Illegal Migration Bill

Lord Wolfson of Tredegar Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Patten of Barnes (Con)]

I apologise for not taking part in the Second Reading debate on this Bill, but I have made amends by sitting through the entire debate this afternoon. I am sure that, when I reflect on the last few hours, I will realise how much I learned. There are two points I would like to make.

First, I am surprised that, despite the intervention of the right reverend Prelate—and despite, I am sure, his prayers as well—some Members of the House continue to conflate the issue of what was once disgracefully called by a Minister the invasion across the English Channel with the general issue of immigration. We can deal with the issue of immigration—and there is nothing wrong with that at all—best of all by having a serious labour market policy. That is the only way we will deal with immigration that does not set one party against another in a sort of auction of prejudice. I hope we will stop making it more difficult to discuss this Bill by talking about it as though it were a key to deal with the issue of immigration.

Secondly, I was surprised to find a spokesman for the People’s Republic of China. Why did the Chinese say they were perfectly at liberty to break the joint declaration? They said it was a historic agreement; it was out of time; it was like a packet of peanuts that had passed its sell-by date. So, I am never going to believe that, simply because we signed something 10, 20, 40 or 50 years ago, it does not have any relevance today. But I am looking forward to hearing from the Minister whether or not he thinks this Bill is in line with international obligations, and I am looking forward, I suppose, to the contribution from the Chinese ambassador in the next debate.

[Lord Wolfson of Tredegar (Con)]

My Lords, like my noble friend Lord Patten, I have sat through all of this debate. I rise because my name—or, at least, a name close to mine—was mentioned by the noble Lord, Lord Hacking, at one point. The reason I rise with a little diffidence is that I have to catch a flight later this evening. I anticipate that I will be able to stay to the end of this debate and still make the plane, but if that turns out not to be right, I hope noble Lords will forgive me and not think that I mean any discourtesy to this Committee or those sitting in it today. I hope everybody will appreciate that is the last thing I would want.

Unlike other speakers, I cannot disavow being a lawyer. For better or worse, I am a lawyer. Therefore, let me make two short points at the outset. First, international law obligations are important. We ought to abide by them, as the noble and learned Lord, Lord Etherton, said. I would expect Parliament not to legislate contrary to a treaty obligation unless there were absolutely compelling reasons to do so and, in those circumstances, to make that very clear. Otherwise, we should always be legislating consistently with our international law obligations.

Secondly, as I made clear from the Front Bench on a number of occasions, I support our membership of the European Convention on Human Rights. I do not always agree with the decisions of the court—I do not always agree with the decisions of our domestic courts either—but that is a separate matter. I support us being in the convention.

I will not refer to all these amendments. I start with Amendments 3 and 148, which go together. Essentially, they refer to the statement that the Secretary of State must set out as to whether the Bill is compatible with the convention rights. Section 19(1)(a) and Section 19(1)(b) were put into the Human Rights Act as a political point. The noble and learned Lord, Lord Irvine of Lairg, made this absolutely clear when the Bill was going through this House. It was to keep people’s minds focused on whether the Government could say at that time that the Bill was compliant. It was never intended to be a legal bar. There is precedent in this House. The Communications Bill is a precedent for the Government being unable to state that the Bill was compatible with convention rights. When they were challenged, the challenges failed.

One cannot draw a line between being unable to make a Section 19(1)(a) statement and the Bill being in breach of convention rights. Section 19(1)(b) is very carefully drafted, and I listened carefully to the noble Lord, Lord Carlile of Berriew, who asked what it means. That statement is in the form that it is in the Bill because those are the words in Section 19(1)(b). That is what Parliament told the Minister to say. The structure is that if the Minister cannot make a Section 19(1)(a) statement, he or she makes a Section 19(1)(b) statement. Rather oddly, all that Section 19(1)(b) says is, “I can’t make Section 19(1)(a)”. Is that sensible? With respect, I do not think it is. If it were up to me, I would take out Section 19(1)(a) and Section 19(1)(b), which add more distraction than assistance. They were put in for political rather than legal reasons, and that is why the Section 19(1)(b) statement is in the form that it is in.

[Lord Hope of Craighead (CB)]

I recall saying once in the Appellate Committee that the courts were not bound by the statement—it has no legal effect.

[Lord Wolfson of Tredegar (Con)]

The noble and learned Lord is absolutely right; it has no legal effect. Can I put this another way? The Minister can make a Section 19(1)(b) statement and the court can find that the Act is compatible. The Minister can make Section 19(1)(a) statement and the court can find that it is not.

[Lord Carlile of Berriew (CB)]

Does the noble Lord not agree that the Section 19(1)(b) statement on this Bill is very different from the Section 19(1)(b) statement on the Communications Bill? I am sure that he has looked at it. Secretary of State Tessa Jowell made the following statement:

“I am unable (but only because of Clause 309) to make a statement that, in my view, the provisions of the Communications Bill are compatible with the Convention rights”.


By making that statement, Tessa Jowell made it clear that in a massive Bill there was only one clause that she could not make such a statement about. In effect, she stated that everything apart from Clause 309 was compliant with the Human Rights Act. That is how it was understood; we can all read the debates. Is it not incumbent upon the Government, when they make a statement as vague as that on this Bill, to explain what is and what is not compatible with the Human Rights Act?

[Lord Wolfson of Tredegar (Con)]

The noble Lord is making a political point. It may be good politics or bad politics, but whether the Government want to do that or not, my focus is on Section 19 of the Human Rights Act, which is very clear:

“A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading … (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights … or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill”.


