Amendment 24

Nationality and Borders Bill - Report (1st Day) – in the House of Lords at 6:56 pm on 28 February 2022.

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  • Division number 3
    A majority of Members of the House of Lords voted to add a clause reflecting the Government’s stated intention of compliance with the Refugee Convention and ensuring Part 2 provisions are read subject to that international legal obligation.

Lord Judge:

Moved by Lord Judge

24: Before Clause 11, insert the following new Clause—“Compliance with the Refugee ConventionNothing in this Part authorises policies or decisions which do not comply with the United Kingdom’s obligations under the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees.”Member’s explanatory statementThis new Clause reflects the Government’s stated intention of compliance with the Refugee Convention and ensures Part 2 provisions are read subject to that international legal obligation.

Photo of Lord Judge Lord Judge Convenor of the Crossbench Peers

My Lords, the noble Baroness, Lady Chakrabarti, has asked me to open the batting on this amendment. It is a very short, important and simple amendment that addresses an unnecessary problem. The Minister has told us—no doubt on the basis of legal advice—that the Bill in its present form is compliant with the 1951 convention and the 1967 protocol. In being so, the argument is, it will fulfil the Government’s repeated assertions that this is precisely what the Government intend. Indeed, the Minister said so in terms in answer to my request in Committee, and I apologise to her because at that late time of night I had simply missed what she said, or at least I had not fully absorbed it. She said:

“We are absolutely firm … that nothing in the Bill undermines our convention obligations”.—[Official Report, 10/2/22; col. 1985.]

So what is this all about?

I mean no disrespect to the Minister, of course not, but her statement is no more than mere assertion—an assertion of opinion based on what the department’s legal advisers have told and advised her. Some of us—indeed, many of us—share the Government’s apparently absolute commitment to the convention, but we do not think that the Bill does. We believe that the Government are wrong. In our view, provision after provision in Part 2—the debate will happen later on—contravenes the convention. With many others, I shall support the later amendments that seek to achieve compliance, simply because we believe that the provisions are not compliant. Many of us are lawyers too; we have to address convention issues, but many of us are not lawyers and are simply reading what the proposed legislation actually says. We are convinced that, as things stand, the Bill contravenes the convention, and does so repeatedly.

This is not a lawyerly quibble: even as we speak the problems of refugees are being shown to us in Ukraine. Rather than a lawyerly quibble, what worries me is that the debate has gathered echoes of the Christmas pantomime: “Oh yes,” say the Government, “This Bill is compliant with the convention”, and I reply, on behalf of others, “Oh no it isn’t compliant”, and the Government say, “Oh yes it is”, and we say, “Oh no it isn’t”, and so it goes on. But this is not a pantomime; this is lawmaking. I suspect that I am not the only person here who thinks it is a very strange parliamentary debate in which honest views exchanged in this way overlook that this is a deeply sensitive debate about which there has been much human suffering. The level to which it has plunged in relation to the pantomime is really rather serious.

The only place where this “Oh yes it is, oh no it isn’t” exchange can be resolved is in the legislation itself. If it is accepted, this very simple amendment will achieve both the frequently declared intention of the Government and the objective of those of us who believe that the legislation fails to do so. Let me explain this in a few words.

In future cases, the court will be bound by the provisions of the legislation which we have enacted—by its statutory provisions, not by repeated government declarations of their intentions. Even an advocate of the immense standing of the noble Lord, Lord Pannick, who sought to rely, in court, on the repeated assertions of the declared intentions of the Government, was met with: “But that’s not what the legislation says”. Maybe the noble Lord, Lord Pannick, would have an answer to this, but even if he produced one, it would not be very effective.

If we are right—and I believe we are—then we have this absurdity whereby the expressed intentions of the Government will be defeated by their own legislation. That is rather stark. If the expressions on behalf of the Government are genuine—and, although she is not here, I do not for one moment doubt the Minister’s personal good faith—we really are in cloud-cuckoo-land. The amendment will avoid that absurdity. There will be no uncertainty or equivocation. Any decision or policy in relation to the provisions of Part 2, whatever form they may eventually take, will be subject to the convention and protocol. This is on the unequivocal basis that it is a primary requirement of the legislation that any decision of the Home Office officials responsible, and any decision of the court considering those decisions under Part 2, must comply with them.

