Nationality and Borders Bill

Debate between Lord Anderson of Ipswich and Lord Hodgson of Astley Abbotts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I struggle with some of the dilemmas presented by Clauses 29 to 37, for very much the reasons given by the noble and learned Lord, Lord Clarke of Nottingham, in his frank and powerful speech of 1 February on Clause 11. There are, after all, circumstances in which Parliament may legitimately set out its interpretation of treaty provisions and overrule decisions of our courts. There is also a desire, which others on these Benches may share, to give the Government the benefit of the doubt if they can show us why their proposals are not in breach of international law.

The problem I have in that regard is that we have seen impressive formulations of the case against these clauses: for example, from the UNHCR, in the opinion of Raza Husain QC, and in the briefing from the Bingham Centre to which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has referred. What we—or at any rate I—have not seen is how the Government seek to justify these clauses against the requirements of the refugee convention, as interpreted by the Vienna Convention on the Law of Treaties.

For example, under Article 31.3 of the Vienna convention the interpretation of a treaty can legitimately be influenced by state practice. Do the Government rely on the statute or case law of other states as support for the interpretations that they ask us to enact? If so, which states and in relation to which clauses of the Bill? Do they say, in relation to each relevant provision of the refugee convention, that those practices establish

“the agreement of the parties regarding its interpretation”

within the meaning of Article 31.3(b) of the Vienna convention?

As a second example, the United Kingdom made various reservations and declarations at the time it ratified the refugee convention. Do the Government contend that these clauses, or some of them, constitute de facto reservations in so far as they purport to constrain, as a matter of law, the interpretation or application of the refugee convention? In that case, what are their arguments for their timeliness and permissibility and, if they are permissible, their compatibility with the object and purpose of the convention?

I appreciate, of course, that there are conventions regarding the publication of law officers’ legal advice, but surely a way can be found of conveying to your Lordships, and to the public, a detailed and authoritative explanation of the Government’s legal position in more detail than can be explained, however lucidly, by a very lucid Minister in this Chamber. Whether such advice will be enough to allay the concerns of those of your Lordships who take seriously our obligations under international law I cannot say, but at least these clauses will not be lost by default, which I suspect may be the alternative if we are left in the dark.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, if I may intervene briefly, I am not an expert in this field but once the lawyers start quoting clauses, sub-clauses and those sorts of things, one has to be careful. This is obviously an important point, and I was really taken by the speech of the noble Lord, Lord Alton. He has spent a lot of time on this and one has to respect the work he has done. He talked about us unscrambling. When my noble friend comes to wind up, can he say whether we are unscrambling or simplifying?

Some of the way this seems to read is that we are making a thing clear for everybody. Therefore, far from undermining what we stand for, we are making it clearer for everybody, and as such for the people of this country, to understand what the Government are trying to do, and thereby increase the degree of informed consent—a concept about which I am very keen. I understand the complications of the legal interpretations put forward by many noble and noble and learned Lords, but I would like my noble friend to tell me: are we simplifying or unscrambling? If we are simplifying, that seems a desirable thing to do.