Baroness Chakrabarti:

Moved by Baroness Chakrabarti

At end insert “, and do propose Amendment 1B in lieu—

1B: Leave out Clause 1 and insert the following new clause—“IntroductionIn interpreting this Act, regard shall be given to the intention that its provisions, and any acts and omissions made as a result, are intended to comply with the United Kingdom’s obligations under-(a) the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms;(b) the 1951 UN Convention relating to the Status of Refugees including the Protocol to that Convention;(c) the 1954 and 1961 UN Conventions on the Reduction of Statelessness;(d) the 1989 UN Convention on the Rights of the Child;(e) the 2005 Council of Europe Convention on Action against Trafficking Human Beings.””

My Lords, I beg to move Motion A1 as an Amendment to Motion A. Ministers suggest that our Amendment 1, Amendment 7 as a consequential and Amendment 90 are wrecking and unnecessary. These criticisms are contradictory. If the Government take their international obligations so seriously, why should they be afraid to ensure that those charged with operating this proposed legislation, which clearly impacts on the rights of vulnerable people, understand that Ministers intend not to violate these rights? Why should Ministers have been unable to make a statement of their belief in ECHR compatibility in the Bill?

Alongside that strange logic comes a pseudo-legal argument from the Mickey Mouse school of jurisprudence that even to reference binding international obligations in domestic instruments somehow offends the sanctity of our dualist system. This is nonsense. It is because of our system, whereby international obligations signed by Ministers do not automatically become directly enforceable domestically without parliamentary approval, that successive Governments of both stripes have had to refer to various treaties or their contents in a host of relevant domestic measures. Section 2 of the Asylum and Immigration Appeals Act 1993 expressly gave primacy to the refugee convention. In 2009, in the EN Serbia case, the Court of Appeal found that that provision did not constitute informal or backdoor incorporation or undermine the principle of dualism, which is designed to protect parliamentary sovereignty and not to insulate Governments from their obligations. The Children Act 1989 takes its central best interests of the child principle directly from the UN Convention on the Rights of the Child—two of numerous precedents.

The treaties in our Amendment 1 were chosen by truly cross-party, all-party and non-party consensus for relevance to the people, measures and rights engaged by this Bill. The Government’s real objection, and to consequential Amendment 7 and Amendment 90, is that no one, especially His Majesty’s judges, should be able to second-guess Home Office decisions. That is simply contrary to the rule of law on which any civilised society, let alone a great democracy, must be built. None the less, in the spirit of respectful dialogue, we have listened, compromised and amended our new Clause 1, softening its requirement to require having regard to the various conventions when interpreting the Bill. There is no way that that can now be regarded as incorporation rather than interpretation.

Further, the consequential Amendment 7 is reformulated so that the Section 2 duty to remove a person will stand, notwithstanding an application for judicial review, if a court refuses permission, or even just refuses to make an interim injunction. To respond further to concerns from the other place and the Benches opposite about so-called protracted legal knots, interim relief preventing a removal is to be granted under our new version of Amendments 90 only after the Secretary of State has had a reasonable opportunity to tell a court why this should not happen. Far from being wrecking amendments, these are wholly reasonable compromises to restore some semblance of legality and respect for international obligations, domestic judges and the rule of law. I beg to move.

My Lords, there are three reasons we should be stubborn about not allowing the Bill to go through. The first is that this was not in the Tory Party manifesto: we do not have a duty to pass it. Secondly, Rwanda is not a safe country. Thirdly, we cannot pass legislation that allows the Government to break the law; that does not make sense.

My Lords, I support the amended version of Clause 1, put forward by the noble Baroness, Lady Chakrabarti. Whether or not Parliament intends to incorporate international treaties within our own law depends on the wording. The point was made on Report that the noble Baroness’s previous wording had no reference to interpretation. It seems to me quite clear now that the emphasis has been put on having regard to the provisions in these international treaties which bind this country for the purposes of interpreting this Act. I consider that this falls plainly on the right side of the line.

As for my own Amendment to Motion S, which the noble Lord, Lord Murray, has addressed, I thank the Minister for his time, patience and reasonableness over the discussions concerning this. I was principally concerned that those who are entitled to the protection of the convention because of a well-founded fear of persecution in the country stated in the removal notice should not have to have an additional test of irreversible harm in order to prevent removal there. The assurances the noble Lord has given have satisfied me over that concern, particularly in relation to the principles in the case to which he drew attention, HJ (Iran) for LGBT refugees. My concerns have been satisfied and for that reason I will not oppose the Motion of the Government on this point.

