Nationality and Borders Bill

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

Commons Reasons

17:16

A message was brought from the Commons, That they disagree to an amendment made by the Lords to the Nationality and Borders Bill in lieu of an amendment to which the Commons disagreed, which was in lieu to a Lords amendment to which the Commons disagreed, for which the Commons assign a reason. They disagree to certain other amendments made by the Lords in lieu of amendments so restored to the Bill by the Commons disagreement to a Lords amendment, for which the Commons assign a reason. They disagree to the remaining amendments made by the Lords to the Bill in lieu of Lords amendments made in lieu of certain other amendments in lieu to a Lords amendment to which the Commons disagree, for which they assign a reason.

Motion A

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 5D, to which the Commons have disagreed for their Reason 5E.

5E: Because the Commons consider that the provisions of Part 2 are compliant with the Refugee Convention without the need for an interpretation provision; and that it is not appropriate to give the courts a power to make a declaration of incompatibility.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I beg to move Motion A that this House do not insist on its Amendment 5D, to which the Commons have disagreed for their Reason 5E. With the leave of the House, I will also speak to Motions B and C.

We return again to consider the Nationality and Borders Bill, and I am grateful to noble Lords on both sides of the House for the careful consideration they have given to the issues at hand and the care with which they have scrutinised this Bill. We must now make progress to pass this on to the statute book.

I turn first to Motion A and Amendment 5F, which would require that the provisions of Part 2

“must be read and given effect in a way which is compatible with the Refugee Convention”.

The Government’s position remains that the provisions of this Bill are compliant with the refugee convention. The other place has consistently accepted this position. Ultimately, though, I cannot support this amendment as it is an attempt to copy Section 3 of the Human Rights Act 1998, the effect of which on the interpretation of the legislation is unique and far outside the ordinary rules of statutory interpretation. The amendment goes on to provide a mechanism for the courts to declare that certain provisions may be incompatible. Again, I must take issue with this for the same reasons, because we absolutely assert that the interpretations of the refugee convention which we are taking in this Bill are fully compliant. I will explain to the House why it is open to us to take this view.

The refugee convention leaves certain terms and concepts open to a degree of interpretation by contracting states. This ensures that it can stand the test of time and be applied across many jurisdictions with different legal systems. Necessarily, therefore, there is a need to define and apply such terms in domestic legislation in accordance with the principles of the Vienna convention —the noble Lord, Lord Kerr, made that point yesterday —taking a good-faith interpretation in accordance with the ordinary meaning of the language of the convention.

The provisions in Part 2 are in line with this. They are clear and unambiguous, and are a good-faith interpretation of the refugee convention. The plain fact is that there may be differences in interpretation in different contracting states—that is how international law necessarily must work to allow it to remain relevant and applicable across a range of jurisdictions—but this does not mean that the interpretation we are taking here, to which we ask Parliament to agree, is not a good-faith interpretation. We have considered carefully the compatibility of these provisions with the refugee convention, and a great deal of the Government’s position was comprehensively set out in the all-Peers letter sent by my noble friend Lord Wolfson.

We need to consider one of the primary purposes of Part 2: to provide a clear interpretation of key components of the refugee convention. This will benefit all those who interact with the asylum system, be they Home Office decision-makers, the courts, legal representatives or, most importantly, asylum seekers themselves. We have talked at length about how people seeking protection deserve a clearer, quicker and more just system. Let us not take away from the gains made by this Bill by casting doubt on what Parliament has agreed are fair interpretations of the convention.

The new amendment is not only unnecessary because the contents of Part 2 are fully compliant with our international obligation; it is also contrary to a fundamental purpose of this Bill, which is, where possible, to tightly define the nature of our obligations under the refugee convention while remaining compliant with those obligations to support consistent and accurate decision-making.

Yesterday, the noble Baroness, Lady Chakrabarti, said that her Amendment 5D, to which this amendment is similar in effect, was intended to do

“no more, but no less, than that already provided for in law by the ECHR”.—[Official Report, 26/4/22; col. 148.]

The ECHR has been given effect in domestic law through the Human Rights Act 1998 and is constitutionally different, as the ECHR has a supranational body whose judgments relating to interpretation are binding. The Human Rights Act therefore gives courts the authority, so far as it is possible to do so, to read and give effect to primary legislation and subordinate legislation in a way that is compatible with the convention rights.

However, the Act goes further and recognises the primacy of Parliament, as a declaration of incompatibility does not invalidate either the primary legislation or subordinate legislation where primary legislation prevents removal of incompatibility. The refugee convention has no supernatural court—I mean supranational court; things are getting spooky—and is not incorporated into domestic law. It is no different to other international instruments beyond the ECHR, and there is no rational reason to treat it or Part 2 of this Bill differently to other parts of the Bill in this regard. The amendment would have wider cross-government implications.

