Nationality and Borders Bill

Lord Brown of Eaton-under-Heywood Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, in moving Motion B1 as an amendment to Motion B, I also support other amendments.

Extra-parliamentary events since your Lordships’ last consideration make anxious scrutiny today even more important. I refer of course to atrocities in Ukraine and the Maundy Thursday MoU with Rwanda, but also to the unsuccessful Home Office attempts to assert public interest immunity, or secrecy, in the High Court over parts of the subsequently withdrawn little boats push-back policy. Contrary to everything both Houses, voters and desperate refugees were led to believe, the Government always knew that there was no legal basis for repelling a boat containing souls declaring a wish to claim asylum.

The importance of such matters being justiciable in court is therefore clear. From her answers to yesterday’s PNQ, I am glad to say that I do not think the Minister disagrees with that. Nor, to his credit, did the Minister in the other place present any policy difference on that point. He repeatedly asserted ongoing intentions to comply with international law, and specifically to comply with the refugee convention and ECHR together.

I have listened—and indeed pre-empted the constitutional concerns that the Minister just set out—and redrafted to make the refugee convention protection in the Bill no more, but no less, than that already provided for in law by the ECHR, thus making the new Amendment 5D even more respectful of the primacy of the other place and reasonable than its predecessor amendments. I beg to move.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I rise to support Motion B1. “Nothing matters very much, and very little matters at all.” So said Lord Balfour of Balfour Declaration fame a century ago. But Lord Balfour was not then faced, as your Lordships now are, with a Bill which most—if not all—disinterested lawyers recognise that, first, without the amendment now proposed, would breach international law under the convention and, secondly, at the same time would nevertheless make unchallengeable the question of this legislation’s legality. Noble Lords should note that if the Bill passes without this provision, the legality of these provisions cannot even be raised before a court of law.

That will be the position unless we have the guts or—let me rephrase that—unless we are sufficiently alive to what surely is our constitutional duty as a revising Chamber to insist on the amendment to pass Motion B1. So, pace Lord Balfour, this really does matter very much.

I hope noble Lords will allow me another few words. I read again yesterday the disheartening, positively dispiriting House of Commons debate last week, which summarily rejected our amendments from the last round of ping-pong. The amendment originally in the names of the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, was dealt with even more dismissively and cursorily than the first time round. This time, there was no pretence that the courts could decide whether or not this new Bill will be convention-compliant. Previously, the Commons had been—as I accepted last time round—entirely inadvertently misled into thinking that the courts would have a say on it.

It is acknowledged on all sides that the Bill as it stands would overturn a quarter of a century of established English law as to the proper meaning of the convention. Of course, that is also the view of the UNHCR, which advises that we would be breaking international law by passing this legislation without such an amendment as now proposed. Therefore, it is now recognised that if the amendment fails to pass, the Bill will—the words can be used—foreclose or pre-empt the question as to the legality of these clauses. The clauses, in effect, would therefore operate as ouster clauses.

All the Minister in the other place said last week was:

“The Bill—I insist on this in the strongest terms—is compatible with all of our obligations under international law. Our position has not changed and we do not consider it necessary to put this on the face of this Bill.”—[Official Report, Commons, 20/4/22; col. 239.]


In other words, the Bill that we are now asked to approve without the amendment is simply proclaimed by the Government to be compliant. We are asked to accept the mere self-serving say-so—the assertion—that it is compliant, although, as I have said, it is unsupported, so far as I am aware, by any respected body of opinion charged to look into these things: the Joint Committee on Human Rights, the Bingham Centre, et cetera, and including, as I said, the UNHCR, which is charged specifically under the convention with the superintendence of the proper interpretation and application of the convention.

That is enough. I am sorry if this imperils our hopes of Prorogation this week, but I urge your Lordships to summon up the blood, stiffen the sinews—not, I think, Lord Balfour in that instance—and to continue to reject and challenge this further melancholy attempt to usurp our law.

[Lord Pannick (CB)]

My Lords, I too speak in favour of Motion B1, in the name of the noble Baroness, Lady Chakrabarti. I declare my interest as a practising barrister who sometimes acts in immigration cases.

As the noble and learned Lord has said, the overwhelming view of lawyers and interested, informed persons is that the provisions of the Bill breach this country’s obligations under the convention on refugees, which this country has signed. Ministers have repeatedly asserted to the contrary that they have failed to respond in any way to the reasoning of the critics.