My Lords, briefly, we on these Benches support all the Motions to amend the government Motions. The noble Baroness, Lady Chakrabarti, has well made the point that even if one could have argued that the original Amendment 1 was a backdoor incorporation—an argument I always found unpersuasive—that objection certainly cannot be made of the new text of Motion A1, which is clearly nothing of the sort. The Prime Minister has been at the NATO summit in Vilnius upholding international law against breaches through Russian aggression. Indeed, the North Atlantic Treaty of 1949 cited the rule of law at one of the core principles. The Prime Minister was also recently at the Council of Europe summit. Again, the core values in the declaration were the threats to human rights, democracy and the rule of law.

On Report, the noble Baroness, Lady Helic, talked about how this amendment

“is firmly in the Conservative tradition of strengthening, not undermining, the international rule of law”.—[Official Report, 28/6/23; col. 704.]

She reminded noble Lords that

“Conservative Governments were instrumental in creating the first four conventions listed in the amendment”.

Finally, on Amendment 93, we still have concerns, as do doctors, about the proposals in the Bill for as yet unproven medical age assessments. Amendment 93 provides the most basic safety net for those undergoing age assessment: the right to appeal a judgment. Removing that right will not deter any smugglers, or child refugees in need of appropriate safety and protection. We urge support for the amendment Motions.

My Lords, I support Motion A1 but will speak more particularly to Motion U1 in my name, to which the noble Baroness just referred. It proposes that if an age-assessment judicial review is in progress, removal should be delayed until its completion. I welcome comments from Ministers that those subject to an age dispute will be accommodated in an age-appropriate setting here in the UK, but can the Minister confirm that will be the case in a third country? Will Rwanda, for example, be informed that a young person is subject to an age dispute, and will the Rwandan Government then be required by the UK to keep that person separate from other adult residents and to supervise them properly as a child until the courts have made a judgment?

The Secretary of State has a legal duty to have regard to the need to safeguard and promote the welfare of children. Can the Minister therefore say how the welfare of a child will be protected by not allowing judicial review to act as a temporary delay to their removal? The Government appear to be arguing that when a child legally challenges an age assessment, it is simply a spurious attempt to use legal methods to postpone removal. However, as we know, the Majority of children are found to be children after local authority assessments, so it is more likely that what is happening is an attempt to protect their proper right to be treated as a child. Can the Minister therefore take the opportunity at least to confirm that when an individual’s age is disputed, they will not be subject to removal before having met with a social worker and a child protection team for a more comprehensive age-assessment process?

The determination that an individual may be a child and therefore could deserve all the rights a child is due should and must be reason enough to prevent their removal. When the implications for children are so grave and lifelong, it seems that to not delay a child’s removal from the UK until those questions are resolved is immoral. I plead with the Government to recognise this as a failure of safeguarding, which we are all trying to treat at the highest possible standard. However, in view of the lateness of the hour when we are likely to reach a vote on this matter, and the many other matters your Lordships’ House has to deal with tonight, I am not minded at present to press this Motion to a Division.

My Lords, I do not know whether I should declare an interest as a pseudo-lawyer, or perhaps as Mickey Mouse. I am not entirely convinced that framing the debate in that way is appropriate.

I have a number of things to say. First, the fact that Motion A1, in the name of the noble Baroness, Lady Chakrabarti, has been rephrased as it has been, shows that those of us who argued that the previous version was substantive, and not interpretative, were right. However, the Motion as redrafted is also improper because it does two things—here I again respectfully part company with the noble and learned Lord, Lord Etherton. He read the Motion but omitted words in its second line. Let us have a look at what it actually says:

“In interpreting this Act, regard shall be given to the intention that its provisions”— that refers to the provisions in the Bill—

“and any act and omissions made as a result, are intended to comply”.

Even now, it is not properly an interpretative provision, because it does not just apply to interpreting the words; it is also said to apply to any acts and omissions made under the Act, as it will become. That still has substantive consequences, and the effect is still—this time in an evening rather than in an afternoon—that we are effectively incorporating these treaties into our domestic law.

That is why the words

“and any acts and omissions made as a result” are still objectionable, but the rest of it, while maybe not objectionable, is unnecessary. As I mentioned on Report, the law of this country has always been that, in the absence of express words to the contrary, all statutes are presumed to be in accordance with our international obligations. That was most recently set out by Lord Dyson, speaking for the Supreme Court in the Assange case, when he said that

“there is no doubt that there is a ‘strong presumption’ in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations”.