The amendment now includes a requirement for the Secretary of State to be notified when the court or tribunal is considering whether to make a declaration of incompatibility with the refugee convention, and allows the Secretary of State to join proceedings. Unfortunately, that does nothing to alleviate our objections to the amendment, as I have just outlined. Our position remains that the provisions in Part 2 are fully compliant with our international obligations, in particular those under the refugee convention.

Turning to Motion B and Amendments 6H and 6J, I must again insist that we cannot accept anything that goes against one of the absolutely fundamental aspects of this Bill: deterring people from making dangerous and unnecessary journeys. The status of Clause 11 as a deterrent is closely tied to the “first safe country” principle. Although the inadmissibility policy encourages asylum seekers to claim asylum in the first safe country they reach, it might not always result in an asylum seeker being removed to a safe third country; for example, due to some documentation or logistical issue. Consequently, the differentiation policy is required to add an extra layer of deterrent to the asylum policy framework, and we have a moral obligation to act to prevent such dangerous and unnecessary journeys. I cannot, therefore, accept this amendment.

I turn now to Amendment 6H, which again seeks to shift the burden of proof in applying Clause 11 on to the Secretary of State and seems to intend to make it more difficult for the Government to apply one of their core principles. First, I assure noble Lords that my officials are developing detailed guidance for decision-makers to assess whether the claimant qualifies for refugee status and, where they do, whether they are a group 1 or group 2 refugee. As is currently the case, we will continue to support claimants throughout the asylum process to ensure that they are able to present all evidence substantiating their asylum claim, including in relation to whether they are group 1 or group 2 refugees, for example via a substantive asylum interview with a Home Office official. As I explained, while Home Office officials will continue to provide this support, it remains necessary for the claimant, not the Secretary of State, to demonstrate whether they are group 1 or group 2. I therefore cannot accept this amendment.

I turn now to Amendment 6J, which, to be clear from the outset, is completely unnecessary. The Government, as I and my colleagues in the other place have said many times, are fully committed to complying with our international obligations. All the clauses in this Bill, the changes to the Immigration Rules which will be required to implement them, and the New Plan for Immigration more broadly will be compliant with all our international obligations. This includes our obligations under the refugee convention, the European Convention on Human Rights, and the United Nations Convention on the Rights of the Child.

In fact, there is already legislation which ensures compatibility between the Immigration Rules and our obligations under the refugee convention. Section 2 of the Asylum and Immigration Appeals Act 1993 already sets out the primacy of the refugee convention in the Immigration Rules. It states:

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


I remind noble Lords that it is our unwavering position that all provisions in the Bill, including Clause 11, are compliant with our obligations under the refugee convention. I also assure noble Lords that Section 2 of the 1993 Act will continue to act as an additional safeguard for policies covered in the Immigration Rules, which will include differential treatment of refugees. As such, I cannot support the amendment.

Turning lastly to Motion C, Amendments 7F and 7G would effectively create an amnesty to allow people who have claimed asylum prior to the commencement of the Bill, along with their adult dependants, the right to work after six months rather than the current 12 months, as well as removing the condition restricting jobs for people who are allowed to work to those on the shortage occupation list. The amendment would not only reward people who have in many cases arrived illegally in an attempt to undermine our economic migration system, but it would create enormous operational burdens for the Home Office to implement, very likely—as per the findings of the Government’s review into the policy —leading to a net yearly loss to the department in running costs.

I reassure noble Lords that the Government want to see all claims being settled within six months, so that people can get on with rebuilding their lives, including working. We are making every effort to ensure this is a reality under the New Plan for Immigration. I therefore advise the House that we cannot accept this amendment. I conclude my remarks there and beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

[Baroness Chakrabarti]

At end insert “and do propose Amendment 5F in lieu—

5F: Insert the following new Clause—
“Interpretation of Part 2
(1) So far as it is possible to do so, the provisions of this Part must be read and given effect in a way which is compatible with the Refugee Convention.
(2) If a court or tribunal determining a question which has arisen in connection with the provisions of this Part cannot read and give effect to those provisions in a way which is compatible with the Refugee Convention, it must make a declaration to that effect.
(3) Where a court or tribunal is considering whether to make a declaration of incompatibility, the Secretary of State is entitled to notice in accordance with rules of the court or tribunal.
(4) In any case to which subsection (3) applies the Secretary of State is entitled, on giving notice in accordance with rules of the court or tribunal, to be joined as a party to the proceedings.
(5) Notice under subsection (4) may be given at any time during the proceedings.””

[Baroness Chakrabarti (Lab)]

My Lords, once more I thank noble Lords for caring about the refugee convention, and I thank the Minister for the courtesy of each and every one of our exchanges over many months.