We could have a nice debate about whether the statement in the Communications Act 2003 was consistent with Section 19, but that is not my point. My point today is simply that we cannot legitimately criticise the Minister for making precisely the statement that Parliament told him to make in Section (19)(1)(b) if he cannot make a Section 19(1)(a) statement.

[Baroness Chakrabarti (Lab)]

With respect to the noble Lord, nobody is criticising the Minister for making the statement. The noble Lord is the distraction, not Section 19. We are criticising the Bill that cannot be stated as compatible. It is the legislation that we have a problem with, not the honesty of the Minister in saying, “I can’t say that I believe this to be compatible”. It might be politics, but politics is the process of legislative scrutiny. The objective of Section 19 was to force Ministers to put their money where their mouth is in the debate and to say whether they believe that this draft legislation complies. If they say, “I can’t be sure”, it is quite right for us to do what we are doing. With respect, this is smoke and mirrors and not to the substance of this Bill.

[Lord Wolfson of Tredegar (Con)]

It is certainly not smoke and mirrors. The force of the noble Baroness’s point is, “If you can’t make a Section 19(1)(a) statement, there is something irremediably bad with the Bill”. My point is that if you are legislating in a novel area, there may well be circumstances in which you cannot make a Section 19(1)(a) statement. A Section 19(1)(a) statement is a 51:49 statement that, in your view, it is compatible. If you therefore think that it is finely balanced as to whether it is, you cannot make a Section 19(1)(a) statement. It would be wrong in those circumstances for a Government to think, “I shouldn’t bring this Bill before Parliament merely because I take the view that it is 50:50”.

[Baroness Chakrabarti (Lab)]

I am grateful to the former Minister and sure that he listened carefully to how Section 19 was introduced into the deliberations of the Committee earlier, not least by the noble and learned Lord, Lord Hope. Members of the Committee have been pointing to the contradictions in the Government’s position around the compatibility of this Bill—Section 19(1)(b) on the tin and then something else in the ECHR memorandum. It is the clarity of the Government’s belief that Members of the Committee have for some hours this afternoon been looking for.

[Baroness Ludford (LD)]

To avoid the noble Lord, Lord Wolfson, having to be up and down too many times, I will jump in here. The noble Lord, Lord Carlile, pointed out that the Secretary of State’s inability to make a Section 19(1)(a) declaration was in relation to only one clause. The content of that clause was the proposed ban on political advertising across all broadcast media. One can see why that might inhibit a Section 19(1)(a) declaration, but it is not on the same scale as what many of us in this Chamber this afternoon maintain are the various and extremely serious breaches of the European convention commitment. It is apples and pears, or chalk and cheese—I am mixing my metaphors horribly. It is not a good precedent for saying why there cannot be a declaration of compatibility for this Bill. It is not on the same scale.

[Lord Wolfson of Tredegar (Con)]

I am grateful for that shortish intervention. Essentially it raises the same point that the noble Lord, Lord Carlile, put to me and, without any disrespect, I give the same answer. I am focused, as a matter of principle, on what Section 19 does.

Amendment 2, which has already been referred to by my noble friend Lord Sandhurst, disregards Section 3 of the Human Rights Act 1998, which is a very odd section. Uniquely in our law, it requires that other Acts of Parliament be interpreted:

“So far as it is possible to do so”


in accordance with the convention rights. We do not do that in any other area of our law.

The case law under Section 3 is extremely complex. As has been referred to before, Sir Peter Gross set this out in his review of the Human Rights Act. I would be entirely content if I could be sure that the current law on what Section 3 does remains the law. What we have seen, however, when we look at Ullah, Al-Skeini or other cases, is that what Section 3 means and how it is interpreted by the courts has moved. In those circumstances, the Government are right to exclude Section 3 of the Human Rights Act from the Bill by way of its Clause 1(5).

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[Lord Hannay of Chiswick (CB)]

I am most grateful to the noble Lord, because I was following with interest his argument, which seems to be that there are two sorts of obligation—those we incorporate in domestic law and international obligations—and the international obligations are less binding, important and necessary. Perhaps the noble Lord could tell me what the status of the UN charter or the Brussels treaty on NATO is. Does he mean that we, as a Parliament, could decide not to apply Article 5 of the NATO treaty? That would be a pretty serious statement to make.

[Lord Wolfson of Tredegar (Con)]

I am reluctant to give the noble Lord a private lecture on this, but I will set out a very short answer. I will be blunt but, I hope, legally accurate. The short answer to the noble Lord’s question is yes; we could do it. International treaties are not part of our domestic law. As far as our domestic courts are concerned—please let me finish and I will give way—if we were to legislate completely contrary to an international treaty, our domestic courts would have to abide by the Act of Parliament, because that is domestic law. Of course, that would put the UK in breach of the international treaty. It is not something I would recommend, but the noble Lord asked me a direct question about how the two interrelate, and that is a necessary consequence of being a dualist state. International treaties are not part of domestic law, unless and until they are incorporated.

[Lord Carlile of Berriew (CB)]

This could develop into a really interesting argument, I am afraid—between lawyers. The noble Lord just referred to the dualist theory, which of course is very important, but, in reality, international treaties are not usually entered into legislation because they are made under the royal prerogative. But that does not make them any less binding.

[Lord Wolfson of Tredegar (Con)]

I started my remarks by saying that international treaties are extremely important and that we should always legislate consistently with our international obligations, except in the most unforeseen and unusual circumstances. But that is not the question I was asked by the noble Lord, Lord Hannay. We are a dualist state. That is why we should object to these amendments, which seek to incorporate treaties by the back door.

[Baroness Chakrabarti (Lab)]

As a matter of fact, the European Convention on Human Rights was incorporated by the Human Rights Act 1998, the UN Convention on the Rights of the Child was incorporated by the Children Act and so on. These particular treaties have been given special status in our domestic law. I also take some exception to the idea that Amendment 4, which everybody can see, is somehow surreptitious or “back door”. We are having this debate because, by definition, some of us want this protection very much via the front door.

