Border Security, Asylum and Immigration Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 13th October 2025 Lords Chamber

[Lord Harper (Con)]

My Lords, I am perhaps not as warm towards this amendment as the noble Baroness, Lady Ludford, just was. It seems to me that it does give away its intention in the title,

“Primacy of the Refugee Convention”,


which fundamentally is an assault on whether we think Parliament has primacy in our view. Of course I will give way, although I have not got very far in my argument.

[Baroness Chakrabarti (Lab)]

As a point of information, does the noble Lord realise that the title,

“Primacy of the Refugee Convention”


is directly adopted from the Conservative’s Asylum and Immigration Appeals Act 1993, as brought forward by the noble Lord, Lord Clarke of Nottingham, and implemented by the noble Lord, Lord Howard of Lympne?

[Lord Harper (Con)]

I was not aware of that, but I am not sure it changes my argument. As we have just discovered by listening to the debates about Article 31 of the convention, part of the issue here is that the interpretation of the words is contested, as we heard from the points my noble friend Lord Murray set out when he talked about restoring what he feels is the original definition—indeed, that has already been done in the Nationality and Borders Act, which I think has about half-a-dozen interpretation sections interpreting parts of the convention—and from what the noble Baroness said when she disagreed that that was the original intention.

The whole point is that, if there are disputes about what the convention means, somebody has to decide what it means. It can be either be courts and judges or Parliament setting out what we think we have signed up to and being clear about that, and Parliament has done so in a number of cases. If you put this amendment into statute, it would effectively say that judges could assert that what Parliament said was not the interpretation of the convention and a judge would decide what to do.

The noble Baroness, Lady Chakrabarti, said that she has been careful to word this amendment so that the court could not strike down primary legislation. If I may say so, I do not think that is a terribly good safeguard, because an enormous amount of our immigration legislation is not primary legislation but secondary legislation. All the Immigration Rules are secondary legislation made by Ministers using primary legislative powers, so unless there is something explicitly in the primary legislation which gives Ministers powers to make Immigration Rules that specifically forbids a court being able to do this, if this amendment were carried, a court could strike down our Immigration Rules.

That would in effect mean judges, not Ministers, making the decision. Of course those Immigration Rules are not just made by Ministers; Ministers draft them, but they are put before both Houses of Parliament and approved by Parliament. In the end, my contention is that, if you want to have an immigration system that carries the support of the public, decisions have to be made by people who are accountable to the public.

The noble Baroness, Lady Ludford, talked about the convention being chipped away. Part of the issue is that a large number of members of the public do not think that it works for them. They think that people can come to this country as economic migrants, put their hands up and say that they are asylum seekers, and that that somehow gives them a free pass.

When I was Immigration Minister, I argued that we should have a tough system that lets people with a good claim stay but is clear that, where people do not have a good claim, we will kick them out. All that the charities that end up supporting them do is damage the public’s support for our asylum system. If people think that this is a way of getting around the system for economic migrants who get here, and that courts interpret the legislation in a way that is not intended by Ministers who are accountable to Parliament, it damages public support for the very principle that the noble Baroness is setting out; that is incredibly damaging.

[Baroness Chakrabarti (Lab)]

I thank the noble Lord for giving way a second time. My point is on not the big stuff around public opinion but the specific question of the danger of courts striking down the Immigration Rules. Does the noble Lord realise that the 1993 Act, which he said a moment ago does not really matter, is still in force; and that the provision I cited already prohibits the Immigration Rules breaching the refugee convention?

[Lord Harper (Con)]

Parts of the Act are still in force, obviously, but, if what the noble Baroness says were true, there would be no need to have her amendment. The fact is that, if you say that the courts can decide that the convention—as they interpret it—can override legislation, that is damaging. The world is a very different place now from what it was in 1951 when the convention was adopted. You have to reflect that by democratically accountable Ministers and legislators making decisions about how we interpret it in the modern era; that is how you strengthen the principles underpinning it, but in a way that works in the modern world. If you do not do that, you will just have more people thinking that the whole thing is nonsense and that we should pull out of it. Actually, I do not think that we should pull out of it—it needs work and it needs to be amended, but we also need to interpret it correctly. My noble friend Lord Murray’s amendment, which sets out a definition that is relevant in the modern world around people who pass through a number of safe countries then choose to come to the UK, is sensible; it would, I think, have the support of a large number of people in the United Kingdom.