17:30

Last night, however, her colleagues in the other place gave barely one thought, and certainly two fingers, to your Lordships’ House. The Minister there made just one argument, a shorter version of the noble Baroness the Minister’s, which I will come to. He gave just one argument against my amendment: that courts should not be able to declare laws incompatible with human rights. Therefore, the Government’s position in the other place moved from “this Bill complies with our obligations and so do we” to “and what’s more, the courts have no place at all in scrutinising our compliance.” Yet earlier today, on the Judicial Review and Courts Bill, the noble and learned Lord, Lord Stewart of Dirleton, for whom I have enormous respect, urged us to trust courts. That was in relation to prospective-only quashing orders, which generally will be more likely to suit the Government than individuals, let alone desperate, vulnerable refugees.

The Minister developed her colleague’s argument a little more just now, and I am grateful for that. She made a distinction regarding being able sometimes to declare laws incompatible with the ECHR, on the basis of the European convention having a court in Strasbourg that sits as an occasionally perhaps supernatural, but certainly supranational court. However, I am afraid that that distinction does not work for me, not least because many of her colleagues spent many years complaining about that international court and saying that our courts know better and that therefore, we should pay less attention to the court in Strasbourg and more attention to empowering our own courts. That is what the courts themselves have done in recent years in relation to the jurisprudence of the Human Rights Act. They have been more confident as domestic courts empowered to defend our rights and freedoms here. That is what our courts should be doing in relation to the refugee convention as well.

What is more, one minute, the Minister said that the refugee convention was not incorporated into our law, and the next she reminded us that it is, by way of Section 2 of the 1993 Act, which provides that Immigration Rules must comply with the refugee convention. How odd it is that Immigration Rules, which are a legislative device, should comply with the refugee convention but individual acts of discretion, whether by Home Secretaries, immigration officers or prosecutors, need not necessarily do so. That seems very odd indeed—an internally illogical and incoherent argument.

We talked about human rights all over the world at Oral Questions earlier and had the privilege of hearing from the noble Lord, Lord Ahmad of Wimbledon. Democratic states have written constitutions which entrust supreme courts with the authority to hold Governments to account and even to strike down legislation that violates fundamental rights. Here, in our system, courts can only ensure that executive discretion is lawfully exercised, including by prosecutors, immigration officers and Home Secretaries. Executive discretion is lawfully exercised and very rarely can declarations, which are only persuasive, be issued. The incompatible law remains in place and the declaration is simply, “Please think again, Government and Parliament.” That is done when a law is found to be absolutely in violation of fundamental rights. However, it now seems that even that level of judicial scrutiny is too rich for this Government’s blood.

I recognise that we may be only a revising second Chamber, but if not to defend the rule of law, what are we for?

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I rise, I hope for the last time—a hope which will be shared by every Member of this House—to support this amendment. There are not many issues that it is worth going to the stake for, but surely the rule of law is one. I have spent 60 years of my life on it and do not propose to stop here. I suggest that your Lordships support this too.

This Motion as now put fully respects the sovereignty of Parliament, just as the Human Rights Act does. It is the one simple provision that is needed to ensure that questions about the legality of this Bill can be brought before our courts and decided by an independent judge, and it is surely the least contentious way of achieving that. Indeed, it is beyond logical objection. In truth, the only objection raised is that it is unnecessary —surely the weakest objection that one can ever produce. If we never passed a provision which was unnecessary, the statute book would be a good deal lighter and the better for it. But here, it is needed, unless Parliament—your Lordships’ House and the other place—is happy to oust the courts’ jurisdiction in the whole area of what constitutes a right to refugee status, to asylum sanctuary.

It did not appear seemly yesterday to intervene during the short contribution of—if he will allow me to call him this—my noble and learned friend Lord Mackay of Clashfern. My reverence for him is boundless, not least because 30 years ago he had the sagacity to promote me to the Court of Appeal. However, he surely cannot maintain that, because the Attorney-General advises, as she may well have done, that this Bill is refugee convention compliant, that is that and we should just buy into it without thought: that this would be a sufficient basis for putting the whole Bill beyond the purview of the courts. Think about Miller 2; think about the prorogation order. We were told very plainly, and none of us doubts, that Geoffrey Cox, QC and then Attorney-General, had said that this is perfectly lawful. But that did not put it beyond the courts. If ever there was a case for not putting compliance with international law beyond the courts, this surely must be it.

I will make three short points on the speech of the noble Lord, Lord Horam, yesterday, which attracted a rather ungenerous rebuke, although that is by the way. His first point was the general one that this is merely “an enabling Bill” giving the Government “power to do something”. That is surely not so in respect of the important group of clauses we are considering here, which, under the heading “Interpretation of Refugee Convention”, redefine it. Without our amendment, the courts would have no alternative but to apply those provisions, whether or not they are regarded as compatible with the convention. There is nothing by way of this being merely an enabling Bill; it is a declaratory Bill beyond question.

