment. I beg to move.

I love surreal art, even if I do not always understand it. This amendment seems to be completely surreal.

Twenty-six pages of the Bill are clearly non-compliant with the refugee convention, starting with Article 11. The Committee will remember Magritte’s “Ceci n’est pas une pipe”—a large canvas with a picture of a large tobacco pipe, nothing else, with across it the words, “This is not a pipe”. It is really dangerous for a Cross-Bencher to cross swords with the Convenor of the Crossbench Peers—there are terrible penalties for it—but the amendment is quite surreal in a Bill where a substantial part, 26 pages, is clearly not compliant with the convention and the protocol. That view has been supported by a number of extraordinarily distinguished lawyers in the Committee—by the noble Baroness, Lady Chakrabarti, for one, and I would like to say that at every stage of this Committee I have found her interventions particularly helpful.

The noble and learned Lord, Lord Judge, has now made clear that with this amendment he is merely sticking a pin in the Government; it is a warning of intention. If we were to get an Act of Parliament along the lines of Part 2—the asylum provisions—that included the amendment proposed by the noble and learned Lord, I cannot see what the effect would be in the courts.

Would a court pay any attention to the amendment? The court would have to be guided by the 26 pages of specific, detailed provisions that are in breach of the convention, so if the amendment were there it seems to me that it would be surreal and would have no effect. However, if it is merely a warning to the Government, then fine. I certainly share the noble and learned Lord’s view that what is required here is not the ineffective sticking plaster that the amendment would be but radical surgery.

My Lords, this has been a theme running through the Committee, so it is perhaps fitting that we should come back to it right at the end.

There is a question that I have asked a number of times but I still have not received a proper answer. To go back a step, noble Lords have challenged the Government on the point just made, that the Bill is not compliant with the refugee convention, and the UNHCR, among others, has made that very clear, and the Government have said, “We interpret the convention differently. There are lots of different interpretations.” So I have asked why we should accept the interpretation of this Government over that of the body that is given global responsibility for the refugee convention, and I am still not clear why.

We might have a better inkling of why we should do so if we were given not the actual legal advice, because I take the point about privilege and so forth, but some clearer understanding of what that legal advice contained. Indeed, two days ago—I cannot remember now whether it was in the middle of the night or not—the noble Lord, Lord Wolfson, was pushed on this matter and said:

“I hear the point from the noble Lord”— that is, the noble Lord, Lord Anderson of Ipswich—

“that he and others would like to see a greater fleshing out of the Government’s legal position. I have said that I will see what I can do to assist in that.”—[Official Report, 8/2/22; col. 1434.]

I know that was only two days ago—or even less, if it was in the middle of the night—but can the Minister update us on that? Will we get some kind of legal statement before Report? She is nodding, which is very hopeful.

My Lords, as a fellow penitent, though in my case probably for taking too much interest and spending too long sitting here—that is not intended as any sort of criticism of the noble and learned Lord—I thank him for explaining the amendment. Of course we on these Benches agree with the objective, which is hugely important, but I was a little puzzled, although I shall not go down the Magritte route, by the words:

“Nothing … is intended to undermine”.

I have been trying to think of a way of using the point about “sticking a pin” in this. I think it would be something about deflating, but I am not quite sure who we would be deflating and my imagination has rather come to a full stop. I am grateful to the noble and learned Lord for raising this point again.

Whether the amendment is a warning, surreal or whatever, surely if the Government believe their assertion that the Bill complies with the refugee convention, there can be no possible barrier to them accepting the amendment.

We certainly support the amendment. Throughout the passage of the Bill, the Government have repeated in both Houses that their plans are in line with the refugee convention. We, along with a great many other noble Lords, have some difficulty accepting that view, but if the Government believe that their plans are in line with the refugee convention and therefore, as it says in the amendment,

“Nothing in this Act is intended to undermine the obligations of the United Kingdom under the 1951 Convention”,

there should be no difficulty in them accepting the amendment. I suspect that we are about to find that there are all sorts of reasons why the Government will not agree to it, which will simply add to our view that they know that what they are doing is not in line with the 1951 convention. I think this will probably expose it once and for all, when they are not prepared to put that commitment into the Bill.

My Lords, I thank the noble and learned Lord, Lord Judge, for speaking on behalf of the noble Baroness, Lady Chakrabarti. He is absolutely right: we will not disclose our legal advice. We are absolutely firm on the fact that nothing in the Bill undermines our convention obligations and, on the legal position—which, I think, is what he is getting at—we have already committed to writing, and we will be setting out why we consider it compatible. I hope that that will dispel a load of arguments—while perhaps creating another load—but, with that, I hope that he will withdraw the amendment.

I shall of course withdraw the amendment for today, reflecting with some sadness that there is no Whip among the Cross-Benchers—I am very sorry about that. The issue cannot be resolved without the main provisions of the Bill being amended. It will take a great deal to persuade me and many Members of this House that some of the 26 pages of provisions are compliant with the convention. I was hoping that the Minister would positively assert that “Nothing in this Act” was “intended to undermine” our obligations but, as she has not, we have to draw our own conclusions. For today, I beg leave to withdraw the amendment.

Amendment 182 withdrawn.

Amendment 183 withdrawn.