Immigration Bill

Lord Carlile of Berriew Excerpts

Monday 21st March 2016 Lords Chamber

[Viscount Hailsham]

My Lords, I find myself in great sympathy with what the noble Lord, Lord Pannick, has just said. If this were a general debate about genocide, I would find myself in total agreement with what has been said by all noble Lords who have contributed; there have been some very remarkable speeches. But it is not. We are actually talking about legislation and we have to ask ourselves the serious question: does what this House is contemplating by way of legislation make legal sense? It is there that I part from those who are advocating this amendment.

I want to concentrate briefly on subsection (1) of the proposed new clause because there are three points that I would like to make about it. First, we are not in the business of talking about groups, although the noble Baroness, Lady Nicholson, did talk about groups. The question is whether an individual belongs to a group, and that involves adjudication, a decision. It is made in the context where there is an enormous amount of scope, and motive too, for misrepresentation. It is sometimes very difficult to tell the difference between a Tajik and an Uzbek or, for that matter, between an Alawite, a Sunni and a Shia. They may all have reason for misrepresenting their status. To put the test in the way that it is expressed in subsection (1) will open up an enormous amount of judicial argument.

The second point is slightly different. In the second line of the subsection is the phrase “in the place”—not in the country, but in the place. The truth is that in a country like Iraq, a Shia may be unsafe in a particular area but can move to another area where he or she is safe. Simply to have the test of whether the conditions exist in the place where a person for a moment in time happens to be resident is, I think, to distort what one really seeks to do.

The last point I want to make is that subsection (1) creates presumptions of entitlement. I believe that presumption should depend on individual adjudication, not on class presumption. This amendment would create a class presumption with which I am bound to say I am extremely uneasy. Therefore while I have enormous sympathy with the points that have been made, and I do not wish in any way to undermine the fervour with which people have spoken, we are in the business of asking ourselves whether particular pieces of legislation which we are being asked to authorise make sense.

[Lord Carlile of Berriew (LD)]

My Lords, it gives me great pleasure to applaud the noble Lord, Lord Alton, for bringing this amendment back to your Lordships’ House in an improved form. I do not want this to turn into a lawyers’ fest or to give your Lordships too much pleasure in knowing that the lawyers may disagree about the matters that have just been referred to, but I would remind the House that the noble Lord, Lord Alton, told us earlier that the amendment followed interventions at an earlier stage in the passage of this Bill by the noble and learned Lords, Lord Hope of Craighead and Lord Judge. Both are former Supreme Court judges, one the former Lord Chief Justice and the other the former Deputy President of the Supreme Court.

I do not disagree in principle with what has just been said by the noble Lord, Lord Pannick, and the noble Viscount. However, we must remember that the power to pass law rests upon Parliament. This is not a court where we act upon precedent. If Parliament wishes to include a judge’s decision in the determination of a matter of law, it is open to Parliament to do so. Let us not pretend that the Government—particularly this Government—do not send for the judges when they are in an awkward position in any event. We know that that is all too common and currently being done with the most controversial Bill before these Houses: the Investigatory Powers Bill.

I therefore suggest to your Lordships that while we of course listened with enormous respect to the two noble Lords who just spoke, nevertheless what they say does not negate the merits of the debate that we have been hearing. Indeed, we have heard some very eloquent speeches dealing with those merits: for example, the speeches of the noble Lord, Lord Forsyth, and of the noble Baroness, Lady Kennedy of The Shaws, who had an excellent article in the Guardian this morning, setting out in principle what everybody on my side of the debate might say.

I do not want to give a catalogue of the events that give rise to this debate; we heard from my noble friend Lady Nicholson in some detail. I applaud, as I am sure we all do, the extraordinary work that she has done with the charity AMAR, of which she is the chairman and founder, which has helped so many, particularly young women, affected by genocide, especially in the Middle East. She deserves great praise for that. Indeed, she and the noble Baroness, Lady Cox, are responsible for bringing these very important and painful issues to the attention not just of the House, but of the country much more widely than the political class represented here and in another place.