Secondly, the noble Lord, Lord Horam, reminded us of the five-page letter circulated by the then excellent Minister, whose ears must be burning already from the previous debate, and quite rightly, because his loss is a terrible one for us all. The letter set out the Government’s legal arguments for contending that these definition provisions can be viewed as convention-compliant. I have the greatest regard for the noble Lord, Lord Wolfson, and certainly there is not a soul at the Bar who could have made more persuasive arguments to that effect. But they are just that: arguments. They should not therefore, of themselves, necessarily win your Lordships’ support. Included among those arguments were many that had been roundly rejected in the course of this country building up a quarter of a century’s worth of plain, authoritative jurisprudence that decided the questions of what the refugee convention required, which the noble Lord, Lord Wolfson, acknowledged are now being overturned by the Bill.

Thirdly and finally, the noble Lord, Lord Horam, at col. 157 of yesterday’s Hansard, said that he fully agreed with the noble Lord, Lord Pannick, and myself,

“about the 2001 refugee convention”.

He called it the 2001 convention; obviously there is the 1951 convention. He continued:

“I do not want this Government to step outside that in any way. It would be a tragedy if that happened. It should not be allowed to happen; I believe that it will not happen.”—[Official Report, 26/4/22; col. 157.]


But surely he must accept that there needs to be scope, therefore, for somebody to look at it independently once the statute is enacted.

Finally, if we look at the front cover of this Bill, we will see a statement, required by the Human Rights Act, by the Minister—the noble Baroness, Lady Williams —which says, under the heading of the European Convention on Human Rights, that it is her view that

“the provisions of the Nationality and Borders Bill are compatible with the Convention rights”.

She may well indeed have been so advised by the Attorney-General, but surely nobody has ever doubted that that means that it is enough in itself; it is not. What the Act says is that you should try to construe it compatibly and if you cannot you declare it—precisely the mirror image of what is now proposed for this self- same legislation.

I urge your Lordships—not at this stage because it is so late in the day and the ping-pong ball has been returned two or three times already—to consider whether we really should quit on the constitutional issue on this vital rule-of-law question. At this stage, I urge the noble Baroness to divide the House on the issue and let it be supported by all those who want this country to abide by the rule of law.

[Lord Pannick (CB)]

My Lords, I support what was said by the noble and learned Lord. When this matter went back to the House of Commons last night, the Minister there said that the amendment from the noble Baroness, Lady Chakrabarti, was “unnecessary, inappropriate and unconstitutional”. What the Minister failed to recognise, with great respect, is that whether there has been compliance with the refugee convention has been a matter for the courts of this jurisdiction for at least the last 40 years.

17:45

In the case of Sivakumaran, which is reported in [1998] Appeal Cases, pages 958 and 990, Lord Keith of Kinkel said, for your Lordships’ Appellate Committee, that the provisions of the refugee convention

“have for all practical purposes been incorporated into United Kingdom law.”

That principle was recognised by Parliament in Section 2 of the Asylum and Immigration Appeals Act 1993. With the greatest respect, the noble Baroness, Lady Williams, is simply wrong to suggest that the refugee convention is not part of our law. It is distinct from most other international agreements for that reason.

I well appreciate that this Government do not like their decisions to be subject to supervision by the judiciary for legality. But, even for this Government, to present political expediency as a constitutional doctrine is a hard sell. What is inappropriate and unconstitutional—to use the Commons Minister’s words last night—is for the question of compliance with the refugee convention now to be determined not by the courts but a whipped House of Commons exercising its judgment.

There is another constitutional error, and a fundamental one, in the Government’s approach to this issue. The noble Baroness, Lady Williams, told the House yesterday that

“there may of course be more than one good faith, compatible interpretation”—[Official Report, 26/4/22; col. 170.]

of the convention. She is nodding her head. Again, with the greatest respect, that is incorrect as a matter of law. In the case of R v Secretary of State for the Home Department ex parte Adan, reported at page 477 of [2001] 2 Appeal Cases, on pages 516-17, Lord Steyn, speaking for the Appellate Committee, rejected a submission made by counsel for the Home Secretary that there was a range of acceptable interpretations of provisions of the convention. I well remember the case, because I was the counsel for the Home Secretary who made that very submission. I repeat the declaration that I made yesterday that I practise at the Bar often in immigration cases.

What Lord Steyn emphasised in rejecting the submission that there were a range of possible acceptable interpretations was that:

“The subject of the Refugee Convention is fundamental rights”.

Noble Lords will forgive me if I again quote, because it is such a fundamental point, but he also said, on behalf of the Appellate Committee of this House, that:

“In principle … there can only be one true interpretation of a treaty … In practice it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it. But in doing so it must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning.”

That is why the views of the United Nations High Commissioner for Refugees—who is so critical of the provisions of the Bill—are so important.

So the suggestion by the Minister, on behalf of the Government, that the Bill is a good-faith and therefore permissible interpretation of the convention is wide of the mark. The question is whether the Bill is a correct interpretation of the refugee convention—to which the answer is plainly no. To return to the phrase used by the Minister in the Commons last night, what is inappropriate and unconstitutional is for the Government, by the Bill, to try to prevent the judiciary of this country giving the correct answer to the question of whether the application of the provisions in the Bill would breach this country’s international obligations under the convention. I think we all know what answer the judiciary would give if that question were put to them—and we all know why the Government are so determined to resist the Motion from the noble Baroness, Lady Chakrabarti.