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[Lord Wolfson of Tredegar (Con)]

With great respect, the noble Baroness is wrong. The Human Rights Act did not incorporate the convention. Can I just finish what I was saying? It took certain articles of the convention and reproduced them in a schedule to the Act of Parliament. That is not incorporating the convention; it is reproducing certain articles of it in the Human Rights Act. The point is not relevant to today but, if I am going to be interrupted on a point of law, at least let it be right. One has only to look at Schedule 1 to the Human Rights Act to see what that Act did.

[Baroness Jones of Moulsecoomb (GP)]

Before the noble Lord sits down, I hesitate to butt into this very exciting conversation between some great legal minds. I will of course pore over it in Hansard tomorrow. The point about courts saying “Did the Government mean this or that?” is that we are passing very bad laws that are not explicit—that is the fault of the Government—and this will be one of them.

[Lord Wolfson of Tredegar (Con)]

I entirely agree with the noble Baroness that we should pass clear legislation. I think she used the word “exciting” to describe lawyers.

[Baroness Jones of Moulsecoomb (GP)]

It was a joke.

[Lord Wolfson of Tredegar (Con)]

That is the first time I have heard the word used. The noble Lord, Lord Carlile of Berriew, used the word “interesting”, which is at least better than “expensive”, which is the usual word used. On that, perhaps I should sit down.

[Lord Dubs (Lab)]

My Lords, as a non-lawyer, I have found the last few minutes absolutely absorbing. I have learned a great deal without having to pay any tuition fees. I shall peruse Hansard with a great deal of interest and will advise any law students to do the same.

Although I am not a lawyer, I will make two brief comments. For some years, I have served on the British delegation to the OSCE, the Organization for Security and Co-operation in Europe. It is slightly different from the Council of Europe, but it involves a lot of discussion nevertheless. I serve on its migration committee and we have had a lot of discussion about how we do things in this country and about how other countries behave.

What I have noticed in recent years is that the respect which we as a country have earned has been somewhat diminished, and I am asked, “Why are you doing this?” and “Isn’t this a departure?”. I remember some years ago, when we still had a lot of respect, I was asked what I thought in terms of the British experience of the rule of law and so on and how I would approach a particular issue; I ventured to indicate how I thought we would do it. But those questions are not being asked any more. We are no longer treated as a model that has earned international respect because of abiding by the rule of law and doing things properly and openly.

I would have thought this Bill has debased our reputation, certainly in countries that follow these issues, and I think that is a matter of enormous regret. I used to take pride in the fact that, in international gatherings, I came and represented a Parliament of a country that was treated well by other countries. They regarded us as an example to follow, and I fear that that is much less the case than it used to be.

I will briefly make one other point about public opinion. Of course, I am aware that what we do and what public opinion thinks is crucial. We cannot just act as if public opinion did not exist. I remember when I introduced an amendment in 2016 about refugees—Theresa May was then Home Secretary—public opinion influenced the Government’s attitude. Initially, she asked me to withdraw my amendment, and I said I would not and then public opinion woke up to what was happening: it was the television pictures of the Syrian boy, Alan Kurdi, drowned on a Mediterranean beach.

I have told this story before. The amendment was going through and I heard somebody shout at me in the street. Now, we know that normally, when people shout at us in the street, it is abuse because we are politicians. In this case, a woman shouted out: “Keep going with your amendment”. It made me realise that public opinion is not monolithic and opposed to refugees; it moves with the times. The sad thing is—I am not allowed to call anybody a liar, am I?

Illegal Migration Bill

Lord Wolfson of Tredegar Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of the noble and learned Lord, Lord Etherton, whose Amendment 69 I have signed. It would require detention conditions to comply with those set out in guidelines by the United Nations High Commissioner for Refugees. I need not repeat the arguments that the Committee well understands about the United Kingdom’s historic role in the refugee convention and other aspects of the post-war human rights settlement.

Like many noble Lords in this Committee, I have been in these debates for some time, so I understand that there is some dispute on the Government Benches about the UNHCR. The UNHCR says something; they say, “So what? It is just another woke NGO”. Well, it is not. The UNHCR has a special role in the convention. It is a UN body and it was given a special role in the supervision of the refugee convention.

I simply refer noble Lords to Article 35 of the convention, headed “Co-operation of the national authorities with the United Nations”. We were an architect of the convention and a key signatory to it; I am sure that every Member in this Committee wants to abide by it. Article 35 states:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention”.


This body was given from the beginning the very special role of supervising the convention. That is fair enough, is it not? It cannot just be that every nation gets to interpret the convention in its own way; that would not exactly be global governance.

[Lord Wolfson of Tredegar (Con)]

Is that not precisely what the Vienna convention on the interpretation of treaties provides for: that each nation interprets it? States have to relate to and deal with the body to which the noble Baroness refers, but that is separate to the legal question of what the convention actually means. These are two distinct legal questions, are they not?

[Baroness Chakrabarti (Lab)]

Well done. Article 35 continues:

“In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information”.


The bottom line is that the UNHCR is not just any other body, think tank, NGO or pressure group. It is a specific organ of the United Nations that was commissioned right at the beginning, when this convention was drafted, to have a special role in its supervision. That is why I support the noble and learned Lord, Lord Etherton, in suggesting as a bare minimum that our detention provisions ought to comply with guidelines—they are only guidelines—set out by the UNHCR. We can have these lovely little Oxford Union interventions from Members opposite, but the bottom line is that if we do not comply—

[Lord Wolfson of Tredegar (Con)]

I am sorry, but this is not an Oxford Union intervention. There is a clear distinction between an obligation to co-operate with a body in the implementation of the convention and that body having a role in the interpretation of the convention. They are different legal concepts and, with great respect, the noble Baroness knows that; it is quite wrong to elide one with the other. “Interpretation” does not appear in Article 35 and is deliberately excluded.

