Nationality and Borders Bill

Lord Judge Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

Moved by

[Lord Judge]

24: Before Clause 11, insert the following new Clause—
“Compliance with the Refugee Convention
Nothing in this Part authorises policies or decisions which do not comply with the United Kingdom’s obligations under the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees.”Member’s explanatory statement
This new Clause reflects the Government’s stated intention of compliance with the Refugee Convention and ensures Part 2 provisions are read subject to that international legal obligation.

[Lord Judge (CB)]

My Lords, the noble Baroness, Lady Chakrabarti, has asked me to open the batting on this amendment. It is a very short, important and simple amendment that addresses an unnecessary problem. The Minister has told us—no doubt on the basis of legal advice—that the Bill in its present form is compliant with the 1951 convention and the 1967 protocol. In being so, the argument is, it will fulfil the Government’s repeated assertions that this is precisely what the Government intend. Indeed, the Minister said so in terms in answer to my request in Committee, and I apologise to her because at that late time of night I had simply missed what she said, or at least I had not fully absorbed it. She said:

“We are absolutely firm … that nothing in the Bill undermines our convention obligations”.—[Official Report, 10/2/22; col. 1985.]


So what is this all about?

I mean no disrespect to the Minister, of course not, but her statement is no more than mere assertion—an assertion of opinion based on what the department’s legal advisers have told and advised her. Some of us—indeed, many of us—share the Government’s apparently absolute commitment to the convention, but we do not think that the Bill does. We believe that the Government are wrong. In our view, provision after provision in Part 2—the debate will happen later on—contravenes the convention. With many others, I shall support the later amendments that seek to achieve compliance, simply because we believe that the provisions are not compliant. Many of us are lawyers too; we have to address convention issues, but many of us are not lawyers and are simply reading what the proposed legislation actually says. We are convinced that, as things stand, the Bill contravenes the convention, and does so repeatedly.

This is not a lawyerly quibble: even as we speak the problems of refugees are being shown to us in Ukraine. Rather than a lawyerly quibble, what worries me is that the debate has gathered echoes of the Christmas pantomime: “Oh yes,” say the Government, “This Bill is compliant with the convention”, and I reply, on behalf of others, “Oh no it isn’t compliant”, and the Government say, “Oh yes it is”, and we say, “Oh no it isn’t”, and so it goes on. But this is not a pantomime; this is lawmaking. I suspect that I am not the only person here who thinks it is a very strange parliamentary debate in which honest views exchanged in this way overlook that this is a deeply sensitive debate about which there has been much human suffering. The level to which it has plunged in relation to the pantomime is really rather serious.

The only place where this “Oh yes it is, oh no it isn’t” exchange can be resolved is in the legislation itself. If it is accepted, this very simple amendment will achieve both the frequently declared intention of the Government and the objective of those of us who believe that the legislation fails to do so. Let me explain this in a few words.

In future cases, the court will be bound by the provisions of the legislation which we have enacted—by its statutory provisions, not by repeated government declarations of their intentions. Even an advocate of the immense standing of the noble Lord, Lord Pannick, who sought to rely, in court, on the repeated assertions of the declared intentions of the Government, was met with: “But that’s not what the legislation says”. Maybe the noble Lord, Lord Pannick, would have an answer to this, but even if he produced one, it would not be very effective.

If we are right—and I believe we—then we have this absurdity whereby the expressed intentions of the Government will be defeated by their own legislation. That is rather stark. If the expressions on behalf of the Government are genuine—and, although she is not here, I do not for one moment doubt the Minister’s personal good faith—we really are in cloud-cuckoo-land. The amendment will avoid that absurdity. There will be no uncertainty or equivocation. Any decision or policy in relation to the provisions of Part 2, whatever form they may eventually take, will be subject to the convention and protocol. This is on the unequivocal basis that it is a primary requirement of the legislation that any decision of the Home Office officials responsible, and any decision of the court considering those decisions under Part 2, must comply with them.

There is nothing new about a provision like this. I am indebted to the noble Lord, Lord Pannick, among others, for drawing my attention to Section 2 of the Asylum and Immigration Appeals Act 1993. We are right here in this very field. Nothing in the Immigration Rules shall lay down any practice which would be contrary to the convention. This is all that we are asking for here. Let us have that principle set out in the Bill in the form of this amendment.