The fact that we now have to go through the contortions of trying to fit this reformulated Amendment into interpretation when it still has substantive consequences shows that this is a road down which we should not be going at all. In so far as the intention is that legislation should be interpreted in line with our international commitments, that is already part of the law. In so far as it says that

“any acts and omissions made as a result” of this Bill are to be so interpreted, that has substantive consequences.

I respectfully suggest that those points are not those of a pseudo-lawyer, nor are they Mickey Mouse points. If I may finish where I began, it is somewhat unfortunate that that is how they are being described.

My Lords, I have the misfortune to disagree with the noble Lord, Lord Wolfson. I support entirely what the noble and learned Lord, Lord Etherton, said. The key words in this reformulated Amendment are “In interpreting this Act” and “regard”. It would not write these conventions into our law, as the previous amendment was in danger of doing. This a pure interpretation provision, and it is entirely consistent with the way the courts approach these various conventions. The assumption is that the United Kingdom, having signed up to the conventions, will respect them in the formulation of its provisions in our domestic law. The court applies that principle in finding a meaning of the words before it in statutory instruments and in primary legislation. This is entirely in accordance with the way the courts approach the matter. The key words are, “In interpreting this Act”, and “regard”. It is not binding; it is just that regard will be had. That is the way the provision should read. I support the amendment because it is entirely orthodox and consistent with principle.

My Lords, I support my noble friend Lady Chakrabarti’s Motion A1 and the various provisions that follow from it. Without getting into the legal arguments that have just been articulated by the noble and learned Lords, Lord Hope and Lord Etherton, I support the fact that the key words are the first few words, in particular to try to deal with the criticism that was made of the previous Amendment.

The only point I would add is that it is important for us to have something like this in the Bill given the criticism, concern and questions that have been raised about the Bill by many well-respected international organisations, bodies and individuals. We all expect something to be done about the challenge that we face, but we want it done in a way which enhances our international reputation and conforms to the various international treaties and our responsibilities. That is why Motion A1 is particularly important and should be supported.

My Lords, I thank the House for the dispatch this group has been dealt with and for the contributions from across the Chamber. It will come as no surprise to the noble Baroness, Lady Chakrabarti, that I disagree with her interpretation and agree with that of my noble friend Lord Wolfson. Frankly, if one looks at Amendment 1B, one can see that “regard” must be read alongside “intended to comply”, so this revised amendment is equally problematic. The point my noble friend Lord Wolfson made is entirely right: it amounts to an acceptance that the earlier version of the amendment would also have been a very significant constitutional innovation, predicated on the back of an amendment to the Bill and a massive change to our constitutional framework. I am afraid that I therefore disagree with the noble Baroness and the noble and learned Lord, Lord Hope, on Amendment 1B.

On the point made by the noble Baroness, Lady Jones, the Bill of course sets up a framework whereby a person can be removed to a safe country. In the litigation in the Court of Appeal, as this House well knows, the court unanimously found for the Government: that it is lawful and within the meaning of the refugee convention for a country to allow processing by a third safe country. Clearly, that is what the Bill provides for.

I am very grateful for the kind remarks by the noble and learned Lord, Lord Etherton, and I am glad that we were able to reach the accommodation that he identified. On the comments from the noble Baroness, Lady Ludford, if a person objects to an age assessment, it is clearly open to them to challenge it by judicial review, but that will not be suspensive. On the points made by the right reverend Prelate the Bishop of Manchester, the duty to remove does not apply to unaccompanied minors—there is a power to remove in Clause 3 of the Bill—and if a child is to be removed in exceptional circumstance, it is open to that child and his or her representatives to make a suspensive claim.

As I have said in this House many times, the purpose of these provisions is to prevent people smugglers encouraging fraudulent claims to be children. On the question raised by the right reverend Prelate as to whether Rwanda will provide appropriate care for the children, this matter was extensively canvassed during the Rwanda litigation, and the court was satisfied that sufficient arrangements had been made in the memorandum of understanding. I invite noble Lords to refer to the judgment in that regard. I am very grateful to the right reverend Prelate for his indication that he will not press that amendment to a Division.

My Lords, I am grateful to all noble Lords, particularly to the noble and learned Lords who gave their ruling on the backdoor incorporation point. Of course, Section 2 of the 1993 Act was much stouter than either version of our Amendment 1.

Dr King, not a judge but a man of God, famously said:

“It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important”.

Across this House yesterday, we pleaded for kindness. Today, we come with a more modest plea: for the rule of law. I have moved the Motion and ask the House to approve it.

Ayes 217, Noes 151.

Motion A1 agreed.