[Baroness Chakrabarti (Lab)]

I am very grateful, obviously, to the noble Lord for his intervention. I repeat:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees”.


This was the body given special status in the drafting of the very precious convention that was drafted with key instigation by the wartime generation in this country for reasons that I need not repeat.

If we do not comply with guidance from the UNHCR in relation to the detention of asylum seekers and refugees, who will? For that reason alone, I am very glad to support the noble and learned Lord, Lord Etherton.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak briefly on Amendment 69 in the name of the noble and learned Lord, Lord Etherton, and others. My intervention is prompted by a meeting I had earlier today with the disabled Greens group, specifically on the question of meeting the needs of disabled asylum seekers and refugees. That caused me to look up the details of the UNHCR Detention Guidelines, specifically point 9.5, which says that states may be required to make reasonable accommodations to ensure that they meet the specific needs of disabled asylum seekers. It says:

“As a general rule, asylum-seekers with long-term physical, mental, intellectual and sensory impairments should not be detained”,


and that accommodation needs to be accessible.

The disabled Greens raised with me their particular concern about the barges, about which the Government seem very enthusiastic and to which they have been paying a great deal of attention. It is difficult to see how those barges could possibly meet the accommodation requirements of disabled asylum seekers.

A number of noble Lords referred to the historic situation at Manston, but we have seen the Chief Inspector of Prisons expressing great concern about what is happening there right at this moment. The focus has very much been on children but, if we are not able to identify and assist children appropriately, I really wonder whether we are also able to identify and assist refugees with disabilities, who may have specific needs. Can the Minister say how the Government will ensure that they meet the needs of asylum seekers with disabilities?

Finally, without in any way daring to intervene in a discussion between two lawyers on a fine technical point, I just note that Article 35 of the convention, referred to by the noble Baroness, Lady Chakrabarti, says that:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees”.


The relationship does not look much like co-operation at the moment.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am afraid I rise again to make a point that really should not have to be made. I made the point on a previous group that we are a dualist state where international law is not part of domestic law unless and until it is so incorporated by this Parliament. Later, perhaps in a question, the noble Baroness, Lady Chakrabarti, rather poured scorn and said that this was some sort of technical dualist point. It is not a technical dualist point; it is a fundamental part of our constitution.

Another fundamental part of our constitution is that, when we sign up to international treaties such as the Vienna convention, we have to look at what they actually say. This is not an Oxford Union debating point for two reasons: first, it is far more important than that; and secondly, I have never been a member of the Oxford Union. Article 31 of the Vienna convention, on the interpretation of treaties, says:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.


Each state therefore has to interpret its obligations under a treaty.

Some treaties, such as the European Convention on Human Rights, have a court attached to them. If you sign that treaty and sign up to the court, you are obliged to abide by the rulings of the court, in so far as those rulings emanate from the treaty. For example, Article 46.1 of the European Convention on Human Rights provides that the UK has to abide by any judgment given against the UK by that court. That is what we signed up to in the treaty. The refugee convention does not have a court attached to it. Therefore, this country, like every other, has to interpret the treaty bona fide—in good faith.

What, then, is the position of the UNHCR? It is exactly as the noble Baroness, Lady Chakrabarti, read out from the treaty, but it is not the gloss that she put on it. The word “interpret”, which she used in her speech, does not appear in the treaty. That is not an accident, because the states were not going to give the UNHCR the power—[Interruption.] I will give way if the noble Baroness, Lady Chakrabarti, wants to make an intervention; otherwise, I cannot hear her.

[Baroness Ludford (LD)]

If the noble Baroness, Lady Chakrabarti, does not want to take that opportunity, I would quite like to. The noble Lord makes the point that Article 35 of the refugee convention does not have the term “interpretation”, but it does say, as the noble Baroness quoted:

“The Contracting States undertake to co-operate with the Office of the … High Commissioner … in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”


I suggest that that is not a million miles from assisting in the common interpretation of the convention.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Baroness and the noble Lord. Acoustics are not always with me. I literally read from Article 35 and so did not use “interpret”. I used words such as “co-operate”. I think that I might have said “supervise”—I believe there is a supervisory jurisdiction. At this late hour, I really do not think that this should be a great beef between lawyers. I just say that there is a duty to co-operate with the UNHCR, and it has a special position as an organ of the UN that we set up. That is why I agree with the noble and learned Lord, Lord Etherton, that our detention policies ought to have serious regard to the guidelines from the UNHCR.

[Lord Wolfson of Tredegar (Con)]

I may have misheard, but I thought I heard “interpret”. I think that other noble Lords did as well. The Official Report will make it clear, no doubt. With great respect to the noble Baroness, in legal terms there is a million miles between a duty to co-operate and giving that other party the right to interpret. There is a huge difference between this country as a state saying that the treaty means whatever the UNHCR says it means and, on the other hand, saying that we will co-operate with the UNHCR to enable it to fulfil its obligations under the treaty but we as a state arrogate and retain the right to arrogate to ourselves in good faith and bona fide what that treaty actually means. It may sound like one is drawing fine distinctions but there is a very clear distinction, as lawyers will tell you, between the right to interpret a document, whether that be a contract or a treaty, and co-operation in the implementation of whatever that contract or treaty means.