There is nothing new about a provision like this. I am indebted to the noble Lord, Lord Pannick, among others, for drawing my attention to Section 2 of the Asylum and Immigration Appeals Act 1993. We are right here in this very field:

“Nothing in the immigration rules...shall lay down any practice which would be contrary to the Convention.”

This is all that we are asking for here. Let us have that principle set out in the Bill in the form of this amendment.

Photo of Viscount Hailsham Viscount Hailsham Conservative

My Lords, those who heard the Minister outline the position of the Government earlier today with regard to the plight of Ukrainians must have been dismayed by his response. None the less, I make no personal criticism of him at all.

Some of us have in mind the cavalier attitude of Mr Johnson to treaties that he recently signed, such as the Northern Ireland protocol. When I consider many of the suggestions which come out of the Home Office as to how to deter migrants from coming to this country, I have no confidence that this Government will always comply with the letter—far less the spirit—of the convention. I do not suppose that the new clause proposed by Amendment 24 will be a complete remedy. However, it is a very useful statement of an important principle, and I shall vote for it.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

Not surprisingly, there is nothing I could add to what the noble and learned Lord, Lord Judge, has said. We shall certainly be supporting this amendment if it ends up being put to a vote.

Photo of Baroness Hamwee Baroness Hamwee Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee

My Lords, from these Benches, I told the noble and learned Lord that we will be supporting him. He said that that was the right answer.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I signed this amendment for all the reasons that were given by the noble and learned Lord and because it is of vital importance, especially at this time, that the legislature makes it clear that it intends and requires that the Government comply with their international obligations.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for proposing the new clause. The noble and learned Lord, Lord Judge, said that it was a short one; I respectfully agree, and hope that I can be brief in response without any discourtesy to the noble and learned Lord or, indeed, the other proposers of the clause. One point in his speech on which I think the whole House agreed was when he reminded us that, whatever the question, the noble Lord, Lord Pannick, will always be able to think of an answer.

Turning to the subject matter of the amendment and the proposed new clause, I first underline what was said by my noble friend Lady Williams of Trafford as to the Government’s commitment to their international legal obligations flowing from the refugee convention. Not only is it our intention to continue to comply with all of the legal obligations under that convention but we consider that this legislation does precisely that.

Our starting point is that the provisions of the Bill are compliant with the refugee convention but, none the less, the new clause is not something that I can support. Let me set out why.

The refugee convention, as I have said before, and effectively by design, leaves certain terms and concepts open to a degree of interpretation. That is an important feature of international instruments such as the refugee convention, allowing it not only to stand the test of time—some might say that it could now usefully be reviewed, but that is a separate point—but, more importantly, to be applied in and across many jurisdictions with differing legal systems. Necessarily, therefore, there is then a need to ascribe meaning to the terms of the convention at a domestic level. That meaning is determined by each signatory to the refugee convention in accordance with the principles of the Vienna convention, taking a good faith interpretation in accordance with the ordinary meaning of the language used in the convention.

Against that background, I suggest that it is absolutely right that Parliament may pass legislation setting out how the UK interprets the refugee convention and the UK’s obligations under it. Having a clear framework of definitions, and setting out unambiguously the key principles, promotes clarity and consistency in how decisions are made; as I have said in previous debates, that is a desirable approach. The mischief that I see in this amendment is that it would risk undermining the clarity and certainty that we are trying to create by effectively giving the courts a chance to look behind the interpretation agreed by Parliament in primary legislation when that interpretation is then applied through policy and subsequent decisions.

On the one hand, we want to give the pen to Parliament, so to speak, to set out a clear understanding and interpretation of the convention; Part 2 of the Bill is very clear as to our intentions in this respect. However, I suggest that this amendment would afford the courts an opportunity to come to a different understanding when looking at the policies and practices which put that system into effect. Of course, I accept that it will be for the courts to interpret the legislation once enacted, and I do not disagree that the courts have a role in overseeing whether policies or decisions comply with the interpretation of the convention as set out in the Bill; that is a given. But it is Parliament’s interpretation that is key here. It is not for the court to set out its own, potentially conflicting interpretation of the refugee convention and the obligations under it.