So why are we pursuing this; why should we pursue it? The reason is very simple, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has just said—because the Government are inviting Parliament to act in breach of this country’s international obligations and to prevent the judiciary from passing judgment on that question, contrary to the views of UNHCR, the Joint Committee on Human Rights, your Lordships’ Constitution Committee, the Bingham Centre for the Rule of Law, Amnesty International and so many other informed bodies. As your Lordships’ Constitution Committee said at paragraph 59 of its report on the Bill, published on 26 January:

“Compliance with the UK’s international obligations is a constitutional issue.”

When the Government’s position is based, as it is, on fundamental misunderstandings of our constitution and breaches of our international obligations, this House should exercise its power to invite the other place to think yet again. If, as I hope, the noble Baroness, Lady Chakrabarti, wishes to test the opinion of the House, she shall have my support.

[Lord Clarke of Nottingham (Con)]

My Lords, I attended throughout the debate on the Bill yesterday and remained completely silent, and I arrived today intending to follow that good advice again, because I was actually unable to attend the earlier stages of the Bill at any scale and thought it would be quite wrong for me to join so late. But this is an important issue, which I have listened to very carefully, and I would quite like to register my views.

Yesterday, I voted with the Government against all the amendments to the Bill, because I think we have reached the stage where the opinion of the Commons should prevail, and I am not fundamentally against them trying this new innovation of offshoring illegal immigrants. I very much doubt that it will work, but I think they are allowed to have their way and see what happens. But I did vote yesterday in favour of the amendment from the noble Baroness, Lady Chakrabarti, and the more I listen to the debate, the more it seems to me that there are hugely important constitutional issues here. We are not getting a satisfactory reply, and we are not even getting, in the House of Commons, any very considered response from the Ministers available.

We all know that the present Government particularly dislike their important subjects being subject to judicial review: they were very upset when their Prorogation was overturned. Many other Governments have rather regretted it, but I think it is a vital protection. The Government’s view that what they are doing complies with our international legal obligations and with our own unwritten constitution—which has no force if the courts could not sometimes apply it—is very unwise. I think we should just defend that essential protection. The idea that the opinion of the Attorney-General, whoever he or she may be, in a Government of whatever complexion, if accepted by the Government, should not be a matter that goes any further or be a subject either for Parliament or for the courts, is sweeping and, with the greatest respect, slightly absurd, because no Attorney-General, however distinguished, has ever been infallible on these matters. So I do believe that, among the many important provisions of the Bill, this is the most important of all because of its wider constitutional questions.

I congratulate the parliamentary draftsmen on their ingenuity in producing terms that exclude the jurisdiction of the courts entirely on such matters. I am sure that, if it were done this time, we would find it happening with ever more regularity, in Bill after Bill presented by future Governments to this House. We should make one last attempt to stop that and I am afraid that I have not been persuaded to turn away from my support for the noble Baroness, Lady Chakrabarti, if she presses her amendment again.

[Lord Kerr of Kinlochard (CB)]

My Lords, it is a great challenge as well as a great honour to speak after the noble and learned Lord, Lord Clarke. I shall speak to Motion B1, which again seeks to bring the Bill into line with our international commitments. I believe there is a very important point of principle at stake here. There may actually be two points of principle—I am not sure about the second one—but the key one is pacta sunt servanda. The rules-based system works only if the rules are respected by all. We have just heard again—and we could hardly have heard more authoritatively —that this Bill is in breach of our commitments under the refugee convention.

The noble Lord, Lord Coaker, reminded us yesterday that UNHCR, to which we gave the job of supervising the interpretation of the convention, has confirmed yet again, authoritatively, in the strongest possible terms, that the Bill breaches that convention. We have heard from the Government Front Bench chop logic about how the Vienna Convention on the Law of Treaties allows conflicting national interpretations—but that really will not wash, as the noble Lord, Lord Pannick, has reminded us. We agreed to UNHCR’s supervising role: it is in the convention. We can complain from the stands when the referee rules our man offside, but we are not allowed to send on a substitute referee, and the referee’s ruling stands. So, it is not surprising that this House has voted three times to remove or improve Clause 11, which is where the breach of the convention is crystallised.

Yesterday, we heard from the Conservative Back Benches suggestions—I think it was just one suggestion—that all this was foreshadowed, and so legitimised, in the 2019 Conservative manifesto. Not so. I have checked. What the manifesto says is:

“We will continue to grant asylum and support to refugees fleeing persecution”—


and, later on:

“We will ensure, no matter where you come from, your rights will be respected and you will be treated with fairness and dignity.”