I simply say this to your Lordships: there is no more arrogant crime than the crime of genocide. Genocide defies all decent religious standards, albeit sometimes in the heretical pretence of religion. Genocide offends all decent secular standards. I know of no secular state that would allow any of the horrendous practices described in the debate. Genocide rejects the proposition that there should be even any limits to the actions and cruelties committed in war. Genocide diminishes the dignity of the human race, quite simply. Surely Parliaments such as this should recognise the suffering of victims of genocide, and not merely by wringing our hands with rhetoric about those victims. Where else have they to turn to if not to Parliaments and to Governments in countries such as ours? Why are we not making the sorts of declarations that have been made, as I understand it, by the French Government and very clearly by the American Secretary of State?

The designation of crimes as “genocide” sends out a clear message, and it is not an unimportant one: it is a deterrent. Designation of genocide sends out the message that those who commit the act and are identified will one day be brought before international courts and punished for their crimes against the rest of the human race. Designation of genocide by Governments such as ours also sends out a warning to those who might be inclined to commit genocide that they will be pursued to the end of the days—to the end of their lives if necessary, when they are old and hiding from their responsibilities, as happened, for example, with the Nazi genocide.

I heard earlier in the evening—I hope that I am wrong—that Her Majesty’s Official Opposition’s position was to sit on its hands in this debate. I hope that that shameful proposition is not correct. I hope that we will not have a situation in which the party that introduced the Human Rights Act 1998 into our law will chicken out of an official vote on this amendment.

We carry out a great responsibility this evening. I hope that we will do so in a spirit that recognises the challenge that genocide presents to humankind.

[Baroness Berridge (Con)]

My Lords, the issues that the tablers of this amendment have raised are so important and urgent that I am prompted to speak for the first time on the Bill. Everyone’s hearts this evening are on the same page in your Lordships’ House. Our hearts are weary of seeing the suffering on our news bulletins and we want solutions urgently. I hold the noble Lord, Lord Alton, and the noble Baroness, Lady Cox, in the highest regard, not only for their lobbying on behalf of vulnerable people, but for often placing themselves in harm’s way as they do so. They are entirely right that certain groups of people that we should have been focused on more clearly have been lost from view. However, the mechanism proposed this evening will, sadly, not ensure that the most vulnerable people are helped and with huge regret I cannot support the amendment.

First, the amendment runs the risk of taking too long to help these people, as setting up a judicial process with rules of court, et cetera, will take months. Help for these people is needed now, help that can be provided, as I will outline, through the Syrian vulnerable people scheme. As I understand the amendment, this would not just be declaring acts of genocide; what the High Court would be declaring would be a policy of genocide in a particular situation. Since the Second World War, only two situations have merited that declaration: Rwanda and the Srebrenica incident within the Balkans conflict. This is recognised as the crime above all crimes, to be kept special, to be kept unique and with a particular connotation.

Although we can prosecute genocide anywhere in the world, the case of Eichmann, which many noble Lords will remember, remains of its era and we have seen the development of international tribunals to try this particular crime. This amendment draws the declaration of a policy of genocide, which it took the Rwanda tribunal four years to come to, into a domestic court. That opens the way for other domestic courts to do the same and to disagree with us. It risks diluting this crime and we could end up with one domestic courts saying, “We think this is genocide”, and another saying, “This is not genocide”. The risk of politicising and putting into foreign affairs terms a policy such as genocide is grave.

I watched with care the full announcement by Secretary of State Kerry, most of which asserts the supremacy of the judicial process. I was disappointed that such a campaign in America has led, in fact, to so little. They have promised a bit more aid and that they will do some investigation of the evidence. I would like Her Majesty’s Government to deliver more than that.

