Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I shall speak to Motion F2, which stands in my name. Perhaps I might make three preliminary points. First, I apologise to your Lordships for having come late to this debate. I was moved to table Motion F2 by the Government’s announced decision to enter into the agreement to offshore responsibility for asylum seekers to the Government of Rwanda; that is what has moved me to participate. Secondly, as alluded to by the right reverend Prelate the Bishop of Manchester, the substance of Motion F2 is in fact drawn from the Motion moved by the right reverend Prelate the Bishop of Durham, which successfully passed in this House on 4 April. Lastly, on a point alluded to by the right reverend Prelate, Motion F1, which he tabled, is of course to be considered before F2. I am sure that the right reverend Prelate, and certainly myself, will listen very carefully as to the sense of the House, as to whether there is support for either or both and, if so, in which order; that doubtless will influence us in deciding whether to test the opinion of the House.

The purpose of Motion F2 is a simple one: to ensure that the designation of a state as a safe country requires a resolution of both Houses of Parliament. As to the merits of the policy, I have very grave reservations about the cost and practicality of the Rwanda proposals. The experience of the Israeli Government, when they tried something rather similar, is not encouraging. I have great reservations about the legality of what is proposed. I accept of course that the noble Lord, Lord Pannick, has much greater expertise in this field than I do.

I note, of course, that Ministers have repeatedly said that the policy is consistent with international law and our obligations under the 1951 convention. Ministers repeatedly said that the policy of turning back the boats of asylum seekers was both legal and practical. However, it seems that, in the face of legal challenge as to both the practicality and the legality of the policy, the Home Office yesterday backed away from that position. I view the advice from this Home Office on these matters with very great caution.

Above all, my reservations about the Rwanda policy are based on my concerns as to its propriety. Can it be right to offload to somewhere else the responsibility for individuals who, for a time, have come into our jurisdiction? By doing so, we will have ensured that Ministers who are responsible for where they have gone are not accountable for the way in which they are treated, and I am finding myself extraordinarily uncomfortable with that concept. I might say, as someone who was here yesterday morning when the Minister had to answer a Private Notice Question on this matter, that I think she would agree the House was deeply concerned about that proposal.

However, if the Government wish to proceed with this policy, I can see no reason in principle why they should not seek as a precondition the express authority of Parliament. If I have correctly interpreted the Minister’s remarks in the debate on 4 April with regard to the 2004 Act, the principle of the affirmative resolution as a precondition to adding states to the list of safe countries has already been conceded. As I understand the 2004 Act—and it is not an easy one to understand—in respect of transfer to safe countries it provided for individual certification in respect of specific persons, whereas the present Bill is general in its application. But the principle of the affirmative resolution has been conceded; it is in legislation. So by all means have a debate about necessity but let us not have a debate about the principle, because that has been conceded.

The express parliamentary sanction for this policy is what Amendment F2 proposes—nothing more, nothing less. Before that consent will be given, the Government will have to satisfy Parliament that the criteria in paragraphs (a), (b) and (c) of new subsection (2B) contained in Schedule 3 are complied with.

The position of the Government as set out on the Order Paper is that it is not necessary to make the designation of a safe state by order dependent upon a statement as to costs. That was the position in the amendment moved by the right reverend Prelate the Bishop of Durham but it is not the position today, because the requirement for an assessment of costs has been removed from Amendment F2, which stands in my name.

In my view, it comes down to this: decisions of this kind, which affect the future and liberty of subjects of other countries but who have come here, is a matter that should be resolved by a vote of Parliament, not by the sole decision of the Executive. It is in furtherance of that view that I hope your Lordships, if circumstances allow, will support Amendment F2 in a Division.

[Lord Kerr of Kinlochard (CB)]

I shall speak to Motion C1, which takes us back to the refugee convention. The House may well think that, after the learned crescendo from the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Brown, there is nothing left to say on the subject—but I will try. The fact is that the biggest and most blatant breach of the convention in this Bill is in Clause 11; this brings in the two-class system, with the underclass not allowed convention rights or access to public funds because they did not come directly from the country where they feared persecution.

I have to say to the Minister that the safeguard of Clause 36 is insufficient. You cannot come directly from Asmara, Sana’a, Kabul or Kyiv—and in any case, of course, the convention does not allow for such segregation. When we signed up to it, we agreed that the only check made would be whether the asylum seeker’s fear of persecution was real and well founded. That is what we have always done. Among those asylum seekers arriving by irregular routes—I note that, in every one of the last 10 years, there have been asylum seekers coming from Rwanda—75% of those coming by irregular routes have been found by the courts to be genuine asylum seekers and have been granted asylum. Their fears were well founded, but this Bill would put all of them in the underclass, with no convention rights.

This House has twice, by large majorities, thought that wrong, and that we should continue to honour the convention deal. As the noble and learned Lord, Lord Brown, reminded us, noble and learned Lords have repeatedly challenged the Government to explain why they see no incompatibility between the Bill and the convention. The Government’s silence has been eloquent. In the other place, on 20 April, a junior Minister took two sentences to dismiss our views. Our principled objections to Clause 11 were not refuted, explained, or even mentioned.

My amendment today concedes the differentiation that the Government want, but diffuses it. They can have their two classes, provided that the distinction takes account of the fact that you cannot come directly from a warzone, and provided that those in the underclass are not made destitute, losing all their convention rights. Although the Government say that it is, this is not about small boats in the channel. Illegal, inhumane differentiation would have no deterrent effect because these are desperate people. The way to defeat the traffickers is to open safe routes and not to close the family reunion route as this Bill seeks to do.

I am no lawyer, as is probably obvious, but I have served my country for long enough to see how international reputations are built over time and destroyed overnight. Britain’s reputation on humanitarian issues is a national asset, which should not be lightly thrown away. And for what? As the noble Lord, Lord Paddick, keeps reminding us, asylum seekers represent 4%, or sometimes 5%, of the annual immigration flow.

Finally, I have to say to the Minister that the Vienna Convention on the Law of Treaties does not permit a free-for-all of conflicting national interpretations, and it is misleading to imply that it does. In this House, we tend to insist that the rules-based system and international law matter. On the internal market Bill, we insisted, and our insistence carried the day. I think we must again insist that the other place finally address the big issue—better late than never—and think again about Clause 11. So, I am afraid, it is once more unto the breach, dear friends.

--- Later in debate ---

Moved by

[Lord Kerr of Kinlochard]

At end insert “and do propose Amendments 6D, 6E and 6F in lieu—

6D: Page 13, line 44, at end insert—
“(2A) A refugee is not to be regarded as failing to comply with the requirement in subsection (2)(a) if, in coming to the United Kingdom, they have stopped in another country outside the United Kingdom with the intention that the stopover in the intermediate country was to be a brief transit on the way to the United Kingdom.
(2B) A refugee is not to be regarded as failing to comply with the requirement in subsection (2)(b) if they had good cause to delay the point at which they presented themselves to the authorities.”

6F: Page 14, line 32, at end insert—
“(8A) In accordance with section 2 of the Asylum and Immigration Appeals Act 1993, no such immigration rules shall lay down any practice or differentiate in any way which would be contrary to the Refugee Convention.
(8B) Immigration rules implementing this provision must take due account of the best interests of children and the fundamental right to family unity in all cases.””

[Lord Kerr of Kinlochard (CB)]

I beg to move Motion C1.