“Fairness” and “dignity” are fine words, but how can they be reconciled with depriving desperate people of their convention rights and their access to public funds, condemning them to destitution without even the miserable £5 a day subsistence that we pay to those stuck for years in the asylum process queue? Can we honestly say that those to whom we would in future be giving nothing at all would be being treated with fairness and dignity? No: Clause 11 is wrong in principle—pacta sunt servanda—and it would be shaming in practice.

My second point I put much more tentatively. Again, it is one the noble Lord, Lord Coaker, touched on yesterday. I put it tentatively because I have never served in the other place, but he has, with some distinction. It seems to me that this House is being treated with contempt. Of course, the elected Chamber must have the last word, but its view must surely be informed by an understanding of the considerations that led the revising Chamber to propose the changes it did. If I am right, are the Government, with all due respect, not cheating when they blandly assert no incompatibility the convention, when they make no attempt to refute—but simply ignore—this House’s demonstration that there is clear incompatibility, and when they allow minimal time to discuss an issue that is so important to our reputation as a law-abiding country?

18:00

A revising Chamber surely has the right to have its revisions properly considered. That is why I would have wished us to give the other place a last chance to reconsider Clause 11 and the case for putting respect for international obligations plainly on the face of the Bill. But I have been advised by those whose judgment I respect that there is a limit to the number of issues that can be kept in play at this stage of the game; and I have been advised that, after three successful votes, I have reached that limit. Three strikes, and I am out, it seems. So, I will not be putting Motion B1 to the vote. I am very grateful to all those who have supported it three times. The record will show that this House believes in pacta sunt servanda. I am grateful to the Minister for the courtesy she showed in dealing with obstreperous points from me. I urge all those who would have voted for Motion B1 to vote, as I will, for Motion A1 from the noble Baroness, Lady Chakrabarti, if she puts it to the vote, as I very much hope she will.

[Lord Paddick (LD)]

My Lords, like the noble Lord, Lord Kerr of Kinlochard, whom I have the greatest respect for, I am not a lawyer, so it is with some trepidation that I enter the arena. But that is my role. As far as my common sense tells me, international agreements such as the 1951 refugee convention mean nothing if each and every signatory to the convention can reinterpret the agreement to suit its own political ends. The whole point of the refugee convention, like the European Convention on Human Rights, is to prevent rogue states passing domestic legislation that overrules the rights of refugees or the basic human rights of their own citizens in the wake of what was then the recent history of the Second World War.

On the back of their attempts to reinterpret the 1951 refugee convention, this Government appear to be about to remove the United Kingdom from the European Convention on Human Rights, judging by the comments of the Deputy Prime Minister on BBC Radio 4’s “Today” programme this morning. In the context of those convicted of terrorism offences challenging their segregation in prison, Dominic Raab said, at two hours and 21 minutes into the programme,

“it shows you why our Bill of Rights is so important to replace the Human Rights Act.”

So much for the Minister relying on the Human Rights Act in her arguments. I am reminded of “First they came” by the German Lutheran pastor, Martin Niemöller. If we do not speak out about this Government eroding the rights of refugees, as they seek to do in this Bill, the next step will be to erode the rights of each and every one of us.

Motion A1 is a final attempt to at least make the Government honest. As the noble Lord, Lord Kerr, said yesterday, if the Government were to say, “We know this Bill does not comply with the refugee convention, but we are going to enact it anyway”, they would at least be being honest. Motion A1, as I understand it, simply allows the courts to make a declaration that any parts of the provisions in Part 2 of the Bill are incompatible with the refugee convention and require the Government to take note of the finding—the Government having been given the opportunity to be joined as a party to the proceedings. If the noble Baroness, Lady Chakrabarti, divides the House, we will support her. I understand why she may not want to divide the House, but if this were our amendment, we would. This time, it is refugees’ rights; next time, it could be our rights that are in danger if the Lord Chancellor, the Secretary of State for Justice, the Deputy Prime Minister, gets his way.

We also strongly support Motion B1 for similar reasons. It should be for the Secretary of State to prove why a genuine refugee is to be categorised as a class 1 or class 2 refugee. In any event, any Immigration Rules that are applied to whichever group a genuine refugee is categorised by the Secretary of State as falling into must not permit any practice that would be contrary to the Government’s international obligations. If this were our amendment, we would be dividing the House, but we respect the noble Lord’s decision.

On Motion C, I can understand why the noble Baroness, Lady Lister of Burtersett, having won the argument yesterday by one vote, has chosen not to pursue the right to work for refugees, despite the Government being unable to produce a shred of evidence to counter the comprehensive and compelling evidence provided yesterday by the noble Baroness, Lady Stroud, which clearly demonstrated that the right to work is not a so-called pull factor. The arguments made by the Minister about costs, devoid of any facts based on real-world experience unlike those of the noble Baroness, Lady Stroud, were speculative and, never having been presented before during the passage of the Bill from my recollection, smacked of last-gasp desperation.

