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.

--- Later in debate ---

[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.