In the end, the decision on whether that is the correct interpretation of the convention should, in my humble opinion, be taken by Ministers and by Parliament. It should not be taken by judges being able to insert their interpretation of the 1951 convention, as it was drafted for a very different world, and how they think it should be interpreted now. That would be a retrograde step and would not do what the noble Baronesses, Lady Chakrabarti and Lady Ludford, are trying to do. I think that they are frustrated that the public do not support the provisions of the convention and they are being chipped away at, but what the noble Baroness is proposing, supported by the noble Baroness opposite, would actually make things worse, not better. If the public think that the asylum system is not under any democratic control and that decisions are taken by courts, not accountable people, the system will become less supported by the public—not more—and the whole thing will unravel. If you believe in an asylum system, which I do, and you want to strengthen it, you have to allow democratic institutions to reflect the world in which we now live, not the world in which the convention was drafted. If you do that and make it a convention that is able to be interpreted in the modern world, you strengthen it and make it more likely to succeed than doing the opposite.

For those reasons, it would strike at the primacy of Parliament to put this into law, but it would also do something that I think, fundamentally, both noble Baronesses would not support: it would weaken public support for the asylum system, which, in the end, they will come to regret.

--- Later in debate ---

[Lord Katz (Lab)]

To be clear, I was not talking about schemes that were set up for specific groups of people in specific situations, such as those from Hong Kong, Ukraine or Afghanistan, which the noble Lord mentioned. Indeed, I am absolutely clear as well that I do not disagree with him or the noble and learned Lord, Lord Garnier, on the principle that we would not want to leave that purely up to the courts rather than having it as part of legislation that has been proposed by Ministers and supported by both Houses of Parliament. I do not disagree with that, but the counter-counterfactual is also the case: if we excluded anyone who passed through any country in which they could reasonably stop, as a safe port of call, then we would not be taking anybody else in outside those established schemes. I do not think that is a reasonable, practical interpretation of the facts on the ground. For that reason, I am afraid that we will not be able to support Amendment 203I from the noble Lord, Lord Murray of Blidworth.

Before I finish, the noble Baroness, Lady Jones of Moulsecoomb, had the courtesy to say that she would not be able to be in her place until the end of this stage of the debate. She took the opportunity when speaking to rail against the increasing authoritarianism and blaming of refugees for all the ills of this country. I urge her, and indeed all noble Lords, if they think this is the case for this Government, to read carefully the words of our Prime Minister in his leader’s speech to the Labour Party conference. He set out a clear case, with humane and progressive reasons, for controlling borders. Indeed, I point to the words of our new Home Secretary, Shabana Mahmood. She is very clear that for people from, as she says, an ethnic minority, having a controlled system of borders is a good thing. There is nothing progressive about insecurity, whether insecurity of income, on our streets or on our borders. This Government were elected to tackle all three things, and we are determined to tackle them.

Given that, and given the time of night, I will conclude and ask the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Murray, not to press their amendments.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords for their engagement in this group, even though some engagement was with a rather broader brush than ideally one would like in Committee. The noble Baroness, Lady Jones, did not need to be self-deprecating about not being a lawyer, nor did other noble Lords need to damn my amendments with faint praise for being surprisingly “legally coherent”, even though they disagreed with the substance.

Some noble Lords were of course going to use these amendments for the big debate that rages in our countries at the moment around the refugee convention. However, to go to the detail of my amendments, neither of them would affect the big debate about whether we should be in or out of the refugee convention, or whether we should be in it but periodically ignore it. My amendments were attempting to achieve some coherence in our statute book, which I think is what a Committee stage on a borders Bill should be about.

There are anomalies in the way that we are half-pregnant with the refugee convention at the moment. The noble Lord, Lord Harper, did not quite believe me when I said that Section 2 of the 1993 Act already provides that the Immigration Rules may not conflict with the refugee convention and therefore courts may decide on that matter. I would like him to believe me or, if he does not, to look at the statute, because Section 2 of the 1993 Act is still in force. The noble Lord then said that if what I say is correct, we would not need my amendment, but of course the rules are just the rules. Underneath the Immigration Rules there are executive decisions and guidance, and above the rules there is legislation.

The noble Baroness, Lady Fox, rightly and understandably brought up the question of democracy, and other noble Lords engaged in the age-old debate about what democracy is and the relationship between elected parts of the constitution and the courts. There must be a relationship between the two because there is no democracy without the rule of law and arbitrary decisions could be made. The moment you legislate, you are passing some role to the judiciary. Some of us are happy with that and some of us do not want quite so much of that, but my amendments would expressly preserve parliamentary sovereignty as the overriding principle in our legislation, even under the Human Rights Act.

On Amendment 185, I am grateful to my noble friend the Minister for identifying the point I make about the anomaly in the current position. I am sorry to the noble Lord, Lord Sandhurst, because clearly I did not make myself clear enough in my opening remarks; he said that my amendment would be a licence for people to come with forged papers. The anomaly I refer to is that, as a refugee with forged papers, you get protection from prosecution now, but not as a refugee with no papers. That is the detail of what I was trying to achieve in these specific amendments, notwithstanding this very general debate, and I am grateful for that. For the moment at least, I beg leave to withdraw my amendment.

Amendment 184 withdrawn.