[Baroness Ludford (LD)]

The noble Lord is a good lawyer and I am not, and I know that time is pressing on. However, it says more than just that we should co-operate with the UNHCR. It asks contracting states to facilitate the UNHCR’s

“duty of supervising the application of the provisions of this Convention”—

I emphasise “supervising”. I do not know how that terminology was arrived at but it is saying more than that the UK must co-operate with the UNHCR. The UNHCR has a sort of supervisory duty, and I think that is more than what the noble Lord is saying.

[Lord Wolfson of Tredegar (Con)]

I am not focusing on the supervisory duty. For these purposes it does not matter whether we have a duty to co-operate once a month or once a day, or to get in touch with it every half an hour. That is just on the scale of the nature of the co-operation duty. My point, and I submit that it is a fundamental one, is that there is a difference in essence—a conceptual distinction—between a co-operation duty with the UNHCR as to whatever the treaty means and agreeing that whatever the UNHCR says the treaty means is what it means. It is not an accident that interpretation was excluded from Article 35. Having made that point about five times, I will sit down.

[Lord Etherton (CB)]

Perhaps I could just add to all of this. I am sorry to do so; it is a bit unseemly for the lawyers to start arguing among themselves but I think I ought to record that I do not agree with the proposition of the noble Lord, Lord Wolfson, that the effect of Article 31 of the Vienna convention means that this country or any country can give to such a refugee convention any meaning it wishes to. It has to apply, under Article 31 of the Vienna convention, the wording of the refugee convention, bearing its ordinary meaning in the context of what it proposes.

This is a sideline. The Committee needs to concentrate on what the role of the UNHCR is. I think that it is perfectly obvious to virtually everybody that it has a special supervisory role under the refugee convention, as interpreted in accordance with the Vienna convention, in the application and the practical application of the refugee convention. What I was talking about in my amendment, supported by the noble Baroness, Lady Chakrabarti, was giving due weight to such a body. There is no other body that has that role. This body does, and it has been given by the United Nations.

Illegal Migration Bill

Lord Wolfson of Tredegar Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble Baroness, Lady Chakrabarti, threw down a verbal gauntlet, so let me try to pick it up and answer the central question that she posed. That was this: why should the UK think that it does not have to abide by Rule 39 indications from the court in Strasbourg? The short answer is that the Strasbourg court does not have jurisdiction to grant those Rule 39 indications and certainly not in the manner in which they are currently granted. I will develop that point shortly, but the fact that it is a jurisdictional point—I would say, with respect, that jurisdiction ought to unite all lawyers, even commercial lawyers—means that whether the court has jurisdiction or not is pretty important. I will focus my remarks on Clause 53 and the amendments thereto. I yield to nobody in my respect for the rule of law.

There is a great danger, which happens here and in other places, of the following syllogism being rolled out: the rule of law is a good thing, this—whatever issue you are talking about—is a good thing and therefore this is part of the rule of law. Well, it is not always. Even what is incorporated within the rule of law is a matter of some debate. One can compare the famous work of Lord Bingham, which is expansive to the work of Sir John Laws, which is rather narrower. But this is not about whether we have respect for the rule of law. It is about whether the Strasbourg court in fact has jurisdiction. To put the matter in that way shows respect for the rule of law, because jurisdiction is fundamental to that. Certainly, as far as I am concerned—I am sure as far as the Minister is concerned as well— words such as “game” and “swindle” are not entirely appropriate ways of approaching this topic.

I spoke on this point on Second Reading; we are now in Committee and I am not going to give a Second Reading speech. I expanded on it for those few people who did not read Hansard in the Daily Telegraph a week or so ago. What happened since Second Reading —I touched on it in my piece in the Telegraph—is, as my noble friend Lord Sandhurst mentioned, a powerfully argued paper from Professor Richard Ekins at Policy Exchange. It is unfortunate that in opening the debate on this the noble Baroness, Lady Chakrabarti, did not engage with any of the arguments in that paper; I do not think that she even mentioned it. The paper is a fine piece of legal work. You can agree or disagree with the conclusions. I am going to be disagreeing with the conclusions of the Joint Committee on Human Rights. That, I hope, does not indicate any disrespect or discourtesy towards any of the people who sit on that committee; I just disagree with their conclusions. But I am going to deal with their argument because, if I do not, it is difficult to see how the land actually lies. Again, as my noble friend mentioned, we have a preface and a foreword by Lord Sumption the noble and learned Lord, Lord Hoffmann, two names that, frankly, should make any lawyer sit up and take notice. Even if one does not agree with the conclusion, one has to engage with the arguments.

The main thrust behind the amendments and the clause stand part debate is that the clause breaches international law. That raises the question of whether we have an international law obligation to abide by Rule 39 indications. The short answer is that, no, we do not. Why do we not? Because we have signed up in the convention to abide by judgments of the Strasbourg court against the UK and Article 46(1) where the judgment is of the full court. This is not a final judgment—it is not of the full court—so we have no obligation under Article 46(1).

The Strasbourg court then tries to ground its jurisdiction in Article 34. The reason why it does that— I will not repeat what my noble friend said—is that there is a history to this. There was a suggestion in the draft, back in the 1940s, that the court would have the right to give interim relief. That was deliberately excluded. People tried to persuade the court that it should have that power, but that was rebuffed. The court gave a series of judgments setting out that it did not have that power, but then it did a volte-face and by a majority—I think of one, but I may be mistaken—it held that it did have that power. Of course, the court can change its own jurisprudence, but what it cannot do is to arrogate to itself the jurisdiction. In international law, the court has only the powers that the member states have given to it.