Liberal Democrats have long campaigned and will continue to campaign for the right of asylum seekers to pay their own way, to secure the dignity that comes from being able to support themselves and to integrate more effectively in society by being able to work. In case this is my last opportunity to speak on this Bill, may I say how appalled and disgusted I am by it? There is only one political party to blame for this shameful legislation, and that is the Conservative Party.

[Lord Coaker (Lab)]

My Lords, let me start by saying that I totally agree with my noble friend Lady Chakrabarti; I totally agree with the noble Lord, Lord Kerr; I totally agree with the noble Lord, Lord Paddick, and I totally agree with the noble and learned Lord, Lord Brown. Along with many noble Lords and Baronesses in this House, I have argued time and again against a Bill that most of us think is wrong and unethical. We have argued against the Government time after time on these issues, and I am going to spend a couple of minutes saying why I support the amendments from the noble Lord, Lord Kerr, and my noble friend Lady Chakrabarti.

I wanted to put that on record to start with because I do not want the position that we have taken—thinking that we have come to the end of the parliamentary political process with this—to be misunderstood to mean that we do not agree with my noble friend Lady Chakrabarti or with the noble Lords, Lord Kerr, Lord Pannick and Lord Paddick, or with any other Member who supports these amendments, because I do, and we do. But there comes a point—even I accept this, after what I said yesterday—where you have to recognise that this would be the fourth time that we would have sent this back.

The noble Lord, Lord Kerr, was kind enough to say what he did about me in the Commons, but I think that the Commons currently guillotines legislation far too quickly, which means that things are not properly considered. Frankly, that causes resentment—as happened the other day when we sent 12 amendments back and they were discussed in an hour—and people to ask why we should not send things back more often.

That is the root of the problem. But as someone who has stood for election on many of these issue and, like others, lost, fighting for this out in the community, I accept that the battle or argument now has to go beyond Parliament and out into the country. This is what elections are about. The Government get their way in the end because they won the 2019 general election and can pursue their agenda in Parliament. I can be angry, and this House can send a Bill back 10 or 12 times, but if the Conservative Government have a majority in the Commons, they will simply reject it. Of course we have a right to ask the Commons to think again, and in some cases it has done. I accept that there is a debate around how many times we should send Bills back, and whether we should send this one back once more; there is a legitimate question as to whether three times is enough or whether it should be four. But the position we have come to is that we think we are now at the end of the line. That is clearly not a view that everyone agrees with, but let it not be said that the disagreement is about the content of the Bill or the worth of the amendments; it is not. It is just about the best way to take this forward. That is the point I wanted to make.

It is worth reiterating that, as much as any other, the amendment from the noble Lord, Lord Kerr, goes to the heart of the Bill. Essentially, it was trying to say that the differential treatment of refugees would mean that vast numbers of people who come and claim asylum in this country would be criminalised. I cannot believe that that is acceptable, and that is what the amendment is getting at. We had the almost farcical situation where we were trying to imagine how someone could actually get here legitimately to claim asylum. We are an island, so what country can you come through unless you fly? But you cannot fly, because of the database checks that are carried out when you get on a plane, and so by definition you must come through a safe country to get here. According to the Bill we have before us, anybody doing that is coming illegally and should be stopped—unless they have come on one of the safe routes, but these are unavailable to large numbers of people.

The amendment from the noble Lord, Lord Kerr, goes absolutely to the heart of the matter. He and other noble Lords pointed out that this would have criminalised Ukrainians fleeing at the beginning of the conflict, and Afghans who had helped the British Army. That is why the noble Lord’s amendment is crucial, but these arguments have to be won not only in this Chamber but out in the country. But instead, to be frank, the Government say that we have a real problem with illegal immigration in this country and they are the only ones who will fix it—ignoring the fact that they have been in power for 12 years and have not managed to sort it out in that time.

The noble Lord, Lord Kerr, will appreciate that this is not a debate as to whether the amendment is right but about where we go to now. That is a position that noble Lords will have to consider for themselves, but we have considered it very carefully and come to the view that we have.

I have not always agreed with my noble friend Lady Chakrabarti, but on this she is absolutely right and I totally agree with the points she has made. Other noble Lords have joined in: the noble Lord, Lord Pannick, made his usual excellent contribution, as did the noble and learned Lord, Lord Brown, supported by the noble and learned Lord, Lord Clarke, who pointed out the importance of obeying international law and respecting our international obligations.

18:15

I will read out the UNHCR’s observation, because it is so damning of our country and our global reputation. In talking about this Bill and the importance of my noble friend Lady Chakrabarti’s amendment, it said that

“the United Kingdom’s international obligations under the Refugee Convention and with the country’s long-standing role as a global champion for the refugee cause”

are at risk because of the Nationality and Borders Bill.

That is absolutely tragic. It is not the Government’s intention, but that is what the UNHCR is saying would be the consequence of passing the Bill as it stands. I support absolutely what my noble friend Lady Chakrabarti is trying to do around the refugee convention.

