Border Security, Asylum and Immigration Bill

Debate between Lord Harper and Baroness Chakrabarti

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.

Border Security, Asylum and Immigration Bill

Debate between Lord Harper and Baroness Chakrabarti

Committee stage
Thursday 10th July 2025 Lords Chamber

[Lord Alton of Liverpool (CB)]

I agree with the general thrust of the argument the noble Lord, Lord Harper, is putting to the Committee. He talked about getting the balance right, and that is really what I was arguing. However, we must not lose sight of the fact that these are children or young people, and we owe them a duty of care. We should get the balance right and not categorise them all as potential criminals or as having been involved in acts of terror or criminality. However, I recognise that there is that potential, and therefore, as he says, we have to get the balance right. We do not want a general disapplication of protections. We want to know that they are going to be used in a measured and sane way.

[Baroness Chakrabarti (Lab)]

As a supplement to that, I add that the balance is already there in the international standards, in things such as making sure there is an appropriate adult present. That does not harm any of the ambitions of the noble Lord. It is just what we would normally expect for minors.

[Lord Harper (Con)]

I am grateful for both of those interventions. In the clause as set out there are provisions to make sure there is an appropriate person who is not a representative of the government present. All I was saying is that it is important we do not lose sight of the purpose of this exercise, which is to enable people to come to Britain, where they are legally qualified to do so and do not present a risk to us. That is an important balance to strike.

I strongly support the thrust of the questions from the noble Lord, Lord Hogan-Howe, about the use to which this information should be put. In the modern world, with the way we can process data, my experience of how we use it is that it is done in a proportionate way. Checking information against databases protects people. Our security agencies are not interested in, and do not have the resources to spend their time worrying about, people who do not present a threat to the country. The big challenge is dealing with those who do. The noble Lord set out some very important questions, which I hope the Minister can deal with when he closes. I wanted to put that in context, so that the Minister covers it when he responds.