What does the court do? The court seeks to ground its power in Article 34 of the convention. What is Article 34? It is the right not to have your right of access to the courts impeded. I accept that there will be cases where you could justify interim relief and Article 34; a death penalty case would be one of them, as you cannot unscramble that later on, for obvious reasons. However, there will not be many cases like that. The Rwanda case last year was not a case like that. That was a case where the High Court, the Court of Appeal and the Supreme Court had all held that the Government’s promise to bring people back if they were to win meant that there was no impedance of their human rights. That point was decided three times in this jurisdiction, so that was certainly not an Article 34 case.

It also does two other things. First, it shows that if the Strasbourg court is doing a balancing act under American Cyanamid, it is odd that it reached completely the opposite conclusion from that reached by three courts here when applying that approach. Secondly, it belies another point put to the Committee by the noble Baroness, Lady Chakrabarti, in relation to Clause 52. She made the point that if courts here have the ability to grant interim relief, Strasbourg will not interfere. Three courts here heard the Rwanda case and Strasbourg still interfered. I am not sure that that argument works.

Where I agree with the noble Baroness, Lady Chakrabarti, is that there is a procedural problem as well as a substantive problem. The procedural problem cannot solve the jurisdictional problem but makes it worse. Why is there a procedural problem? There is a procedural problem because the rules and procedures do not cater for this jurisdiction, as it has been created out of whole cloth. That is why we have a system at the moment where there is no effective natural justice, where these injunctions are given and indications are made without the state being heard and, importantly, without there being a proper opportunity for the state to put its case even after the indication has been made. That is why these orders are given by a single judge when—the detail is in Professor Ekins’s paper—under the structure of the Strasbourg court a single judge should not have and does not have the powers to do this.

Does this mean that there are no circumstances in which a Rule 39 order can be justified? No, I do not go so far as that. I have already identified a death penalty case as such a case. However, one needs to have a proper review of the court’s jurisdiction. One also needs to have a proper procedure; again, I agree with the noble Baroness, Lady Chakrabarti, who said that it ought to be possible to create such a procedure. It ought to be possible and it must be possible. If one therefore has a Rule 39 indication with a proper procedure which is grounded in Article 34, which recognises the principle of subsidiarity that is now inherent in the court’s jurisprudence and which gives the state an opportunity to come back in a proper timeframe against the order that has been made, I suggest all of that is the way through.

I will take two minutes, if I may, to say something about the report of the JCHR, because it is an important piece of work and I have read it carefully. On page 45, there is a heading before paragraph 129:

“What are the legal implications of this clause?”


This is Clause 53. It goes on to say that some commentators have suggested that

“the UK is not bound to comply with”

Rule 39 orders. It goes on:

“This is particularly because Article 46 of the Convention, which concerns the ‘Binding force and execution of judgments’, only commits the UK to abide by ‘the final judgment of the Court’ and does not mention interim measures”.


I agree with that, except it is only judgments against the UK, but we will let that pass. It goes on to say that the Grand Chamber in Strasbourg

“has held that a failure to comply with interim measures would amount to a violation of Article 34”.

That is right; that is what it has held. It goes on to say, in paragraph 130:

“It is therefore a binding obligation, as a matter of international law, for the UK to act in accordance with interim measures”.


What is the force of that “therefore”? Because the Strasbourg court has held—in the last sentence of paragraph 129—that it would be a violation of Article 34, it is therefore a binding obligation. With the greatest respect to the Committee and whoever authored that part of the report, that is what—before the noble and learned Lord, Lord Woolf, banned the use of Latin in our domestic courts—used to be called an ipse dixit. That “therefore” is a conclusory statement; you simply cannot justify the jurisdiction by saying that the court itself says that it has jurisdiction. That is an entirely circular argument. If I could win all my cases with reasoning like that, it would be a very good thing, even though I am only a commercial lawyer.

[Baroness Ludford (LD)]

I beg the noble Lord’s indulgence in standing up and asking him a question. I was piqued by a tweet by the noble Lord, Lord Anderson of Ipswich, who is not in his place. He intervened on a Question from the noble Baroness, Lady Chakrabarti, last Tuesday. The noble and learned Lord, Lord Bellamy, was replying. The noble Lord, Lord Anderson, pointed out:

“The member Governments of the Council of Europe, including our own, have repeatedly confirmed the binding nature of interim measures under Rule 39—in the Committee of Ministers, and in the Izmir and Brighton declarations. Is the Minister proud of the United Kingdom’s record of compliance with interim measures?”


The noble and learned Lord, Lord Bellamy, replied:

“On the general point about acceptance in practice of the position of interim measures under the convention, there are two legal views”.—[Official Report, 6/6/23; col. 1244.]


The noble Lord, Lord Wolfson, and others have talked about the paper by Professor Ekins for Policy Exchange and that is a view, but the Minister did not confirm last week that he shared that view. Clause 53 does not actually say that the Government think that interim measures from Strasbourg are not binding. The tweet by the noble Lord, Lord Anderson, noticed that the Minister

“declined to commit to the long-standing governmental position that”

interim measures

“are binding in international law. Views can always change, but surely the government has one”.

What we have not established is what the view of the Government, as opposed to that of Policy Exchange and Professor Ekins, is on whether interim measures from Strasbourg are binding. Our long-standing practice has been to comply with those interim measures. That is what is more important. With full respect to Policy Exchange and Professor Ekins, that is all very interesting, but what is the Government’s view? I do not think that what we are getting out of this whole affair is finding, among this thicket of confusion, what the position of this current British Government is on whether interim measures from Strasbourg should be observed. Indeed, on the Rwanda case, they did observe them, so that is quite different from commentary from Policy Exchange.

