Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Clarke of Nottingham (Con)]

My Lords, I attended throughout the debate on the Bill yesterday and remained completely silent, and I arrived today intending to follow that good advice again, because I was actually unable to attend the earlier stages of the Bill at any scale and thought it would be quite wrong for me to join so late. But this is an important issue, which I have listened to very carefully, and I would quite like to register my views.

Yesterday, I voted with the Government against all the amendments to the Bill, because I think we have reached the stage where the opinion of the Commons should prevail, and I am not fundamentally against them trying this new innovation of offshoring illegal immigrants. I very much doubt that it will work, but I think they are allowed to have their way and see what happens. But I did vote yesterday in favour of the amendment from the noble Baroness, Lady Chakrabarti, and the more I listen to the debate, the more it seems to me that there are hugely important constitutional issues here. We are not getting a satisfactory reply, and we are not even getting, in the House of Commons, any very considered response from the Ministers available.

We all know that the present Government particularly dislike their important subjects being subject to judicial review: they were very upset when their Prorogation was overturned. Many other Governments have rather regretted it, but I think it is a vital protection. The Government’s view that what they are doing complies with our international legal obligations and with our own unwritten constitution—which has no force if the courts could not sometimes apply it—is very unwise. I think we should just defend that essential protection. The idea that the opinion of the Attorney-General, whoever he or she may be, in a Government of whatever complexion, if accepted by the Government, should not be a matter that goes any further or be a subject either for Parliament or for the courts, is sweeping and, with the greatest respect, slightly absurd, because no Attorney-General, however distinguished, has ever been infallible on these matters. So I do believe that, among the many important provisions of the Bill, this is the most important of all because of its wider constitutional questions.

I congratulate the parliamentary draftsmen on their ingenuity in producing terms that exclude the jurisdiction of the courts entirely on such matters. I am sure that, if it were done this time, we would find it happening with ever more regularity, in Bill after Bill presented by future Governments to this House. We should make one last attempt to stop that and I am afraid that I have not been persuaded to turn away from my support for the noble Baroness, Lady Chakrabarti, if she presses her amendment again.

[Lord Kerr of Kinlochard (CB)]

My Lords, it is a great challenge as well as a great honour to speak after the noble and learned Lord, Lord Clarke. I shall speak to Motion B1, which again seeks to bring the Bill into line with our international commitments. I believe there is a very important point of principle at stake here. There may actually be two points of principle—I am not sure about the second one—but the key one is pacta sunt servanda. The rules-based system works only if the rules are respected by all. We have just heard again—and we could hardly have heard more authoritatively —that this Bill is in breach of our commitments under the refugee convention.

The noble Lord, Lord Coaker, reminded us yesterday that UNHCR, to which we gave the job of supervising the interpretation of the convention, has confirmed yet again, authoritatively, in the strongest possible terms, that the Bill breaches that convention. We have heard from the Government Front Bench chop logic about how the Vienna Convention on the Law of Treaties allows conflicting national interpretations—but that really will not wash, as the noble Lord, Lord Pannick, has reminded us. We agreed to UNHCR’s supervising role: it is in the convention. We can complain from the stands when the referee rules our man offside, but we are not allowed to send on a substitute referee, and the referee’s ruling stands. So, it is not surprising that this House has voted three times to remove or improve Clause 11, which is where the breach of the convention is crystallised.

Yesterday, we heard from the Conservative Back Benches suggestions—I think it was just one suggestion—that all this was foreshadowed, and so legitimised, in the 2019 Conservative manifesto. Not so. I have checked. What the manifesto says is:

“We will continue to grant asylum and support to refugees fleeing persecution”—


and, later on:

“We will ensure, no matter where you come from, your rights will be respected and you will be treated with fairness and dignity.”


“Fairness” and “dignity” are fine words, but how can they be reconciled with depriving desperate people of their convention rights and their access to public funds, condemning them to destitution without even the miserable £5 a day subsistence that we pay to those stuck for years in the asylum process queue? Can we honestly say that those to whom we would in future be giving nothing at all would be being treated with fairness and dignity? No: Clause 11 is wrong in principle—pacta sunt servanda—and it would be shaming in practice.

My second point I put much more tentatively. Again, it is one the noble Lord, Lord Coaker, touched on yesterday. I put it tentatively because I have never served in the other place, but he has, with some distinction. It seems to me that this House is being treated with contempt. Of course, the elected Chamber must have the last word, but its view must surely be informed by an understanding of the considerations that led the revising Chamber to propose the changes it did. If I am right, are the Government, with all due respect, not cheating when they blandly assert no incompatibility the convention, when they make no attempt to refute—but simply ignore—this House’s demonstration that there is clear incompatibility, and when they allow minimal time to discuss an issue that is so important to our reputation as a law-abiding country?