[Viscount Hailsham (Con)]

My Lords, those who heard the Minister outline the position of the Government earlier today with regard to the plight of Ukrainians must have been dismayed by his response. None the less, I make no personal criticism of him at all.

Some of us have in mind the cavalier attitude of Mr Johnson to treaties that he recently signed, such as the Northern Ireland protocol. When I consider many of the suggestions which come out of the Home Office as to how to deter migrants from coming to this country, I have no confidence that this Government will always comply with the letter—far less the spirit—of the convention. I do not suppose that the new clause proposed by Amendment 24 will be a complete remedy. However, it is a very useful statement of an important principle, and I shall vote for it.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

In so far as the court has been told by Parliament that it can do that in the 1993 Act when it comes to the Immigration Rules, the court can do so. But, with the greatest respect, the courts interpret legislation; they are not there to go behind legislation with an autonomous meaning, so far as the courts are concerned, of what the refugee convention means. What the convention means is a matter for the member states, each interpreting it under the terms of the Vienna convention. With respect, it is not for the courts to second-guess Parliament’s interpretation of the UK’s obligations under the refugee convention.

[Lord Judge (CB)]

My Lords, faced with the problems to which Part 2 gives rise, we end up, on the basis of the Minister’s response, with the situation in which the court will look at provisions that we say contravene the convention and say, “Ah, Parliament has said that this provision must apply. Although it contravenes the convention, it must still be applied.” The court must do so, notwithstanding that the intention of the Government was that the provision should be compliant.

We are going around in circles. We are back to “Oh, yes, it is” and “Oh, no, it isn’t”, and that is no way for us to be on a measure of such crucial importance to many people suffering from the consequences of persecution, war, famine and so many things that afflict other nations and with which fortunately we are not afflicted. The House really ought to decide this. I ask the House to decide and tell us what its decision is.

Nationality and Borders Bill

Lord Judge Excerpts

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, while supporting a number of other Motions in this group, I beg to move Motion C1. The refugee convention is both a memorial to Hitler’s victims and an essential component of the post-1945 rules-based order. It offers protection as of right, not dependent on executive largesse to pick and choose which refugees should be saved and which continent or conflict these should be escaping from.

Renowned jurists in your Lordships’ House and beyond say that the Bill violates the convention; Ministers disagree. Our intention is to resolve the argument with a modest but vital insurance policy, ensuring, for the avoidance of doubt, that our courts will resolve disputes of interpretation and action compatibly with the convention.

As a public and constitutional lawyer, I take the primacy of the other place very seriously. This is neither a money nor a manifesto matter. Indeed, it gives effect to the Government’s emphatic policy of refugee convention compliance in times when this could not be more important. No reasonable Government should object. If your Lordships’ House were not to insist on its inclusion in the legislation, we would fail in our duty to protect the international rule of law.

[Lord Judge (CB)]

My Lords, I support the noble Baroness, Lady Chakrabarti. It is perfectly obvious that the Commons reasons tell us that it agrees that the legislation should be compliant with our international obligations. The Minister has just told us that everything that we do will be compliant with them. I regret that a number of us take the view that these provisions do not so comply. The decision will ultimately be made by a court. If the Commons is right, that is well and good—fine, there would be nothing to argue about—but, if we are right and the view of the Commons is wrong, the judge would be bound by this legislation to disapply the convention and the protocol. No one would be able to say, “Ah, but the Commons reasons say that it is compliant”. The Commons reasons will not be in the legislation.

It is very simple: we respectfully suggest that the Commons should be asked to think again and reflect on the consequences if the advice that it is receiving is wrong and the advice that we are suggesting is right, and to avoid the problem that its own expressed legislative intention—that the legislation should be compliant—will prove to be wrong. It is very simple—all doubt can be avoided by this amendment.

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

My Lords, my focus in this group will be on Motion C1 of the noble Baroness, Lady Chakrabarti, but I crave your Lordships’ indulgence to make one or two introductory remarks.