As the noble and learned Lord, Lord Clarke, says, that is why it is so important. If the Government say that they are complying then they should put it in the Bill, so there is no doubt about it. But the Government refuse to do that and use words such as “compatible”. You then get into semantics. Is “compatible” the same as “complying”? I do not know, but as a non-lawyer I would think that it would carry more weight if it was on the face of the Bill than if it was not.

Again, it comes down to this point: which is the best way forward? From our perspective, my noble friend Lady Chakrabarti is absolutely right and the noble Lord, Lord Kerr, is absolutely right, but we are at the point in the parliamentary process where sending it back a fourth time would not be the appropriate way forward. Noble Lords will have to make their own judgment, but that is the judgment we have made. The battle will carry on and the campaign for a proper refugee system will carry on. That campaign will take place not only in this Parliament but in the various communities up and down the country, as we fight to remain the global champion that we have always been, and to offer asylum to those who deserve it and need it.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I made the point yesterday about the time we have spent on this; I do not think your Lordships have ever felt that we in any way have tried to rush this or any other legislation. We have gone many days in Committee, for 12 hours or more, discussing at length all the concerns and issues at hand. Many of the points have been remade today in a very articulate way.

I think my noble and learned friend Lord Mackay feels that he has been slightly misrepresented by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I wonder if he might check Hansard and come back to my noble and learned friend.

In response to the concern of the noble Baroness, Lady Chakrabarti, this has been clearly set out, as I have said before. These provisions are clear and unambiguous and a good faith interpretation of the refugee convention. The courts of course have an important role in ensuring that legislation is applied correctly, but it is for Parliament to make that legislation. That is the rule of law and is the result of our dualist system.

Turning to the noble Lord, Lord Pannick, we maintain that the general rule of interpretation in Article 31(1) of the Vienna convention requires a treaty to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. On that basis, as the noble Lord, Lord Pannick has quoted, we have taken a wide-reaching exercise to understand this and considered relevant factors, such as the law in other jurisdictions, case law and the words of academics. We believe that all provisions reflect a good faith, compatible interpretation of the refugee convention.

With those words, and echoing the words of the noble Lord, Lord Coaker, I think that it is time to pass this Bill.

[Baroness Chakrabarti (Lab)]

I thank all noble Lords once more. It is often a huge privilege to hear debates from all sides in this Chamber, but sometimes that privilege comes with an awesome burden, as the Minister knows all too well. I am referring not just to this Chamber but to noble Lords in other places in this building where they beaver away at their work.

I have had the privilege in recent months to serve on the new and important Justice and Home Affairs Committee, chaired by the noble Baroness, Lady Hamwee, which had the privilege of hearing not so long ago from the Home Secretary. While I will repeat my admiration for the Minister and the way in which we can disagree well, this is not the case with everyone.

I want to say a word about good faith, which has been cited a few times. Before that committee, the Home Secretary gave evidence about the pushback policy. The committee has members far more august than me, including my noble friend Lord Blunkett, who quizzed the Home Secretary about the legal basis for pushing back boats in the channel and the controversy that had raged. She assured us that there was a legal basis and that the purpose of the policy was to deter refugees and the evil trade. The purpose was to deter asylum seekers and we were assured that there was a legal basis, as was Parliament and the public. When that policy was judicially reviewed, the Home Office sought public interest immunity over provisions in the policy document that revealed that the Home Office knew that it would be contrary to the refugee convention to ever repel a boat with a person who said, “I need asylum. I am a refugee”. It was only because the courts were able to say no to the public interest immunity that the Government and the Home Secretary were exposed and that policy is now over. That is how important the rule of law is.

I have been torn in making my mind up about this Division right now. I have been so grateful for the support of my noble friends—my noble friend Lord Coaker in particular— but when the noble and learned Lord, Lord Brown of Eaton-under-Heywood says he will go to the stake for the rule of law, I will go with him. I have moved the Motion and would like your Lordships’ House to agree it.

18:23

Division 2

Ayes: 157

Noes: 212

18:43

Motion A agreed.

Motion B

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendments 6D, 6E and 6F, to which the Commons have disagreed for their Reason 6G.

6G: Because the provision in Lords Amendments 6D and 6E conflicts with clause 36; and because the provision in Lords Amendment 6F is unnecessary.

[Baroness Williams of Trafford (Con)]

My Lords, I have already spoken to this Motion, so I beg to move.

Motion B1 (as an amendment to Motion B) not moved.

Motion B agreed.

Motion C

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendments 7F and 7G, to which the Commons have disagreed for their Reason 7H.

7H: Because the Commons consider that asylum-seekers (save in limited circumstances) and their adult dependants should not be permitted to work while a decision on their claim for asylum is pending, even for a trial period of 3 years.

[Baroness Williams of Trafford (Con)]

My Lords, I have already spoken to this Motion and I beg to move.

Motion C agreed.