Therefore, far from creating a certain and consistent approach, this promotes uncertainty with policies and decisions being potentially judged against differing interpretations. If we are content, as I suggest we should be, that Parliament is legislating in compliance with the approach open to all state parties under the Vienna convention—that is, affording a good faith interpretation to the refugee convention—then this clause is not only unnecessary but promotes confusion and uncertainty for all those seeking to apply to, and comply with, the asylum system.

It would also be unusual to put in primary legislation the statement that Parliament, when legislating, is complying with its international obligations. International conventions cover a wide area of legislation, and if we did so here it could create questions as to why we did not do so in other statutes and why other statutes do not provide the same assurances.

The noble and learned Lord, Lord Judge, as alerted by the noble Lord, Lord Pannick, mentioned Section 2 of the Asylum and Immigration Appeals Act 1993. That already sets out the primacy of the refugee convention in domestic law. I will repeat what it says:

“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.”

Accordingly, if the aim of this proposed new clause is that the policies implemented under Part 2 of this Bill through the rules or connected guidance are meant to be compatible, and not incompatible, with the refugee convention, as interpreted by Parliament in this Bill, that can already be challenged by way of Section 2 of the 1993 Act. Our policies and decision-making will continue to be made in accordance with the Immigration Rules or published guidance.

What, therefore, would this proposed new clause add? My concern is that it adds a means for the court to question the interpretation given by Parliament to the refugee convention. I suggest respectfully that this would be contrary to a fundamental purpose of this Bill: for Parliament to define the nature of our obligations under the refugee convention while remaining compliant with those obligations. The proposed new clause potentially leaves the nature of obligations and terms under the convention open to the interpretation of the courts, removing the certainty that we are trying to achieve.

To put it in two sentences, if the aim is to make sure that the Immigration Rules and guidance are compliant with the refugee convention, that is already done under the 1993 Act. If the aim is any more than that, I respectfully suggest that it trespasses on a fundamental purpose of this Bill: that Parliament, and not the courts, should interpret how the UK implements the refugee convention. For those reasons, I respectfully invite the noble and learned Lord to withdraw the amendment.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Judge

Before the noble Lord sits down, do I understand that it is the Minister’s intention that, if this Bill is passed in its present form, in future no court shall look behind its provisions and consider what, under the convention and with the advice of UNHCR, its proper application and interpretation are? Is that the Minister’s intention?

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

In so far as the court has been told by Parliament that it can do that in the 1993 Act when it comes to the Immigration Rules, the court can do so. But, with the greatest respect, the courts interpret legislation; they are not there to go behind legislation with an autonomous meaning, so far as the courts are concerned, of what the refugee convention means. What the convention means is a matter for the member states, each interpreting it under the terms of the Vienna convention. With respect, it is not for the courts to second-guess Parliament’s interpretation of the UK’s obligations under the refugee convention.

Photo of Lord Judge Lord Judge Convenor of the Crossbench Peers

My Lords, faced with the problems to which Part 2 gives rise, we end up, on the basis of the Minister’s response, with the situation in which the court will look at provisions that we say contravene the convention and say, “Ah, Parliament has said that this provision must apply. Although it contravenes the convention, it must still be applied.” The court must do so, notwithstanding that the intention of the Government was that the provision should be compliant.

We are going around in circles. We are back to “Oh, yes, it is” and “Oh, no, it isn’t”, and that is no way for us to be on a measure of such crucial importance to many people suffering from the consequences of persecution, war, famine and so many things that afflict other nations and with which fortunately we are not afflicted. The House really ought to decide this. I ask the House to decide and tell us what its decision is.

Ayes 218, Noes 140.

Division number 3 Nationality and Borders Bill - Report (1st Day) — Amendment 24

A majority of Members of the House of Lords voted to add a clause reflecting the Government’s stated intention of compliance with the Refugee Convention and ensuring Part 2 provisions are read subject to that international legal obligation.

Aye: 218 Members of the House of Lords

No: 140 Members of the House of Lords

Aye: A-Z by last name

No: A-Z by last name

Amendment 24 agreed.

Clause 11: Differential treatment of refugees