Perhaps the most important reason for not supporting this amendment is that it will not only apply only to Iraq and Syria. It is, perhaps, most likely to apply, first and foremost, in Sudan, where al-Bashir stands ready to be tried at the International Criminal Court—if they could get him there—for crimes against humanity, war crimes and the crime of genocide. This amendment would apply to people in other countries; people might learn through social media that the UK has said that they are victims of genocide and can get asylum here and they might leave to come here. As I say, Sudan might be the first case and a determination of that nature by our courts could cause vast numbers of people to flee, not knowing whether they are number four of the 5,000 we have said we are taking or number 4,555. They will not know that; they will leave. This would be particularly dangerous today because their route is through Libya, through IS-controlled territory where they risk being killed and a much more perilous sea journey across the Mediterranean from Libya to Italy.

I have sat before British diaspora who are desperate for their adult sons to remain in those countries and not to travel. Often, they listen to IS footage in Libya on the internet and see what could happen to their relatives if there was any incentive for them to move. Turkey is closing down as a route and the criminal gangs are looking for a different market, or several different markets.

The movers of the amendment are right in principle. I want to return to that. I hope that I can offer a way forward. Will my noble friend the Minister please look urgently to review the criteria of the Syrian vulnerable people scheme, as Iraqi people are the victims of probably the worst postcode lottery? A century ago, Britain was involved in setting the border between Iraq and Syria, which IS just wiped out. So if you can satisfy the vulnerable persons criteria and are a refugee but happen to live on the wrong side of the border—if you are an Iraqi—you are not eligible for the scheme. If you live hundreds of miles away or hundreds of yards away but you happen to be Syrian, you can get safe passage to the UK. As a matter of utmost urgency will my noble friend the Minister look to expand the eligibility for the scheme so that we can offer protection virtually immediately to the Iraqis who so desperately need it? Will he also please ensure that the relevant numbers are raised to accommodate the extra people?

--- Later in debate ---

[Lord Rosser]

My Lords, no one can fail to be concerned about and moved by the appalling position of those to whom this amendment relates. There is a need to see what more can be done to help those fleeing violence and persecution and to increase safe and legal routes for refugees. We all have sympathy with what lies behind this amendment, particularly with regard to the appalling actions of ISIS—Daesh—against Yazidi women. The amendment as it stands is in our view unworkable, but we would be willing to work with the Government and others in the House to develop a scheme to present at Third Reading for these women and others persecuted on grounds of religion.

Anyone coming under the conditions referred to in proposed new subsection (1) who is already in the United Kingdom should already be able to claim asylum under the existing law and definition of a refugee. However, the amendment appears problematic in a couple of areas. It places responsibility for declaring that a genocide is taking place—and, with it, a presumption that the conditions for asylum in the UK have been met—with the High Court rather than with an international body, which is a departure from existing practice. We are not convinced that this power should rest with domestic courts.

The amendment also allows people to apply for asylum outside the UK, which is again a significant departure from existing law and would allow unknown numbers to apply as, as the amendment sets out, there should be no discrimination in dealing with such applications based on,

“national, ethnical, racial or religious group”.

As a lesser point, there also needs to be more clarity about how the process set out in the amendment would work in practice, how applications would be processed, by whom and where.

While we all want to do more for vulnerable people fleeing persecution and genocide—

[Lord Carlile of Berriew]

The noble Lord is telling us that the Labour Party agrees in principle with the feelings behind the amendment of the noble Lord, Lord Alton. Is it not a bit supine for the Labour Party to say that but not put forward an improved amendment of its own if it really seeks to say what we have just heard with full integrity?

[Lord Rosser]

I do not share the noble Lord’s view; I am setting out our view of the amendment and have referred to two specific issues, which do not seem to me unimportant. I can only note that he holds a different view.