[Lord Wolfson of Tredegar (Con)]

I am grateful for that short intervention. I am now not sure whether I am intervening on the noble Baroness’s speech or she is intervening on mine but she made a couple of points. I do not know whether she has seen my notes because I was going to come to the state practice point in a moment. Frankly, I should not really give this away but that point is probably the best point against the arguments that I am running. I am a little surprised that the noble Baroness, Lady Chakrabarti, did not mention it but I shall do so; it is the best point. I am not speaking for the Government so I am not going to divine what is in the mind of the noble and learned Lord, Lord Bellamy, or that of the Minister who will respond; they can speak for themselves and I will speak for myself.

What I was saying is twofold. First, I was not saying that there are no circumstances in which you cannot justify a Rule 39 order. I thought I had made it clear that, if you can justify it properly under Article 34 in the particular circumstances of the case—such as a death penalty case—and there are proper natural justice provisions, it could be justified. That is my first point.

My second point is that the mere fact that states abide by Rule 39 indications will not, I suggest, be enough for state practice as a matter of international law. The fact that a court tells me to do X and I do it does not show that I accept that the court has jurisdiction to tell me to do it. I might choose to do it because I do not want to pick a fight with the court. One has to find a more detailed and forthright statement that is sufficiently unambiguous, and then look at that coupled with everything else.

I have delayed the Committee long enough. On this point, I direct the noble Baroness, Lady Ludford, to Policy Exchange, on which she is absolutely right. The point made by the noble Lord, Lord Anderson of Ipswich, was picked up and dealt with by Professor Ekins in that report.

[Lord Carlile of Berriew (CB)]

My Lords—

[Lord Wolfson of Tredegar (Con)]

Before I give way, may I make one other short point? I respectfully suggest that state practice cannot give a court jurisdiction when it does not have it. All state practice can do is go to the interpretation of a treaty. It does not go to the creation of a power or a jurisdiction; that point may not be one to discuss as the clock strikes midnight, but now is a good time for me to give way to the noble Lord, Lord Carlile.

[Lord Carlile of Berriew (CB)]

I am grateful to the noble Lord. I draw his attention to the current, as of today, UK Visas and Immigration guidance, Judicial Reviews, Injunctions and Applications to the European Court of Human Rights. Where it deals with Rule 39, it says that

“a Rule 39 indication is similar to an Administrative Court … injunction but is”,

to state the obvious, made by the European Court of Human Rights. It goes on:

“Where you have been notified that a rule 39 indication has been made, you must … defer removal immediately”


and,

“where the person is detained, make sure this development is considered in relation to any decision to continue with detention”.

In other words, in their current guidance on the subjects that we are concerned with, the Government regard these Rule 39 rulings as binding. That is what the guidance tells the members of the public who have bothered to look at the Government’s own website this evening, as I have.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I think that goes back to the point I was making a moment ago. With the greatest respect—I do not know whether the noble and learned Lord, Lord Hope, is going to intervene; I will give way if he wants to do so, of course.

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord. It strikes me, in reading this clause, that it proceeds on the basis that the UK is bound by the decision. I greatly respect the analysis that the noble Lord, Lord Wolfson, has given us—I am very much in sympathy with it—but, like it or not, the Government’s position has been that it is binding. That is why the clause is so carefully drafted.

[Lord Wolfson of Tredegar (Con)]

On that, I entirely agree: the clause is very carefully drafted. The Government’s position—as I understand it and I will stop in a moment so we can actually hear from the person we want to hear from, the Minister—is first that they wish to, and will always, abide by international law. Secondly, it gives the Minister a discretion in some circumstances not to abide by Rule 39 orders. It seems to me that if one puts those together the Government’s position has to be that there are at least some circumstances in which you do not abide by a Rule 39 order without breaching international law; otherwise, the two propositions which I set out cannot be put together.

I hope that is an answer to the noble and learned Lord’s question. I am not sure whether the smile indicates it is or is not—

[Lord Hope of Craighead (CB)]

I think we really have to hear from the Minister, frankly. The clause does set out the various objections and by our jurisprudence the procedures are very defective and I can well understand why one is very uneasy about the whole structure of the rule. The Minister really has to explain the Government’s position and I very much agree with the noble Baroness, Lady Ludford, that that question needs to be answered.

[Lord Wolfson of Tredegar (Con)]

In which case, I will give one final statement before I finish. On this we all agree—the answer to this issue, I suggest, lies ultimately in Reykjavik. The answer lies in the engagement between this Government and other Governments with the Strasbourg court to improve the jurisprudence, to set the jurisdiction on a proper footing and to improve the procedures. In that way, for those of us—and I include myself—who want this country to remain part of the convention and play a part in its jurisprudence, that is surely the way forward.

[Lord Paddick (LD)]

If I understand the noble Lord, Lord Wolfson, correctly, he is saying that the solution is not Clause 53 but to engage with the court to ensure that proper processes are followed when it comes to Rule 39 rulings.

[Lord Wolfson of Tredegar (Con)]

My point is that I am supporting Clause 53. It is not inconsistent to say that we will have Clause 53 and will engage with the court.

Illegal Migration Bill

Lord Wolfson of Tredegar Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, the refugee crisis in a global one and any sustainable solution needs to be international. If we do not comply with our international obligations, as set out by the noble Baroness, Lady Chakrabarti, we are unlikely to achieve the international co-operation necessary to deal with the crisis. I am afraid I do not agree with the argument put forward by the noble Lord, Lord Lilley, that because other countries do not abide by their obligations, we should not abide by ours either.

The noble Lord, Lord Green of Deddington, talked about the cost. The Government’s own impact assessment says that implementing the measures in the Bill will cost the country more than the status quo. In response to the noble Lord, Lord Horam, the impact assessment says there is an “academic consensus” that there is no evidence that the measures in the Bill will have a deterrent effect. Opinion polls may say that illegal migrants should not be allowed to settle in the UK but we are talking about genuine refugees; we are not talking about illegal migrants.