There could never be a good time for this particular Bill, but we can quite sure that there could hardly be a worse time. Make no mistake: the Bill will affect our standing on the world stage. It seems to me fairly obvious that the Bill was drafted with one particular major objective in mind: to make asylum seeking in the UK as unattractive as one can, to deter and discourage as many prospective refugees from coming here as one can and to refuse such claims as one can.

Of course I recognise that we have special refugee resettlement schemes for a number of substantial groups from around the world, from Syria, Afghanistan, Hong Kong and now—if, alas, somewhat delayed—Ukraine. I also recognise that there is a real and growing problem with a number of refugees—not, of course, those profiting from these schemes—so desperate as to risk their lives in the tragedies of crossing the channel. The draconian measures proposed here will not solve that problem and are not justified—as if aspiring refugees will henceforth say to each other, “Don’t bother coming to the UK. It is very unwelcoming and inhospitable. Just read this Bill”. I do not believe that for all the world and, frankly, I regard it as entirely fanciful. Unless noble Lords believe that this will solve the problem, we should continue to resist at least the most objectionable of the measures being promoted.

As to these, coming to Motion C1, my focus as an ex-judge who used to decide quite a lot of these asylum cases is above all on the legality of these proposals. I truly believe, as do many others, that several of these provisions flagrantly breach our obligations as interpreted by the UNHCR, the body responsible for that under the convention. That is why Motion C1 is all-important. Several later clauses in this part of the Bill purport to define or redefine our obligations under the convention. Of course, as my noble and learned friend Lord Judge says, the Government assert that they do so absolutely fairly and that they give effect to the convention, but that is not the view of a great number of respected bodies besides the UNHCR, such as the Bingham Centre, the Joint Committee on Human Rights and so forth.

On Report, we passed the amendment which Motion C1 is designed to replace and effectively reproduce. Having passed it, we did not go to the lengths of voting down the individual substantive clauses that redefine all the various ingredients of our obligations under the convention. Instead, we inserted that amendment and that is what we must do again. The Government’s objection to it is no more and no less than that it is not necessary, because they are going to comply with the convention anyway. I always think that the weakest grounds for objecting to any clause is that it is not necessary. I respectfully suggest that here it is crucial. I must explain why and noble Lords must forgive me as I do so.

On 28 February, during Report, the Minister then promoting the clause of the Bill, the noble Lord, Lord Wolfson, rightly said of the proposed new clause—the Baroness Chakrabarti clause, if I may call it that—that it

“potentially leaves the nature of obligations and terms under the convention open to the interpretation of the courts, removing the certainty that we are trying to achieve.”

I then intervened before the Minister sat down, because that rang a great red bell with me. I asked whether I rightly understood him as saying by that that, without this amending provision, the courts would be excluded from considering whether the Bill correctly implements the convention obligations. That he confirmed, rightly observing that the courts

“are not there to go behind legislation”.—[Official Report, 28/2/22; col. 609.]

As I suggest, we then wisely passed the amendment introducing the new clause by 218 to 140, a majority of 78.

We come then—I am anxious not to bore the House, but it is necessary to get this point across—to the Commons debate on the Lords amendments on 22 March. That makes depressing reading when you consider how cursorily—and, dare I suggest, superficially —our various amendments, passed after long, painstaking hours, were summarily rejected. Here, one finds that, in response to the suggestions of some Members that it would indeed be a good idea to leave the amendment in, because some of us were saying that the legislation would otherwise be in flagrant breach, the Minister said:

“I … make the crucial point that we have an independent judiciary in this country, and it is open to people to bring points of challenge where they believe that there are grounds for doing so.”


This the Minister described as a

“cornerstone … evolved over centuries”.—[Official Report, Commons, 22/3/22; col. 185.]

I do not for a moment suggest that the Minister was intentionally misleading the House, but the plain fact is that, as the noble Lord, Lord Wolfson, had rightly agreed at Report, Mr Pursglove was quite wrong to suggest that there was no need for this amendment because the courts would anyway deal with the challenge to the legislation based on suggested non-compliance. I repeat: the amendment is vital. The courts otherwise cannot go behind the definitive clauses in the Bill and would have to apply them, compliant or not. Without this clause, the lead argument is pre-empted and foreclosed, as the substantive clauses operate, if I may use the term, as ouster clauses of the courts’ jurisdiction. I urge your Lordships not to accept them.