While we all want to do more for vulnerable people fleeing persecution and genocide—such a debate needs to take place—we are unconvinced that the amendment as drafted represents the best way to do that. It entails a significant change in practice and procedure, and there needs to be much greater consideration than, inevitably, there has been of the practicalities and impact of what is being proposed. For these reasons, if the mover, having heard the Government’s response, decides to test the opinion of the House, we will not be able to lend our support.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, no one could but be moved by the strength of feeling and concern that has been expressed in this House with regard to events in the Middle East. Several of your Lordships have eloquently articulated the terrible threats that Daesh or ISIS poses to the populations of the Middle East. Who could gainsay the ghastly evidence of some of the events that have been reported?

All of us want to do everything that we can to support the victims of such terrible violence. All of us want to alleviate the suffering experienced in Syria and Iraq at present. But to do that, our primary priority must be to secure an end to the conflict in Syria and Iraq, in order that people can return to their communities and their lives. That is what this Government have been committed to achieving, and I shall not repeat the points made earlier about the steps taken in that regard.

I urge your Lordships to read the amendment to see what, on the face of it, it is intended to do. The noble Lord, Lord Alton, finished by saying that the intention was to bring those individuals responsible to justice. That, with respect, is not the objective of the amendment. Indirectly, it might achieve that, but let us remember to emphasise individuals. We cannot bring Daesh to justice; we must identify the individuals within ISIS and Daesh who have been responsible for these terrible crimes. That is not the objective of this amendment at all.

The amendment deals with three matters. Essentially, proposed new subsection (1) is a presumption that if a person is a member of a certain grouping they have been a victim of genocide. Secondly, there is an adjudication and, thirdly, there is an application process by which an individual who is a member of a group that has been subject to genocide can secure asylum in the United Kingdom but, more importantly, can secure that by means of an application form outside the United Kingdom—a unique and quite unprecedented step in the context of refugee law. Indeed, I would respectfully adopt the observation of the noble Lord, Lord Pannick, when he said that he had much more difficulty with the substance of the amendment. With respect, so have we, because if we look at the substance of the amendment, we have to consider the background to what is being addressed.

There are two entirely distinct conventions here. There is what is shortly termed the genocide convention, which is concerned with the identification and prosecution of those guilty of the terrible crime of genocide. Then there is the refugee convention, which is concerned with the circumstances in which a country such as the United Kingdom has an obligation to those who are defined—

[Lord Carlile of Berriew]

My Lords—

[Lord Keen of Elie]

I shall finish the sentence, if I may—to those who are defined as refugees. The two are entirely distinct. Under—

[Lord Carlile of Berriew]

The noble and learned Lord said that he was going to give way at the end of the sentence. I detected a full stop. With all his legal experience, he surely knows that numerous applications relating to residence in the United Kingdom are made from outside the United Kingdom. For example, visas are applied for outside the United Kingdom. What is so unique about extending that process?

[Lord Keen of Elie]

I am obliged to the noble Lord. I was aware of that—and, of course, the distinction lies in international law. Our obligation towards asylum seekers arises under the refugee convention, and it is in accordance with that that we deal with these applications. I shall elaborate on why that poses such severe problems in the context of the amendment.

Under our own Immigration Rules we have provision for those who enjoy refugee status, which includes those who are the victims or potential victims of genocide. But of course it also extends beyond that category to those who are the victims or potential victims of persecution—for example, political persecution, which would not be covered by this provision. If we look at the provisions of the refugee convention, we find it explicitly stated at Article 3 that in dealing with applications for asylum there will be no discrimination on grounds such as nationality, ethnicity or religion. Indeed, that is reinforced by Article 14 of the European Convention on Human Rights.

While I understand the desire of the noble Lord, Lord Forsyth of Drumlean, to see some help extended to the Christians in Syria, and the Yazidis as well, the reality is that if we had this provision in law we would have no right to discriminate between Christians and Yazidis. We know that in fact the activities of ISIS and Daesh in Syria and Iraq are directed not just at the Christian or Yazidi communities but at the Shia Muslim communities within these countries, at the Kurds and even at the Alawites. All those would also be in a position of complaining that they belonged to a group that was potentially the subject of genocidal acts, torture or violence.