Border Security, Asylum and Immigration Bill

Baroness Fox of Buckley Excerpts

Committee stage
Monday 13th October 2025 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, the amendment is legally coherent and that is very much in its favour. It contains a tacit acknowledgment of the dualist system that we have in this country. That means that we are bound by domestic law and bound by international law only in so far as it has it has been incorporated in domestic law. The noble Baroness is right that there are references to the refugee convention in domestic law—for example, Section 2 of the Asylum and Immigration Appeals Act 1993.

The main provision of the refugee convention that attracts attention is Article 33, the non-refoulement provision. Does membership of the refugee convention require a particular response from the courts of this country? There is reference to it in the Supreme Court decision on the Rwanda policy, although it was not entirely clear, to me at least, what effect it had on the outcome of the case. The much greater part of the judgment was taken up with the review of the relevant articles of the ECHR, which are incorporated into our law by the Human Rights Act.

What is quite clear is that it is always open to Parliament to exclude references to international law from domestic legislation. In which case, any obligations that this country has under the refugee convention exist only as a matter of international law. I say that without meaning to diminish the importance of international law; we should comply with international obligations as far as possible. However, there is an increasingly recognised view that the 1951 convention was of its time and that it is necessary to look again at its application in the light of the challenges that immigration now presents not just to this country but to other European countries and to countries such as Australia that have signed up to the convention.

If the leaked memo reported in Saturday’s Times is correct, the Attorney-General himself acknowledges that the time may have come to look again at the convention and its application to the immigration and asylum system. It is important to stress that no body or institution is empowered to determine authoritatively what the convention means. This distinguishes it from the ECHR, where the European Court of Human Rights performs that task.

My view is that it would be best to remain a member of the refugee convention but to remove any references to it from domestic legislation, so that Parliament can determine the proper policy in relation to immigration and asylum without fearing interpretation of that legislation by reference to the convention. This amendment does precisely the opposite of that, which is the reason that I oppose it, despite its legal coherence. I anticipate that the Government may not altogether be inclined to accept the amendment either, because to do so would hard-wire the convention, with all its imprecision, into our domestic law. This would create just the sort of difficulties that we have had with the European Convention on Human Rights and the obligation, under Section 2 of the Human Rights Act, to take it into account.

It should be possible to remain signed up to the refugee convention without unduly or unnecessarily hampering our obligations. Australia has managed this, as I said. I agree with the noble Lord, Lord Wolfson, in his 188-page analysis of the various issues that are thrown up by the convention. He is right that we may have to think again, even without this amendment, if our courts interpret domestic law in a way that appears to incorporate international law. Important though it is, it confuses the issue. Parliament ought to be sovereign in these matters and to decide the correct policy.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I really support the comments made by the noble Lord, Lord Faulks, who very articulately and with legal adeptness explained some of my reservations. I will raise just a few other points.

I am particularly opposed to Amendment 184, because it would further institutionalise—this is even its title—the primacy of the refugee convention. I think that emphasising that primacy undermines democracy.

I listened carefully to the expansive debate on refugee family reunion in the first group. One of the most insightful comments came in the very moving contribution from the noble Baroness, Lady Neuberger, about her family’s experience of refugees fleeing Nazi antisemitism. It was a reminder of that historic period, but also of the importance of historic specificity. This matters today—which is such a joyous day, by the way, with the return home of the hostages; I spent most of the morning crying, but with joy in this instance. Jew hatred is alive today—it is still happening—but it is not the Nazis or the Second World War. This is a completely different version; something else is happening.

That issue of history is one of the reasons why I wanted to speak on this group. I have long argued that the refugee convention is long past its historic sell-by date and that it is time for us to consider leaving it or maybe amending it in some way, as has been discussed. So I am glad that the noble Baroness, Lady Chakrabarti, has given us a chance to consider the issue.

Of course, when the refugee convention was established in 1951, it had noble aims. It was designed for a world coming to terms with the aftermath of a world war and mass displacement. But if you think about the way that the term “refugee” is used today, you will find that it has become so expansive and flexible that it has been used recently to describe a trans-identifying burglar from Algeria and a Zimbabwean paedophile, both of whom say that they are entitled to the same protection as women and children fleeing a war zone.

Earlier today the noble Baroness, Lady Hamwee, said that language and words matter, and I agree. In this instance, “refugee” has become completely corrupted and confused. So we urgently need to review terms such as “refugee”, as interpreted by today’s reading of the refugee convention, because these stoke resentment among the public and actually harm the interests of those who might legitimately be refugees in need of protection. It bundles up a whole lot of things.

The history of the convention means that it is not the rule of law—an act of God that cannot be challenged at any time—because it has an interesting history. Established in 1951, as I say, it was a practical solution to the existence of hundreds of thousands of people in Europe who had still not been resettled after the Second World War. It is interesting that, when it was introduced, the convention applied only to refugees in Europe, and only in respect of those who had acquired that status due to the events that happened before 1951. The convention has therefore changed because it did not assist with refugees who fled Hungary in 1956. That did not mean that people were not humane in 1956; the convention was not something that could be used—as is regularly done—just to say, “Where’s your humanity? Don’t you care about refugees?” It was very specific.

It was only in 1967 that the regional and temporal limits of the refugee convention were lifted to give rights to refugees around the world. That was motivated, as many historians have noted, by the Cold War. It was used to say that all refugees are welcome in the West and to show the superiority of democracy over communism. Actually, rather a small number of refugees came on that basis.

With the fall of the Berlin Wall in 1989, the refugee convention seemed to lose its raison d’être. It is interesting that, in 2004, Tony Blair, no less, noted how the convention,

“first introduced in 1951, at a time when the cold war and lack of cheap air travel made long-range migration far more difficult than it has become today, has started to show its age”.

Following Blair’s lead, in the 2005 general election the Conservative Party had a manifesto commitment to withdraw from the convention. There have been discussions about whether it is showing its age. I would say that the refugee convention is not just showing its age but has outlived its usefulness and shackles democracy.

My concern about this amendment is that it tries to do something that is already a problem. We spend all our time in this Chamber scrutinising pieces of law. If we are then told, “No, you can’t do that because of the refugee convention”—or if we pass laws and they are usurped by the refugee convention through the courts—what is the point of democracy and the decision-making here if they are so undermined by international treaties? The refugee convention therefore betrays democracy and the public.

If we in this place get frustrated that laws are made and conventions are then used to undermine those laws, can noble Lords imagine what it is like to be a voter? I know it has been a while for a lot of us, but it is worth remembering that voters’ frustration is even more palpable. This does not help refugees; it is a way of bypassing democratic accountability and is a hindrance, rather than a help, to refugees and the British public.