We support all the amendments in this group and Amendment 5 in particular, which we will support if the noble Baroness, Lady Chakrabarti, chooses to divide the House.

[Lord Wolfson of Tredegar (Con)]

My Lords, I have the misfortune to differ from the noble and learned Lord, Lord Etherton. I know that he will not think that this is any personal discourtesy. Let me take a few minutes to explain to the House why I respectfully disagree.

[Noble Lords]

Oh!

[Lord Wolfson of Tredegar (Con)]

Noble Lords say “No”; I think there are important points of constitutional principle here, and if that means we take another two and half minutes over it, so be it.

The starting point is that we are, as the noble and learned Lord said, a dualist state. That means that the treaties listed in the amendment are not part of our domestic law. If you were to go to court and try to rely on, for example, the UN Convention on the Rights of the Child, it does not give you a right in domestic law. I will come back to that point in a moment.

Illegal Migration Bill

Lord Wolfson of Tredegar Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

[The Lord Bishop of Manchester]

My Lords, I support Motion A1 but will speak more particularly to Motion U1 in my name, to which the noble Baroness just referred. It proposes that if an age-assessment judicial review is in progress, removal should be delayed until its completion. I welcome comments from Ministers that those subject to an age dispute will be accommodated in an age-appropriate setting here in the UK, but can the Minister confirm that will be the case in a third country? Will Rwanda, for example, be informed that a young person is subject to an age dispute, and will the Rwandan Government then be required by the UK to keep that person separate from other adult residents and to supervise them properly as a child until the courts have made a judgment?

The Secretary of State has a legal duty to have regard to the need to safeguard and promote the welfare of children. Can the Minister therefore say how the welfare of a child will be protected by not allowing judicial review to act as a temporary delay to their removal? The Government appear to be arguing that when a child legally challenges an age assessment, it is simply a spurious attempt to use legal methods to postpone removal. However, as we know, the majority of children are found to be children after local authority assessments, so it is more likely that what is happening is an attempt to protect their proper right to be treated as a child. Can the Minister therefore take the opportunity at least to confirm that when an individual’s age is disputed, they will not be subject to removal before having met with a social worker and a child protection team for a more comprehensive age-assessment process?

The determination that an individual may be a child and therefore could deserve all the rights a child is due should and must be reason enough to prevent their removal. When the implications for children are so grave and lifelong, it seems that to not delay a child’s removal from the UK until those questions are resolved is immoral. I plead with the Government to recognise this as a failure of safeguarding, which we are all trying to treat at the highest possible standard. However, in view of the lateness of the hour when we are likely to reach a vote on this matter, and the many other matters your Lordships’ House has to deal with tonight, I am not minded at present to press this Motion to a Division.

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not know whether I should declare an interest as a pseudo-lawyer, or perhaps as Mickey Mouse. I am not entirely convinced that framing the debate in that way is appropriate.

I have a number of things to say. First, the fact that Motion A1, in the name of the noble Baroness, Lady Chakrabarti, has been rephrased as it has been, shows that those of us who argued that the previous version was substantive, and not interpretative, were right. However, the Motion as redrafted is also improper because it does two things—here I again respectfully part company with the noble and learned Lord, Lord Etherton. He read the Motion but omitted words in its second line. Let us have a look at what it actually says:

“In interpreting this Act, regard shall be given to the intention that its provisions”—


that refers to the provisions in the Bill—

“and any act and omissions made as a result, are intended to comply”.

Even now, it is not properly an interpretative provision, because it does not just apply to interpreting the words; it is also said to apply to any acts and omissions made under the Act, as it will become. That still has substantive consequences, and the effect is still—this time in an evening rather than in an afternoon—that we are effectively incorporating these treaties into our domestic law.

That is why the words

“and any acts and omissions made as a result”

are still objectionable, but the rest of it, while maybe not objectionable, is unnecessary. As I mentioned on Report, the law of this country has always been that, in the absence of express words to the contrary, all statutes are presumed to be in accordance with our international obligations. That was most recently set out by Lord Dyson, speaking for the Supreme Court in the Assange case, when he said that

“there is no doubt that there is a ‘strong presumption’ in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations”.

The fact that we now have to go through the contortions of trying to fit this reformulated amendment into interpretation when it still has substantive consequences shows that this is a road down which we should not be going at all. In so far as the intention is that legislation should be interpreted in line with our international commitments, that is already part of the law. In so far as it says that

“any acts and omissions made as a result”

of this Bill are to be so interpreted, that has substantive consequences.

I respectfully suggest that those points are not those of a pseudo-lawyer, nor are they Mickey Mouse points. If I may finish where I began, it is somewhat unfortunate that that is how they are being described.

[Lord Hope of Craighead (CB)]

My Lords, I have the misfortune to disagree with the noble Lord, Lord Wolfson. I support entirely what the noble and learned Lord, Lord Etherton, said. The key words in this reformulated amendment are “In interpreting this Act” and “regard”. It would not write these conventions into our law, as the previous amendment was in danger of doing. This a pure interpretation provision, and it is entirely consistent with the way the courts approach these various conventions. The assumption is that the United Kingdom, having signed up to the conventions, will respect them in the formulation of its provisions in our domestic law. The court applies that principle in finding a meaning of the words before it in statutory instruments and in primary legislation. This is entirely in accordance with the way the courts approach the matter. The key words are, “In interpreting this Act”, and “regard”. It is not binding; it is just that regard will be had. That is the way the provision should read. I support the amendment because it is entirely orthodox and consistent with principle.